January 23, 2022 / by 

 

“Let’s Go Brandon!” Straka’s Cow Manure

Brandon Straka did not start fundraising for the cops whose assault he cheered …

… Until a week after his second batch of leniency letters started coming in, and over 45 days after he pled guilty.

In fact, there’s no evidence in the public record that Straka ever gave any of that money to cops, not even the 75% he claimed to plan to donate, much less the 25% he was skimming from the top. There’s just a dated claim that it would be donated “at the conclusion” of a year that ended 20 days before the filing claiming it would be donated.

Since January 6, Brandon has spent a lot of hard time reflecting on his role in the events that took place that tragic day. He has offered strong condemnation for any violence used that day, especially the violence perpetrated against police. Additionally, Brandon has been actively using his platform to support law enforcement officers. Upon visiting the #WalkAway Foundation website, the first option presented is to donate to the “Refund the Police” initiative: “#WalkAway will donate 75% of the funds raised to pro-police organizations in [the fourteen (14) cities most affected by defunding initiatives]. The other 25% will be used for the cost of overhead for this campaign.”2 This initiative will close at the conclusion of this year; and is close to having raised over $18,000.00 at this time.

2 See #WalkAway Foundation Homepage last accessed Dec. 14, 2021, available at https://www.walkawayfoundation.org/.

That’s important because Brandon Straka really wants to continue doing such grifting as a public service in lieu of having Probation monitor his social media and finances, much less serve jail time for his role in inciting an insurrection. He even asks to pay $5,000 as a fine to be allowed to dodge further scrutiny of his grift.

The Defendant respectfully requests that he be sentenced to either a terminal disposition of time served for the two days he has already spent in custody, or in the alternate, a term of home confinement and community service. Defendant requests that he not be placed on probation. Defendant also requests that the Court impose the maximum fine permitted for this offense, which is $5,000.

[snip]

If the Court would allow Brandon to have included in his sentence a stronger portion of community service rather than a sentence of Probation, the country at large will be better served. The nature of Brandon’s job requires that he often travels, making supervision more difficult and costly—and to what end? Brandon has already been on Pretrial Release for nearly a year with no violations. He clearly has the capability to contribute to the greater good through fundraising and leading others into service with him. While the Probation Office’s Recommendation sees Brandon’s following as a reason for concern3, it is the Defendant’s belief, and Counsel for the Defendant’s belief, that his talents can be put to better use than verifying that he is in compliance with certain conditions of Probation—that if he is given true freedom, that he will use that freedom in service of his country.

[snip]

Brandon also objects to the recommendation by the Probation Officer that he be subjected to a discretionary condition of Probation that monitors his electronic communications service accounts, including email accounts, social media accounts, and cloud storage accounts. Brandon also objects to his financial activity being monitored by the Probation Office. These discretionary conditions of Probation are not sufficiently relevant to the offense committed. In United States v. Taylor, 796 F.3d 788 (7th Cir. 2015), the Seventh Circuit reversed a restriction on the defendant’s computer ownership and internet access in a bank larceny case, stating that the restriction was not reasonably related to his prior conviction for incest. In Brandon’s case, emailing, using social media, and using cloud storage has nothing to do with his offense.

3 The government has never alleged, and there is no evidence, that Brandon used his following to commit any criminal activity. Brandon is charged for conduct he committed at the Capitol in his personal capacity.

Whether or not there is evidence that Straka used his online presence to prevent the peaceful transfer of power (and there is, though DOJ may have discovered it after entering into this dud plea agreement), Straka’s own story materially conflicts regarding what he did on January 6, 2021.

Straka’s own letter to Judge Dabney Friedrich implies that he went directly from Trump’s speech to the Metro and because he did so he had no way of knowing there was a violent riot going on.

I sat in the front row at the Ellipse and listened to the President of the United States speak. He concluded by telling the crowd that we were all now going to march “peacefully” to the Capitol. Everything felt perfectly normal and exactly in accordance with the schedule of events for that day. I then walked to the DC Metro On the way to the Capitol, I began getting text messages from people I knew who were at home watching the news on television indicating that people were going inside the Capitol building. Shortly after, I started getting numerous messages from the other scheduled speakers, some asking if our event was still happening, if it was now cancelled- it was total confusion. I was of 2 minds at this point. Either,

#1) The event is still happening and I’m still speaking, and that’s what I came all the way to DC to do. Or

#2) The event may no longer be happening, but SOMETHING is going on at the Capitol right now, and I want to be there to capture footage of whatever it is that’s going on. [my emphasis]

His sentencing memo describes that he came to DC to speak on January 5, and only stayed over because he was one of the very inflammatory people who were offered speaking slots on January 6 but who got canceled (!!!) at the last moment.

Prior to the January 6, 2021 rally at which then-President Donald Trump was set to speak, Brandon was set to speak at a rally held at Freedom Plaza on January 5, 2021 and travelled to Washington, D.C. for that purpose. Brandon remained in Washington, D.C. after the rally on January 5, 2021, as he was a potential slated speaker at a rally the next day. On the morning of January 6, 2021, Brandon arrived at the Ellipse at 5:00 a.m. in anticipation of then-President Trumps’ rally to start. Up until the time Brandon arrived at the event, he believed that he might speak at that event.

More problematic still, Straka’s sentencing memo describes that in-between Trump’s rally and the riot, Straka went to the Willard Hotel, where a bunch of his associates were plotting to steal the election (he doesn’t mention that fact), and where his “security guards” alerted him that it was too dangerous to walk the 28 minutes to the Capitol, which is why he instead took the Metro to the far side of the Capitol, spending perhaps 38 minutes in transit.

When President Trump concluded his remarks around 1:00 p.m., a wave of protestors left the Ellipse and headed toward the Capitol. At this time, Brandon left the Ellipse and traveled to the Willard Hotel to meet with two of his employees who were designated as security guards. Upon the advice of his security guards, Brandon did not participate in the march to the Capitol and instead took the Metro to the Capitol. While riding on the Metro, Brandon began receiving push notifications on his phone about what was happening at the Capitol. The Metro did not stop at the Capitol, and Brandon got off at the next stop—which was roughly an 18-minute walk from the Capitol.

By the time Brandon arrived, at around 2:40 p.m. (a full twenty minutes after the Capitol had been cleared), the outer barriers and fencing that had previously surrounded the Capitol were largely displaced. Brandon arrived and approached the East side of the Capitol, where things were calmer; and Brandon did not notice anything out of the ordinary during most of his walk to the Capitol.

And that version is off by at least two and possibly 22 minutes off from Straka’s sworn statement of offense.

Straka got off the metro on January 6, 2021 sometime between 2 p.m. and 2:20 p.m. He then knowingly entered the restricted area at the U.S. Capitol Grounds.

The revised story would have him arriving to the Capitol seven minutes after (prosecutors noted in their own sentencing memo) he was informed his speech was delayed because “they stormed the Capitol.”

At 2:33 pm on January 6, 2021, Michael Coudrey, the national coordinator for Stop the Steal, sent a message to a group chat telling those in the chat that the event that Straka was scheduled to speak at would be delayed because “They stormed the capital[sic].”

And that’s important, because Straka claims that when he said some inflammatory things on social media, he didn’t know about the violence.

Brandon made statements on social media that were in retrospect irresponsible and potentially inflammatory. Any statements Brandon made must be considered in context with the fact that Brandon had not witnessed the violence committed on the west side of the Capitol and he had not seen what was broadcasted on television. Once understanding the full context of the events, Brandon retracted and removed his prior statements.

Finally, it’s curious that DOJ is relying on a ProPublica story for the notice from Coudry (to say nothing of Ali Alexander’s warning, “Everyone get out of there … The FBI is coming hunting”). That’s because Straka claims to have provided prosecutors passwords to whatever phones he still had in his possession when the FBI searched his apartment.

Brandon cooperated fully with law enforcement, including providing two proffers and turning over the password to all devices seized as part of the search warrant executed on his apartment. Brandon provided information on individuals the government was investigating in separate cases and answered all questions posed by the government.

There’s abundant evidence that Straka is bullshitting prosecutors, and was bullshitting them when he got a sweet plea deal.

Indeed, with the inconsistencies between his letter to Dabney Friedrich and his own sentencing memo, the evidence shows he’s bullshitting Judge Friedrich.

I don’t know what excuses Probation scrutinizing Brandon Straka’s grift more closely than the FBI. I don’t know what targets DOJ was so desperate to implicate that they missed the target sitting in front of them.

But even his own sentencing package makes it clear he’s shoveling cow shit.


Special Master Barbara Jones Turns Over Rudy’s Chats

After much delay, the Special Master reviewing Rudy Giuliani’s phones, Barbara Jones, has released an update. It reveals that she released a bunch of materials to DOJ on January 19.

Those include:

  • The balance of 25,629 chats and messages that post-date January 1, 2018 from one of Rudy’s cell phones
  • From that same phone, 56 chats and messages that Rudy had initially claimed privilege over but for which he either withdrew or chose not to challenge Jones’ designation that they were not privileged
  • 3,204 chats and messages from between December 1, 2018 and May 31, 2019 from Rudy’s other devices, none of which he said were privileged (there should be eight devices; FBI seized 16 devices total)

These releases are in addition to 2,223 items from seven phones reviewed last year.

I find the last bullet most interesting. The known scope of the Ukraine warrants targeting Rudy go from August 1, 2018 through December 31, 2019; the review described in this update doesn’t even cover the full time frame of those warrants. The timeframe of this review is more consistent with a review covering the tail end of the Mueller investigation than the Ukraine investigation.

But they might prioritize such reviews if they were worried about tolling statutes of limitation.

In any case, by my read, all of Rudy’s texts and messages from that period — December 1, 2018 through May 31, 2019 — would have been reviewed for privilege.

Update: TF has convinced me the narrowed date for the most recent review might better reflect a narrowed period of the known Ukraine warrants — that is, just the six most interesting months. I think his argument may be more persuasive than mine in the italicized language, above.


Bennie Thompson to Ivanka: Come In from the Conspiracy

Even though you read this site, you may not recognize the names Brad Smith or Marshall Neefe. Even though I’ve focused some attention to his case, you may not remember the significance of Ronnie Sandlin. You might not even remember that the Oath Keeper conspiracy was named after retired Navy officer Thomas Caldwell before he was spun off into the sedition conspiracy named after Stewart Rhodes.

But those are all references of import to understand this footnote in the letter Bennie Thompson sent to Ivanka Trump, inviting her to testify voluntarily.

The Select Committee is aware of the motivation of many of the violent rioters from their posts on social media, from their contemporaneous statements on video, and from the hundreds of filings in federal court.11

11 For example, many defendants in pending criminal cases identified President Trump’s allegations about the “stolen election” as a motivation for their activities at the Capitol; a number also specifically cited President Trump’s tweets asking that supporters come to Washington, D.C. on January 6th. See, e.g., United States of America v. Ronald L. Sandlin https://www.justice.gov/opa/page/file/1362396/download: “I’m going to be there to show support for our president and to do my part to stop the steal and stand behind Trump when he decides to cross the rubicon.” United States of America v. Marshall Neefe and Charles Bradford Smith https://www.justice.gov/usao-dc/case-multi-defendant/file/1432686/download: “Trump is literally calling people to DC in a show of force. Militias will be there and if there’s enough people they may fucking storm the buildings and take out the trash right there.” United States of America v. Caldwell et al. https://www.justice.gov/usao-dc/case-multi-defendant/file/1369071/download: “Trump said It’s gonna be wild!!!!!!! It’s gonna be wild!!!!!!! He wants us to make it WILD that’s what he’s saying. He called us all to the Capitol and wants us to make it wild!! ! Sir Yes Sir!!! Gentlemen we are heading to DC pack your shit!!”

The Select Committee could have chosen any number of individual defendants to support the claim that Trump was the motivating force for the participants of the mob that stormed the Capitol on January 6.

It did not.

Instead, without saying that it had, it cited three conspiracy indictments: a conspiracy that involved totally random guys who met online coming armed to DC and assaulting officers to break open the East doors and break into the Senate chamber, a conspiracy where guys armed themselves to come to DC based on a motivation that, “Why shouldn’t we be the ones” to kick off war, and a conspiracy that has now officially been charged as sedition.

What the Select Committee just said to Ivanka, very subtly (and without the hotlinks to these court filings to make it easy) is that multiple organizers across multiple conspiracies — all involving arming themselves before traveling to DC — acted on Trump’s comments in December and January as instructions.

What the Select Committee has laid out in this footnote is that key members of conspiracies that led to violent assaults on January 6 entered into an agreement with Donald Trump to engage in violence.

Other coverage of this letter has focused on the many other scathing details included in it:

  • Proof that Trump knew he was making an illegal request of Mike Pence (and that Ivanka knew such pressure was wrong)
  • Proof that multiple people attempted to get Trump to call off the violence (and that staffers repeatedly asked Ivanka to intercede to get him to do so)
  • Proof that advisors including Kaleigh McEnany and Sean Hannity attempted to get Trump to disavow these efforts

In response to the letter, Ivanka issued a statement making it clear that on January 6 she disavowed the violence caused by her father.

Ivanka Trump just learned that the Jan. 6 Committee issued a public letter asking her to appear. As the Committee already knows, Ivanka did not speak at the January 6 rally. As she publicly stated that day at 3:15pm, “any security breach or disrespect to our law enforcement is unacceptable. The violence must stop immediately. Please be peaceful.”

But that doesn’t account for another detail of the letter that has gotten far less attention than the eye-popping new details about Trump’s actions: Chairman Thompson reminded Ivanka (in a paragraph that seemingly addresses another topic) not just of the requirements of the Presidential Records Act, but also that she got formal notice of those requirements in 2017.

The Select Committee would like to discuss this effort after January 6th to persuade President Trump not to associate himself with certain people, and to avoid further discussion regarding election fraud allegations. We also wish to share with you a memorandum from former White House Counsel Donald McGahn (attached), regarding the legal requirements on White House personnel to turn over to the National Archives any work-related messages from personal devices. We wish to be certain that former White House staff are fully aware of these obligations.

Ivanka, of course, is not just the former President’s daughter. She’s also someone legally obliged to share all the communications conducted while performing whatever role it is she played in the White House — up to and including begging her Daddy to call off a violent mob — with the National Archives.

Thompson would not have mentioned this if the committee had been able to obtain Ivanka’s side of many of these communications from the Archives (or at least seen them in documents Trump was attempting to claim privilege over). Thompson seems to know that Ivanka is not in compliance with the Presidential Records Act specifically as it pertains to her role on January 6.

Here’s the thing about conspiracies. Once you join them, you’re in them — you’re on the hook for what all other co-conspirators do, from acquiring weapons to bring to DC, to assaulting cops, to planning to overthrow the government — unless you make an affirmative effort to leave the conspiracy.

Ivanka might well point to that comment in her statement — The violence must stop immediately — as an effort to leave a conspiracy.

Except if she is covering up some of the things she knows by withholding records from the Archives, she’s going to have a hard time arguing that she didn’t remain in the conspiracy with all those people plotting violence by helping to cover it up.


“HOLD. THE. LINE!!!” DOJ’s Late Research into Brandon Straka’s Grift

It’s difficult to tell what really went down with the Brandon Straka plea.

That’s because — as laid out here — the government seems to have realized that Straka had been less than forthright in interviews, in which he was deemed cooperative last year, that got him a sweet plea deal. In their sentencing memo, the government seems to be at pains to argue that Straka’s cooperation was worth minimizing his overt incitement of the obstruction attempts.

Straka, meanwhile, is desperate to dismiss claims he “snitched” out others. So it’s unclear what to make of the claim — in a memo signed by Bilal Essayli, a California politician who only just filed his notice of appearance in the case — that the government was pressuring Straka to implicate Trump directly.

During the interviews the government was focused on establishing an organized conspiracy between defendant, President Donald J. Trump, and allies of the former president, to disrupt the Joint Session of Congress on January 6. Defendant answered all questions truthfully and denied the existence of any such plot. In August 2021, the FBI arrived at the same conclusion and found no evidence that violence was centrally coordinated by any individual or group.2 Despite these findings, the government persists with a false narrative that defendant’s actions were premeditated and orchestrated in concert with the greater mob that stormed the Capitol. The Court should reject this improper attempt to expand the scope of the appropriate sentencing factors, and consider only defendant’s relevant conduct with respect to the charged offense: misdemeanor disorderly conduct.

2 See Mark Hosenball, Exclusive: FBI finds scant evidence U.S. Capitol attack was coordinated – sources, Reuters, August 20, 2021, https://www.reuters.com/world/us/exclusive-fbi-finds-scant-evidence-us-capitol-attack-wascoordinated-sources-2021-08-20/

In an attempt to disclaim any organized conspiracy, Essayli cites the problematic Reuters article based on former officials who would have been in charge during the period when Straka’s initial interviews were deemed cooperative, but whose knowledge by August 2021 would have been out of date and whose claims would be utterly irrelevant to what DOJ understood by December, when Straka’s sentencing took a weird turn.

Even crazier, the Straka sentencing memo reveals that, on December 10 (so two days after Straka revealed new information that roiled the sentencing), his team shared a sentencing position with DOJ asking not just for no jail time, but to have the entire case dismissed.

Defendant feels compelled to respond on the record to the government’s sentencing memorandum, which was filed one week prior to the sentencing hearing. The government had the benefit of reading and considering defendant’s sentencing position, which was timely filed on December 10, 2021, when drafting its position. The government missed this deadline and informed defendant the following day that it was seeking to continue the sentencing hearing. The government sought a stipulation to continue, which defendant agreed to join, based on the government’s representation that it would consider a request from defendant to dismiss this case. The government informed defendant on January 13, 2022, that his request was denied and proceeded to file its sentencing position containing highly inflammatory characterizations of defendant. [my emphasis]

Since December, it seems Straka has given up that plan, because his attorneys now argue for “a modest non-custodial sentence.”

That said, much of the rest of the memo focuses on making a First Amendment argument claiming that Straka’s earlier posts (it is silent about his January 5 speech) don’t amount to incitement.

The first and second tweet sent in early December 2020 were a pair of strongly worded messages opposing the transition to President Biden without an audit of contested election results. Gov. Figure A and B. Defendant states, “If we don’t get a thorough audit we must not allow a transfer.” The references in the tweet to a “civil war” was not a call to violence, as the government suggests, it was a figure of speech referencing a political struggle. The government concedes that defendant’s “messages contain rhetorical flourishes that are common in political speech,” but then suggests, without evidence, that defendant’s statements could “have been interpreted by some readers as a call for more than just a figurative struggle.” ECF 36, p. 5. The government does not cite one example of defendant’s tweets influencing a single person to engage in criminal conduct.

Similarly, Gov. Figure C contains a tweet from December 19, 2020, with a call to “rise up” (figuratively) and be recognized by the government. The full statement reads, “Our government no longer listens & takes instructions from the People. They’ve decided to become dictators to the People. It’s time to rise up!” This is precisely the category of speech the First Amendment protects. It is not incitement, and barely registers above heated political rhetoric. See generally Cohen v. California, 403 U.S. 15, 24–26 (1971). It was also not imminent—being issued almost a month prior to January 6. See Brandenburg v. Ohio, 395 U.S. 444, 448 (1969) (First Amendment prohibits punishment of advocacy except when it incites imminent unlawful action).

The government’s sentencing memorandum is devoid of any mention of the First Amendment, let alone any analysis of whether defendant’s statements meet the Brandenburg standard required for punishing speech. The government may only punish protest-related speech that includes a direct “call to violence” or advocacy that is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” See Brandenburg, 395 U.S. at 447; Noto v. U.S., 367 U.S. 290, 297–300 (1961). At the same time, the Supreme Court has consistently protected the statement of an idea that “may prompt its hearers to take unlawful action. . . .” Noto, 367 U.S. at 297 (quoting Dennis v. U.S., 341 U.S. 494, 545 (1951) (Frankfurter, J., concurring)). Indeed, even a protestor screaming, “We’ll take the f***ing street again” amidst an agitated crowd resisting police authority could not be punished for his speech. Hess v. Indiana, 414 U.S. 105, 107 (1973). The government fails to distinguish this important constitutional divide and, by so doing, seeks to penalize protected advocacy.

None of defendant’s statements meet the test for a “call to violence” as the government suggests. They lack any specific call to violence (hypothetically, “People, find a police officer and bash his head in!” or “Attack Senator John Doe now!”). They are not particular in that they do not ask protestors to take unambiguous actions or engage in detailed criminal acts. They are not imminent—the quoted material occurred a month before the January 6 event. And whatever the government believes defendant communicated to his supporters remains an inkblot in a constitutional Rorschach test. The speech that the government finds objectionable remains protected advocacy, and should not be considered for purposes of sentencing.

There are four attorneys who have filed notices of appearance for Straka. Not a single one has dealt with a prior January 6 defendant. So they may genuinely not know that DOJ has routinely turned to a defendant’s earlier speech to get not to incitement (militia defendants are an exception), but to motive.

And many of the other explanations Straka offers for his inflammatory language on January 6 don’t make sense (and has already been admitted at sentencing for dozens of other defendants). Straka’s team suggests that his incitement — as he was watching and cheering rioters strip a cop of a riot shield — couldn’t have encouraged the violence he was watching because his “social media posts were similarly written before defendant saw television footage of the west side of the Capitol,” as if there weren’t tons of things to alert him to the danger (even assuming he didn’t know of the collaboration between his associates and the organized militias) without seeing the West side.

Straka’s team seems to have gone from thinking they could get this entire case dismissed to being really worried about incitement that, through their good lawyering and possibly a lack of candor, hasn’t been charged against Straka.

Which brings me to a final detail of this exchange made visible by the timeline laid out in Straka’s filing.

As laid out below, after Straka’s presentence report came in, DOJ swapped prosecutors, April Russo for Brittany Reed (who wrote the sentencing memo). That presentence report, which is one of two things that changed DOJ’s response to sentencing, is referred to at least nine times in the government sentencing memo, though not at all in Straka’s.

The presentence report, for example, is what the government cites for Straka’s self-serving concern about how the prosecution affected his grifting.

During a presentence interview with U.S. Probation, the defendant expressed remorse for his actions. During his interview, the defendant stated that “if he could go back in time, he would never have gone to Washington D.C.” Straka described his conduct on January 6 as “one of the stupidest and tragic decisions of his life.” Straka lamented about how this incident has impacted his life and his business. He also informed U.S. Probation that he “feels the consequences for his actions have been quite extreme and disproportionate given his involvement in the offense is a misdemeanor.”

[snip]

Yet, it is worth pointing out that Straka believes that “the consequences for his actions this far have been quite extreme and disproportionate given his involvement.” Straka also believes that he is misunderstood. He has also expressed concern about how his business has been affected. ECF 28 ¶¶ 23-25. These statements indicate that Straka does not understand the gravamen of his conduct and that of the rioters on January 6.

The presentence report is also, alarmingly, the only place DOJ cites to explain Straka’s unique grift or that he flew to DC for the insurrection directly from doing similar incitement in Georgia.

It was in this context that Straka traveled to Washington D.C. on January 4, 2021, from where he had been working on the special election in Atlanta, Georgia to attend several “Stop the Steal” events where he would be a featured speaker. See ECF 28 at ¶ 17.

His role in the TCF mob in Michigan is not mentioned at all.

After that presentence report, the swapping of prosecutors, and the new information Straka provided on December 8, Straka’s team told DOJ they were going to ask to have the prosecution dismissed. That’s when the government told Straka they wanted a delay. Straka’s description of the timing of this is not entirely consistent with what shows in the docket (for example Judge Friedrich, with no public explanation, extended the deadline for the sentencing memo to December 15 on December 8, the day Straka provided new information), but there also seem to be several sealed entries. And while Straka claims DOJ told them they wanted a delay on December 11, the motion to continue describing the new information on December 8 and the presentence report is formally filed on December 17.

On December 8, 2021, the defendant provided counsel for the government with information that may impact the government’s sentencing recommendation. Additionally, the government is requesting additional time to investigate information provided in the Final PreSentence Report. Because the government’s sentencing recommendation may be impacted based on the newly discovered information, the government and defendant request a 30-day continuance of this case so that the information can be properly evaluated.

That makes what DOJ spent December 16 doing all the more interesting.

DOJ describes accessing the following materials on December 16, the day before they asked for a continuance:

The government cites the latter article — and not communications obtained directly by the FBI — to explain how Straka learned that his speech would be “delayed.”

At 2:33 pm on January 6, 2021, Michael Coudrey, the national coordinator for Stop the Steal, sent a message to a group chat telling those in the chat that the event that Straka was scheduled to speak at would be delayed because “They stormed the capital[sic].” Joshua Kaplan and Joaquin Sapien, New Details Suggest Sernior Trump Aides Knew Jan. 6 Rally Could Get Chaotic, ProPublica (June 25, 2021) available at https://www.propublica.org/article/new-details-suggest-senior-trump-aides-knew-jan-6-rally-could-get-chaotic (last visited December 16, 2021). Straka responded, “I just got gassed! Never felt so fucking alive in my life!!!” Id.

The government didn’t cite Straka’s November text messages (cited directly in the article) expressing disgust with close Ali Alexander ally Nick Fuentes.

Nor do they describe that Ali Alexander was on the group chat via which Straka learned his event would be delayed, or that shortly after Straka reveled in getting tear gassed, Alexander instructed everyone on the list to “get out of there” because “the FBI is coming hunting.”

“They stormed the capital,” wrote Stop the Steal national coordinator Michael Coudrey in a text message at 2:33 p.m. “Our event is on delay.”

“I’m at the Capitol and just joined the breach!!!” texted Straka, who months earlier had raised concerns about allying with white nationalists. “I just got gassed! Never felt so fucking alive in my life!!!”

Alexander and Coudrey advised the group to leave.

“Everyone get out of there,” Alexander wrote. “The FBI is coming hunting.”

Both the fact that Straka remained on organizing lists with Alexander months after he expressed distaste for Fuentes’ homophobia and that Alexander warned that the FBI were on their way change the import of everything else Straka did. Of particular note, it would dramatically change the connotation of Straka calling, from the safety of some distance from the crime scene, on others to “HOLD. THE. LINE!!!!”

And if DOJ really didn’t understand Straka’s grift until this point, that would suggest they made a plea deal without understanding that Straka was closely tied to those it is now investigating for coordinating with the militias who attacked the Capitol.

Brandon Straka claims he was asked, but denied, that there was, “an organized conspiracy between defendant, President Donald J. Trump, and allies of the former president, to disrupt the Joint Session of Congress on January 6.” But it appears that one thing leading to the month-long delay in his sentencing was newfound understanding both of Straka’s grift, but also of his close ties to those who coordinated with organized militias to end up precisely where Straka did: inciting violence from the top of the East steps of the Capitol.

Given that, his worries about whether his language counts as incitement seem misplaced. While he is legally in the clear for anything pertaining to January 6 (unless he lied to FBI), he should be more worried about inclusion in charges tied to the conspiracy he claims he denied.

Update: This language, from the Jan 6 Committee subpoena letter to Nick Fuentes, is of interest for the way it overlaps with Straka’s trajectory.

On November 14, 2020, you rallied with America First/Groyper followers at the Million MAGA March in Washington, D.C., urging your followers to “storm every state capitol until January 20, 2021, until President Trump is inaugurated for four more years.”5 You were also a prominent figure at “Stop the Steal” rallies in Atlanta, Georgia, on and around November 19, 2020,6 alongside featured speakers such as Alex Jones and Ali Alexander inside and outside the State Capitol, 7 where you discussed potential actions including showing up outside the homes of politicians. 8 On December 12, 2020, you spoke to a crowd of supporters at the “Stop the Steal” events in Washington, D.C., calling for the destruction of the Republican Party for failing to overturn the election.9

Timeline

January 11, 2021: Tip on Straka’s post to Twitter

January 13, 2021: Interview with Straka relative

By January 13, 2021: Straka removes January 5 video from Twitter; last view date for December 19, 2020 video cited in sentencing memo but not arrest affidavit

January 20, 2021: Straka charged by complaint

January 25, 2021: Straka arrest

February 17, 2021: First FBI interview

February 18, 2021: First continuance

March 25, 2021: Second FBI interview

June 3, 2021: Second continuance

July 2, 2021: Protective order

August 25, 2021: Third continuance

August 31, 2021: Date of plea offer

September 14, 2021: Deadline to accept plea

September 15, 2021: Straka charged by information

September 30, 2021: Stuart Dornan files notice of appearance for Straka

October 5, 2021: Updated information

October 6, 2021: Change of plea hearing (plea agreement; statement of offense); sentencing scheduled for December 17, with initial memo due December 10 and response due by December 15

Between October 7 and November 19, 2021: Pretrial services interview (sealed docket #28)

November 19, 2021: Brittany Reed substitutes for April Russo

December 8, 2021: Sentencing reset for December 22; sentencing memo due by December 15; Straka “provide[s] counsel for the government with information that may impact the government’s sentencing recommendation”

December 10, 2021: Straka shares sentencing position (possibly filed under seal)

December 11, 2021: Government tells defendants it seeks to continue, tells Straka it will consider request to dismiss case

December 16, 2021: Last view date for 2018 Straka video, Walkaway Foundation website, WalkAway Campaign PAC website, WalkAway Campaign YouTube Channel; ProPublica article on Michael Courdrey message (and attempts to distance Alex Jones and Ali Alexander)

December 17, 2021: Motion to continue (presented as joint) 30 days

By December 23, 2021: Sealed motion attempting to seal publicly filed motion to continue, denied by Judge Friedrich

January 5, 2022: Third FBI interview, this time including prosecutors (plural)

January 13, 2022: Government sentencing memo (sealed addendum at docket #37); government denies Straka request to dismiss case

January 14, 2022: Bilal Essayli files notice of appearance for Straka


Guest Post: The Tie that Binds the Conspiracies

[This is a guest post by long-time community member WilliamOckham. /~Rayne]

This post began as an attempt to figure out who developed the “fake elector vote count in a box” package Republicans in seven states used to create “alternate” elector vote certifications.

It ended up helping me understand the “bigger conspiracy” to which Michigan Attorney General Dana Nessel referred. What follows is not an indictment and nothing in it is particularly new. Most of what I describe can be found in various comments here at emptywheel.

I’ve laid out how I think the “alternate” elector scheme played a central role in the coup. I think I understand why it was important for Nessel to refer this to the Department of Justice. Because some of these activities violated multiple states’ laws, it’s easier to show the entire scheme was corrupt.

The Contingency Plan

The key to understanding the conspiracy to overthrow the election of the President of the United States is in Barton Gellman’s article, The Election That Could Break America published September 23, 2020 in The Atlantic:

“… According to sources in the Republican Party at the state and national levels, the Trump campaign is discussing contingency plans to bypass election results and appoint loyal electors in battleground states where Republicans hold the legislative majority. With a justification based on claims of rampant fraud, Trump would ask state legislators to set aside the popular vote and exercise their power to choose a slate of electors directly. …”

That’s it. That’s the core of the coup plan. “Bypass election results” means preventing the peaceful transfer of power. Every part of the effort, including the violence on January 6, depended on using Republican state legislatures to provide a façade of legitimacy to a brazen attempt to overthrow the government.

The “alternate” electors weren’t just some goofy outpouring of grassroots Trump support. They were absolutely essential to the plot. To understand the coup, we need to understand how the “alternate” electors scheme was carried out.

The Plan Realized

After a look at Michigan’s “alternate” electors, I noticed the formatting and textual similarities between the various states’ “Electoral Vote Certifications”; they show this was a nationally-coordinated effort.

One of the fake electoral vote count certifications (Nevada’s) was broadcast live. Go to the 7:08 mark and listen as they call the roll. You can verify that the names match the ones on the Nevada fake certification paperwork. At 12:53, they read their certification which matches word for word the one submitted to the National Archives. And at 14:15, two “electors” (Rice and Hindle) are shown using different pens. Sure enough, this difference shows up in the documents.

I think there’s a reason this particular event was the one live streamed. All of Nevada’s fake electors were selected by the Nevada Republican Party to serve in the event of a Trump win. There were no messy substitutions. Well, and maybe because they had a dude who could do a fairly decent acapella rendition of “The Star Spangled Banner,” which to be fair, I would show that off too.

As folks here have already noted, key figures in Trump World were well aware of this effort in real-time: Stephen Miller (imagine me turning and spitting on the ground every time I type that name) talked about it on December 14; Kayleigh McEnany talked it up on December 17.

However, I believe the foot soldiers for this aspect of the coup were from The Amistad Project of the Thomas More Society (not to be confused with Project Amistad or Amistad Law Project which are totally different, legitimate organizations).

The Amistad Project has been connected to a variety of shady pro-Trump “election integrity” groups, like Got Freedom? or Election Integrity Project, or American Voter’s Alliance (to which Got Freedom? now redirects its internet traffic).

These organizations are all basically the same thing: a bunch of right-wing lawyers and political operatives committed to a lawfare strategy against American democracy.

The headliner for The Amistad Project is Phill Kline, an attorney with an indefinitely suspended license due to illegally accessing and disclosing private medical records for political purposes. The organization hosted the 2-hour-long January 2, 2021 Zoom conference with state legislators which Trump joined, right after he got off the phone with Georgia’s secretary of state Brad Raffensberger.

Trump called into the meeting and told the legislators, “You are the real power…The most important people are you. You’re more important than the courts. You’re more important than anything because the courts keep referring to you, and you’re the ones that are going to make the decision,” in a 14-minute call into the session.

Several #StopTheSteal movement leaders were on the call. Other attendees included Trump attorney Rudy Giuliani, who got Trump on the phone; law professor John Eastman; Peter Navarro, Trump’s trade czar who recently authored a book on the election; and John R. Lott Jr., a Justice Department official who also separately authored a report suggesting some 300,000 “excess” ballots were counted, giving Biden his win.

During this call, Trump repeated the contingency plan. The “alternate electors” scheme is the tie that binds the conspiracies together. As it got closer and closer to January 6, all of the different threads of the insurrection tapestry began to converge on the need to obstruct the Congressional certification of Biden’s win.

In fact, Mark Meadows missed the January 2 Zoom meeting with state legislators because he was coordinating the Congressional end of the insurrection with Mo Brooks, Jim Jordan, and about 50 Republican U.S. House members. This eventually led to the violence at the Capitol on January 6, 2021.

Let’s return to the question which started this essay. Who is responsible for the “fake elector vote count in a box” package? Two lawyers from the Amistad Project seem to be very closely tied operationally to the “alternate electors” scheme: Ian Northon and Erick Kaardal.

Ian Northon implicated himself in the Michigan stunt confrontation on December 14, 2020 at the state capitol building with Michigan State Police. At the 5:20 mark in this video, he says (and spells) his name and announces that he’s with The Amistad Project of the Thomas More Society. That’s pretty clear cut.

Kaardal’s complicity is a little murkier. Kaardal was previously most known for filing the dumbest pro-Trump election lawsuit. No, really – he outdid the Kraken lawyers, at least according to one Twitter lawyer.

Kaardal’s behavior in this case was so bad U.S. District Judge for D.C. District James Boasberg actually referred him to the U.S. District Court’s Committee on Grievances. It’s that very lawsuit, filed on December 22, 2020 which implicates Kaardal in the “alternate electors” scheme. You can find some of the documentation for this case on courtlistener.com.

However, the interesting part is Appendix 12 and, if like me, you don’t have or want a PACER account, you can find it via the Wayback Machine looking through the now-missing Got Freedom? website. Buried almost 1500 pages into Kaardal’s “evidence” are photocopies of two of the fake election certifications (Michigan and Wisconsin).

Recall these false certifications were signed on December 14, 2020; eight days later, Kaardal has copies of them. But, wait, that’s not all. The “alternate” electors have to send off multiple originals to the National Archives, Vice President Mike Pence, so on. In the video of the Nevada signing you will see the “alternate electors” signing six copies of all the documents.

It’s very interesting that Kaardal’s photocopies aren’t copies of the originals sent to the National Archives. He’s got photocopies of different originals. I compared the signatures on the documents from the National Archives with the ones that Kaardal had, on or before December 22, 2020, and realized they’re signed by the same people, but there are minor variations in the signatures, as you would expect when people sign multiple copies at the same time. He had photocopies of originals from two different states – states in which Kaardal doesn’t live.

Would you like to guess what Kaardal’s favorite font is? Baskerville Old Face. Check out the documents he submitted in this dumbest pro-Trump election lawsuit. The “fake elector vote count in a box” package uses the same font and the same margins that Kaardal’s other documents use. He had access to the completed versions well before they were in the public domain.

One More Thing

(Imagine that in Peter Falk’s Columbo voice.) In the course of tracking all this down, I actually read the dumbest pro-Trump lawsuit which Kaardal wrote. Some of it – the not-quite-completely-unhinged parts – seemed familiar. I knew I had read some of these paragraphs before.

I went searching through my OCR’d versions of various documents I had come across – and I found it. You might remember the DOJ coughed up a bunch of documents to the House Committee on Oversight and Reform. One of those documents was a draft lawsuit Trump’s assistant sent to Jeffrey Rosen and Richard Donoghue which Trump wanted the DOJ to file to overturn the election.

Lo and behold, significant chunks of that lawsuit were copied from Kaardal’s lawsuit. There’s no ethical issue with the copying. It’s just one more indication how closely the The Amistad Project folks were working with key Trump conspirators.


Pandora’s Presidential Archives, Couy Griffin Edition

The attorney for New Mexico politician and Cowboys for Trump founder, Couy Griffin, is a guy named Nick Smith.

He is laudably aggressive. And in a case in which Griffin was charged just with trespassing (18 USC 1752), Smith has fought the prosecution every step of the way, even though if Griffin were to get jail time, he already served time after his arrest and so likely would only get time served.

In July, DC’s Trumpiest judge, Trevor McFadden, soundly denied Griffin’s first attempt to get the 1752 charges thrown out, arguing that Smith’s legalistic interpretation of the required role of Secret Service didn’t accord with the statutory history.

While Griffin clings to this statutory history, it ends up being more cement shoes than life preserver. By 2006 Congress rewrote the statute, in the process eliminating reference to the Treasury Department and to any “regulations” from any executive branch agency. 5 18 U.S.C. § 1752 (2006). More, the new statute criminalized merely entering or remaining in a restricted area; the old statute required further action, such as impeding government business, obstructing ingress or egress, or physical violence. Compare 18 U.S.C. § 1752(a)(1) (2006) with 18 U.S.C. § 1752(a) (1970). But Congress did not stop there. In 2012 it reconfigured the statute, adding the term “restricted buildings or grounds” and then defining it under subsection (c), as it appears today. 18 U.S.C. § 1752(a) (2012). Congress did not take that opportunity to clarify who can or must do the restricting, leaving it open-ended. But Congress did lower the mens rea requirement, striking the requirement that a defendant act “willfully.”

So what should the Court gather from this foray into § 1752’s statutory history? “Not much” would be a fair answer. Perhaps better would be to recognize the direction of Congress’s legislative march, where at every turn it has broadened the scope the statute and the potential for liability. Even if Griffin were correct that earlier versions required Secret Service authorizations of restrictions, the Court cannot reconstitute provisions that Congress has jettisoned. And the Court cannot agree with Griffin that woven through these increasingly broad versions of the statute was a latent limitation that only the Secret Service could effectively post, cordon off, or restrict an area.

But in the wake of the description in Jon Karl’s book of where Mike Pence hid from the rioters, Smith tried again, arguing that the space where Mike Pence was evacuated was a garage for another building of the Capitol. Smith argued that meant Pence was not present (and therefore the necessary trigger for 1752 was absent). Smith wants the photos that the Secret Service assuredly wants to keep secret (because it reveals the location of a VIP security location), though the language he cites appears to prove him wrong.

The Senate garage, and underground tunnels leading to it, do not fall under the statutory definitions of the Capitol Building and Capitol Grounds. As shown above, all the features making up the “United States Capitol Grounds” are, appropriately enough, above ground. § 5102(a). As to whether the tunnels and Senate underground garage are part of the “Capitol Building” itself, Title 40 answers in the negative. “Capitol Buildings” are defined as follows:

[T]he term “Capitol Buildings” means the United States Capitol, the Senate and House Office Buildings and garages, the Capitol Power Plant, all buildings on the real property described under section 5102(c) (including the Administrative Building of the United States Botanic Garden) all buildings on the real property described under section 5102(d), all subways and enclosed passages connecting two or more of those structures, and the real property underlying and enclosed by any of those structures. 40 U.S.C. § 5101 (emboldening added).

As seen above, the definition of “Capitol Buildings,” plural, distinguishes between the tunnels and underground garages, on the one hand, and the “United States Capitol” building itself, on the other. The “subways,” underground “enclosed passages,” and “garages” are not part of the “United States Capitol” building (the “restricted” building) because they are set off from one another by commas in a list.

Photographic evidence showing that the Secret Service protectee was not present in the § 1752 “building” or “grounds” at the same time as Griffin is Brady material. It should be produced by the government. If it is not, the Court should dismiss the charges pursuant to Local Criminal Rule 5.1(g)(4), as Griffin would then be denied access to evidence going to the heart of his case.

The government response didn’t address the question posed by Smith’s filing, “what is a garage.”

Instead, in a footnote, DOJ says that the photos would not be exculpatory in any case.

The government rejects the Defendant’s contention that the photographs that are the subject of the Defendant’s motion have some exculpatory value. 18 U.S.C. 1752(a)(1) and (2) criminalizes a person entering a restricted area “of a building or grounds where the President or other person protected by the Secret Service is or will be temporarily visiting.” 18 U.S.C. 1752(c)(1)(B). 18 U.S.C. 1752 does not require the Secret Service protectee to be present on the grounds or in the building where the restricted area has been established at the time of an illegal entry into the restricted area. Therefore, the Vice President’s presence in an underground parking garage or tunnel does not exculpate the Defendant with respect to the charged conduct.

But the bulk of the response says that the photos are not Brady because the government doesn’t have possession of the photos.

Brady material is material in the government’s possession that has some exculpatory or impeachment value. United States v. Nelson, 979 F.Supp.2d 123 (D.C. Cir. 2013). The photographs requested by the Defendant from the official White House photographer are not in the government’s possession, therefore, they are not considered Brady and the Defendant cannot move to compel their production.1 United States v. Flynn, 411 F.Supp.3d 15 (D.C. Cir. 2019) (“Brady does not extend to information that is not within government’s possession…”). Similarly, the Defendant’s request for these photographs under Federal Rule of Criminal Procedure 16(a)(1)(E) should be denied, as Rule 16 only requires the government to disclose photographs within its possession. Fed. R. Crim. P. 16(a)(1)(E).

It’s not clear exactly what DOJ means by this. But according to President Obama’s White House photographer, Pete Souza, the photos should be in the Archives.

The Presidential Records Act requires that all records including “photographs” be turned over to the National Archives at the end of each administration. This includes Vice Presidential records. Congress should determine why the Archives doesn’t have them.

My guess is that’s precisely where they are, but they don’t count as being in the Executive Branch’s possession because of the way the Presidential Records Act deals with Presidential files. As the National Archives explained in Trump’s lawsuit, Trump’s records count as Presidential records for a period.

In 1978, guided by the Supreme Court’s reasoning in Nixon v. GSA, 1 Congress enacted the PRA, which changed the legal ownership of the official records of the President from private to public, and established a new statutory structure under which Presidents, and subsequently NARA, must manage the records of their Administrations. Under the PRA, records reflecting “the activities, deliberations, decisions, and policies” of the Presidency are “maintained as Presidential records.” 44 U.S.C. § 2203(a). When a President leaves office, the Archivist “assume[s] responsibility for the custody, control, and preservation of, and access to” the Presidential records of the departing administration. Id. § 2203(g)(1). The Archivist generally must make records covered by the PRA available to the public under the Freedom of Information Act (FOIA) starting five years after the President leaves office. Id. § 2204(b)(2), (c)(1); see also 36 C.F.R. § 1270.38. However, the outgoing President may specify that access to records in six defined categories be restricted for up to twelve years after leaving office. 44 U.S.C. § 2204(a); see also 36 C.F.R. § 1270.40(a).

We know Trump is asserting that right with respect to January 6, because as we speak, Trump is asking the Supreme Court to uphold his claim that no one else can access his records without his permission.

Of course, Judge McFadden could order DOJ that it needs to search the Archives for matters pertinent to the investigation — this investigation, and January 6 generally.

I’m sure DOJ would love that! In the case of Griffin, that would give DOJ access to the meeting that Griffin had directly with Trump, and any other contacts that are stored as Presidential Records.

But in the case of Nick Smith’s other clients — most notably Ethan Nordean — it would make records of Trump’s contacts with Proud Boys available, including records on what Enrique Tarrio was doing at the White House in December 2020.

So by all means, let’s have the Trumpiest Judge order DOJ to search through Trump’s records to find discovery pertinent to the January 6 attack, including the pictures of Mike Pence hiding from Trump’s mobsters. But along with that, let’s have the records of Trump’s contacts with them in advance of the insurrection.

Update: Griffin’s lawyers have responded. After having submitted proof that where Pence was was in the Capitol, they now play word games to suggest that “will be” is the same as “is” (and yes, the government has submitted evidence Griffin knew this).

The government is mistaken in several respects. “[R]estricted buildings or grounds” means “any posted, cordoned off, or otherwise restricted area . . . of a building or grounds where the President or other person protected by the Secret Service is or will be temporarily visiting.” § 1752(c)(1)(B). Thus, Griffin did not “knowingly enter[] or remain[] in any restricted building or grounds,” § 1752(a)(1), if the vice president was not also present and “temporarily visiting.”

Still, Griffin claims the government has not addressed their Rule 16 claim, and so DOJ must go to NARA and get the photos for him.

The government does not dispute that an official White House photographer took the photographs of the vice president as he passed time outside the “restricted area” on January 6. ECF No. 70. Accordingly, under the Presidential Records Act, the images are records documenting the “activities” of the vice president concerning his “constitutional, statutory, or other official or ceremonial duties. . .” and are thus Presidential records. 44 U.S.C. § 2203(a). When a president leaves office, the National Archives and Records Administration (NARA) assumes “custody [and] control” over Presidential records. § 2203(g)(1). Records of the vice president are transferred to NARA in the same manner. § 2207. NARA is an agency of the Executive branch. § 2102.

Therefore, the government has an obligation to obtain the photographs from NARA and produce them to Griffin, so long as they are merely “material to preparing the defense,” much less Brady material.1 Fed. R. Crim. P. 16(a)(1)(E)(i). It is uncontroversial that satisfying this standard is “not a heavy burden.” United States v. Lloyd, 992 F.2d 348, 351 (D.C. Cir. 1993). Griffin must merely make a showing that the material will “play an important role in uncovering admissible evidence, aiding witness preparation, corroborating testimony, or assisting impeachment or rebuttal.” Id. Of course, if the requested material is “inconsistent with or tends to negate the defendant’s guilt as to any element . . . of the offense(s) with which the defendant is charged” it is also Brady material. LCrR 5.1(b)(1). “[B]urdensomeness and logistical difficulty . . . cannot drive the decision whether items are ‘material’ to preparation of the defense. Nor can concerns about confidentiality and privacy rights of others trump the right of one charged with a crime to present a fair defense.” United States v. O’Keefe, 2007 U.S. Dist. LEXIS 31053, at *4 (D.D.C. Apr. 27, 2007).

As I said, I look forward to, on Trevor McFadden’s order, DOJ going to NARA and getting all the records pertinent to Griffin among Trump’s records. The government can supersede Griffin while he continues to dawdle, and Trump’s own records of Griffin’s relationship might change DOJ’s understanding of the case.

The same is all the more true for the militia defendants that the Smiths represent.

They’re doing this just as SCOTUS’ inaction is creating the opportunity for NARA to provide the first 4 pages of which Trump has claimed privilege over to the Select Committee.


Reporting on the January 6 Investigation: emptywheel Brings Receipts

I spend a lot of time complaining about what “TV lawyers” claim on TV and Twitter. In response, people often say that Harvard professors or former AUSAs of course must know better than me what the investigation looks like.

So I thought I’d bring receipts. I just got my quarterly bill for PACER, the shitty system via which one obtains court records for $.10 a page. Here’s what it looks like:

The reason I’m posting it is not to ask for donations — though as a reminder, this is my day job and we rely entirely on reader support to pay the bills; if you’d like to chip in I would love the support.

It’s to provide a sense of how big the January 6 investigation is and how much journalistic labor it takes to understand it. While January 6 is not the only case I’m following closely, it obviously dwarfs everything else.

According to PACER I paid to download 8,906 pages in the last three months; I downloaded a ton more (for free) from RECAP. While there’s a lot of boilerplate in the January 6 filings, I read most of them fairly closely, some of them very very closely. I did all that while also following a goodly number of the court hearings in the investigation (because of COVID protocols, I can do that from Ireland).

There are only a handful of journalists who are covering the investigation with this kind of attention — though I imagine Zoe Tillman, Seamus Hughes, Ryan Reilly, Politico collectively, and the rest of that handful have had huge PACER bills for the last year (Hughes always has huge PACER bills, because he spends hours extracting amazing stories from it, on all topics).

When TV lawyers tell you what there is or is not evidence in the January 6 investigation, you might ask them how many thousands of pages of court filings they read before they came to that conclusion. Because chances are very good they’ve read almost none of it.


Key January 6 posts

The Structure of the January 6 Assault: “I will settle with seeing [normies] smash some pigs to dust”

DOJ Is Treating January 6 as an Act of Terrorism, But Not All January 6 Defendants Are Terrorists

The Six Trump Associates Whom DOJ Is Investigating

January 6 Is Unknowable

“I’m Just There to Open the Envelopes:” The Select Committee and DOJ Investigations Converge at Mike Pence

DOJ’s Approximate January 6 Conspiracies

Easy Cases: Why Austin Sarat’s Argument That Trump Should Not Be Prosecuted Is Wrong

How a Trump Prosecution for January 6 Would Work


The Disappearing Willard Hotel and the Accused Seditionists’ Other Interlocutors

Just as sedition bears down on Roger Stone, the government has put a curtain over what they know about his role in it. The government has moved on from Stone, it seems, to other interesting Oath Keeper interlocutors.

Way back in May, I noted how judicious DOJ was being with statements from Stewart Rhodes — referred to officially as Person One back in his halcyon pre-sedition charge days — in the charging documents for Oath Keepers. Within a few days that month, DOJ added to its insurrection narrative a December 14, 2020 Rhodes post calling for Trump to invoke the Insurrection Act via James Breheny’s charging documents. The iteration of the Oath Keeper conspiracy released at the same time (the fourth) introduced Rhodes’ November 9 GoToMeeting discussion of the Insurrection Act that continues to appear in the indictments.

For eight months, in other words, DOJ has been engaged in a slow-reveal of its case against Rhodes.

Now, in the sedition indictment bearing Rhodes’ name, we get a whole lot more of what Rhodes was saying:

  • Calls for civil war as soon as a it became clear Biden should win
  • Rhodes’ adoption of a Serbian (!!!) model for his civil war
  • An oblique comment — dated to “around this time” of the Inauguration — about Rhodes messaging others to organize local militias to oppose Biden’s Administration

Most of the new comments aren’t as scintillating as the catalog describing the personal arsenal Rhodes was purchasing, though, and a few of the new Rhodes comments included were public before.

There are three comments about Rhodes’ communications, though, that I find intriguing because they seem to hint at other interlocutors with the accused seditionists that we may not know about yet.

The first doesn’t even involve Rhodes directly. Rather, it relays Roberto Minuta describing to someone else that 1) Minuta had spoken directly with Rhodes the night of December 18 and 2) Minuta was sharing with someone apparently outside the Oath Keepers how Rhodes felt.

28. Also on December 19, 2020, MINUTA messaged another individual, “Oath Keepers president is pretty disheartened. He feels like it’s go time, the time for peaceful protest is over in his eyes. I was talking to him last night.”

This wasn’t in the prior indictment and I don’t recall it appearing in any other filings in the case (Minuta was not detained, so there’s less about him in the public record). Unless this was originally on the Facebook account Minuta allegedly deleted, there doesn’t seem to be any reason DOJ wouldn’t have obtained this message when they exploited Minuta’s phone. If they’ve had it for months, then the simplest explanation for its inclusion is that this indictment is all about Rhodes, and the comment captures Rhodes’ commitment to violence. In addition, this comment exhibits a closeness between Minuta and Rhodes (which we’ve seen in earlier charging documents) that may be useful from an evidentiary standpoint.

But I suspect it serves an additional purpose. Minuta wrote it not long after the December MAGA March in DC. While there, he had been hanging out with Proud Boys, including Dominic Pezzola (who like Minuta is from upstate New York). It comes after Mike Flynn’s call for insurrection. After Trump tweeted out a promise for Wild Protests on December 19, a ton of aspiring insurrectionists, both organized and not, started making plans to come to DC. In short, this was a key time in the lead-up to the operation, and Minuta was surprisingly well-connected (for a tattoo artist!!!) within the movement. So I suspect his interlocutor here is of some interest (and it’s even possible the government obtained the text from that interlocutor, not Minuta).

An exchange that Kelly Meggs had with Rhodes on Christmas 2020 is similar.

34. On December 25, 2020, MEGGS messaged the OKFL Hangout Chat, in reference to the Joint Session, “We need to make those senators very uncomfortable with all of us being a few hundred feet away.” RHODES then wrote, “I think Congress will screw him [President Trump] over. The only chance we/he has is if we scare the shit out of them and convince them it will be torches and pitchforks time is they don’t do the right thing. But I don’t think they will listen.”

As we recently saw in Proud Boy Matthew Greene’s statement of offense, using proximity to pressure members of Congress (and Pence), became well formulated enough that even a low-level Proud Boy would understand it by the day of the insurrection. Here, both Meggs (who is the Florida-based Oath Keeper who boasted of forging an alliance with the Proud Boys) and Rhodes enunciate this goal, but do so twelve days before the actual attack. As with the Minuta comment, my guess is that the his exchange reflects communication with (at a minimum) the Proud Boys about this shared goal of — in Rhodes’ formulation — terrorizing Congress. It certainly makes it clear that the intent of mobbing the Capitol was formulated well in advance of the event.

There’s one more example. For some reason, DOJ provides the exact time (without time zone) that Rhodes wrote, “There is no standard political or legal way out of this” on December 31, 2020.

40. RHODES and his co-conspirators used the Leadership Intel Chat and other Signal group chats to plan for January 6, 2021. On December 31, 2020, at approximately 10:08 p.m., RHODES wrote to the Leadership Intel Chat, “There is no standard political or legal way out of this.”

For the purposes of the indictment, this shows mens rea that the Yale Law grad leading this insurrection recognized what they were going to do next was not legal. But it also seems to reflect a response (thus the timing) to something — one I haven’t been able to guess yet. The comment comes before Texas Congressman Louie Gohmert’s lawsuit against Mike Pence, the last of a long series of ridiculous “legal” efforts, failed spectacularly. But it comes at around the same time that even Sean Hannity was beginning to give up.

For example, on December 31, 2020, you texted Mr. Meadows the following:

“We can’t lose the entire WH counsels office. I do NOT see January 6 happening the way he is being told. After the 6 th. [sic] He should announce will lead the nationwide effort to reform voting integrity. Go to Fl and watch Joe mess up daily. Stay engaged. When he speaks people will listen.”

I’m not saying that Rhodes was in contact with Hannity: But something seems to have happened just before 10:08 PM (in whatever time zone) that elicited this response which is not dissimilar from where Hannity’s brain was at the time. And if it was non-public (as Hannity’s panic was), then it suggests Rhodes may have been responding to a well-connected interlocutor.

So it’s not so much that the sedition indictment quotes Rhodes as saying really interesting things. Rather, it seems to suggest he and others were saying things to some interesting interlocutors.

Even as the government is hinting at other interesting interlocutors of the accused seditionists, as I noted above, DOJ has entirely hidden the prior back-and-forth between the Oath Keepers and the Willard Hotel. This back-and-forth involving people who were guarding Roger Stone at the Willard that morning first started to show in the Third Superseding Indictment. Once Jonathan Walden — the guy now charged by himself — got added, the indictments included this exchange:

At 9:36 a.m., WALDEN texted JAMES, “Willard hotel?” At 9:51 a.m., WALDEN placed a phone call to JAMES, which is recorded as missed. At 9:52 a.m., WALDEN texted JAMES, “I’m here, awaiting instruction.” At 10:37 a.m., JAMES placed a phone call to WALDEN, which lasted 2 seconds.

Then last month, Kenneth Harrelson released Mike Simmons’ [Person Ten] 302s (purportedly in a desperate bid to adopt his lies, but possibly also to let others know what FBI had been investigation in May).

They revealed that Joshua James, who was in charge of the security detail at the Willard, called in several times to Simmons and seems to have cited Stone’s gripe about being treated poorly to Simmons.

This is what I was referring to in this post about the effect of disappearing Mark Grods, the one overt cooperator who was at the Willard that morning, from all last week’s indictments. Several decisions made in the structure of these most recent indictments — spinning Walden off by himself, disappearing Grods, focusing on the activities of two stacks in the sedition indictment (and thereby starting the narrative at a later point in time), remaining coy about the present status of Simmons, and eliminating James and Minuta in the Crowl indictment — had the effect of eliminating the coordination with the Willard from the sedition indictment altogether.

Poof! Where’s Roger?

Trust me. I don’t think DOJ has decided that the Oath Keepers’ presence at the Willard was unimportant. On the contrary. I think they’ve just decided to move onto making other people sweat about their communications with now-charged seditionists appearing in the indictment, while hiding how much more they’ve learned about the Willard in recent weeks.


Stewie’s Assault Rifle: Comings and Goings in the Sedition Militia

I’d like to return to what DOJ did with the Oath Keeper indictments.

As I explained, one thing the sedition indictment did is provide DOJ an easy way to split the unwieldy 17-person indictment into two trials. The first, the sedition trial, includes a barely manageable 11 people, all of whom played a leadership role and/or an active role in putting together the Quick Reaction Force stashed at the Comfort Inn in Ballston.

The second, with seven people charged, named “Crowl” after Donovan Crowl, is still just a conspiracy to obstruct the peaceful transfer of power, though charged under the obstruction statute (18 USC 1512(k)), making the potential sentence for the conspiracy charge higher even for those who, like James Beeks, really just hopped on a stack at the last minute. On top of everything else, these defendants now face the prospect of going to trial after what will surely be a high profile sedition trial, which will make it a lot harder to convince a jury of one’s innocence.

In addition, curiously, DOJ charged Jonathan Walden by himself with just obstruction and trespassing.

Whether DOJ charged Walden by himself in preparation of a plea from him or for some other reason, charging him by himself makes a change in naming convention a lot easier.

In past Oath Keeper conspiracy indictments, DOJ referred to charged defendants in all-caps, those who entered cooperating plea deals in standard text, and those who hadn’t been charged yet using a number system, with Person One being Rhodes, as in this paragraph from the December indictment.

The Crowl indictment generally adheres to this practice, listing both those charged in Crowl and those charged with sedition at the beginning to make it clear it’s all one conspiracy.

But because of the way the Crowl indictment is scoped — focusing on what the sedition indictment calls “Stack One” (the one that busted into the Capitol in spectacular fashion) — certain people are not named at all. Roberto Minuta and Joshua James from the sedition indictment aren’t there, Walden, now spun off on his own is not there.

And cooperating witness, Mark Grods, is not there, at all. Whatever references there are to him just refer to him as a co-conspirator.

It’s not just Grods. A bunch of people, formerly numbers, are just co-conspirators now. Perhaps DOJ did that to sow as much paranoia as possible, so that the defendants have no idea who has flipped and who hasn’t. But I’m particularly interested in Grods’ absence for reasons I’ll explain in a follow-up.

Anyway, this naming convention is most notable with the treatment of Person Ten, who has been identified as Michael Simmons by Mother Jones and others, but who is referred to in the sedition indictment as “the operation leader.”

As with Walden, it’s not entirely clear what’s up with Simmons. It cannot be the case that DOJ decided he had no criminal exposure. As prosecutor Kathryn Rakoczy noted in December, Simmons’ attempts to pretend he didn’t know about the insurrection in May FBI interviews “lack credibility.”

Person Ten’s Statements Are Lacking in Credibility

Person Ten, as an uncharged individual who was aware that others have already been charged, had a motive to downplay or disregard both his own involvement and any preplanning efforts. And documentary evidence contradicts Person Ten’s blanket denials. For instance, on October 8, 2021, the government disclosed a Signal chat thread named “Jan 5/6 DC Op Intel team,” which included Person One, Person Ten, codefendant Joshua James, and about seven other individuals. On the Signal thread, shortly before 2:00 p.m. on January 6, a participant posted a video titled “live stream of patriots storming capital.” Another participant asked, “Are they actually Patriots – not those who were going to go in disguise as Patriots and cause trouble[?]” Person Ten authoritatively answered, “[T]here [sic] patriots.” Person One added, “Actual Patriots. Pissed off patriots[.] Like the Sons of Liberty were pissed off patriots[.]” Codefendant Joshua James followed with, “Were coming to Capitol ETA 30 MIN[.]”

The Sixth Superseding indictment alleges that at 2:14 p.m. on January 6, Person Ten informed the “DC OP: Jan 6 21” Signal chat that “The[y] have taken ground at the capital,” and, “We need to regroup any members who are not on mission[.]” ECF 513 ¶ 125. At 3:05 p.m.— twenty minutes after Defendant Harrelson and other codefendants breached the Capitol, and ten minutes before Defendant James and his second wave of coconspirators breached the same doors—Person Ten also messaged another individual, “Were [sic] storming the capital.”

So something had to have happened with Simmons, with a cooperation deal a likely explanation. That’s why I’m interested in a few details laid out in the sedition indictment.

The main QRF for the people charged in the sedition indictment was (as I never tire of saying) in the Ballston Comfort Inn. Here’s what these guys looked like toting their gun cases around on luggage carts on the surveillance footage.

But before Kelly Meggs and Thomas Caldwell and others settled on the Ballston Comfort Inn for the QRF, Rhodes offered to store weapons for Meggs in the trunk of Simmons’ car.

50. On January 2, 2021, RHODES messaged MEGGS on Signal, “If you want to stow weapons with [the operation leader] you can. He’ll have a secure car trunk or his hotel room (or mine).” MEGGS responded, “Last night call … we discussed a QRF RP so we may do that. As well as the NC team has a hotel room close by.” RHODES messaged, “Ok, We WILL have a QRF. this situation calls for it.” [my emphasis]

The sedition indictment seems to describe Joshua James dropping off weapons at the Hilton Garden Inn in Vienna, VA.

68. On January 5, 2021, JAMES dropped off firearms and ammunition that he, ULRICH, and other co-conspirators had transported to the Hilton Garden Inn in Vienna, Virginia, where RHODES, JAMES, MINUTA, and others were staying.

One of the “others” staying at the Hilton Garden Inn referred to in this paragraph, the earlier indictment makes clear, was Simmons.

On January 4,2021, PERSON TEN checked into the Hilton Garden Inn in Vienna, Virginia. The room was reserved and paid for using a credit card in PERSON ONE’s name.

Anyway, it’s not entirely clear whether that paragraph 68 means that James dropped off weapons he had driven to Vienna at the Comfort Inn, or whether he brought those weapons to the Hilton Garden Inn and they stayed there. It’s worth noting, though, that by leaving Grods out of the sedition indictment, DOJ left out this paragraph from earlier indictments.

On January 2, 2021, Grods messaged JAMES on Signal and asked, “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 responded, “Yeah full gear… QRF will have weapons Just leave em home.”

That is, by leaving Grods out, DOJ got to leave out some details about the fate of James’ weapons, too.

And while the sedition indictment has a ton of new details about Rhodes serially arming himself as he drove to insurrection…

On January 3, 2021, RHODES departed Granbury, Texas, and began traveling to the Washington, D.C., metropolitan area. While traveling, RHODES spent approximately $6,000 in Texas on an AR-platform rifle and firearms equipment, including sights, mounts, triggers, slings, and additional firearms attachments.

[snip]

On January 4, 2021, while still traveling toward the Washington, D.C., metropolitan area, RHODES spent approximately $4,500 in Mississippi on firearms equipment, including sights, mounts, an optic plate, a magazine, and various firearms parts.

… The sedition indictment provides not one detail of where Stewie’s personal arsenal ended up once he got to VA. It doesn’t say he kept all those weapons at the Hilton Garden Inn in Vienna. It doesn’t say the weapons got moved to the Comfort Inn in Ballston.

The sedition indictment does, however, explain that Rhodes and Simmons drove to DC together the morning of insurrection.

At approximately 8:30 a.m., RHODES and the operation leader, and others departed a hotel in Virginia for Washington, D.C., and drove to the Capitol area.

So Rhodes and Simmons traveled to DC in something that had a trunk, like the one days earlier where, Rhodes said, Meggs could stash his weapons.

And I find that interesting because Rhodes and Simmons weren’t together when the insurrection kicked off. Earlier indictments make clear that Rhodes was trying to meet up with Simmons as everyone started converging on the Capitol.

At 2:06 p.m, PERSON ONE sent another message to the Leadership Signal Chat asking for PERSON TEN’s location before stating, “I’m trying to get to you.”

And in fact, Rhodes kept trying to get people to come to the south side of the Capitol, even though all the action was happening north of there.

At 2:25 p.m. PERSON ONE forwarded PERSON TEN’s message (“The have taken ground at the capital[.] We need to regroup any members who are not on mission.”) to the Leadership Signal Chat and instructed: “Come to South Side of Capitol on steps” and then sent a ‘photograph showing the southeast side of the Capitol.

Rhodes’ 2:06 text got cut from the sedition indictment, though his 2:25 one made the cut.

At 2:32, as the Stack was assembling outside the East steps of the Capitol, Kelly Meggs called Rhodes and got conferenced into an already existing call with Simmons.

At 2:32 p.m., MEGGS places a phone call to RHODES, who was already on the phone with the operation leader. RHODES conferenced MEGGS into the call.

Minutes later, after Kelly Meggs and the first stack busted into the Capitol, and Meggs walked towards the office of Pelosi (whom he threatened to kill on election day) with Joseph Hackett and others, Hackett came back out to the entrance as if he was trying to meet up with someone, only to give up and leave.

The detention memo suggests they — apparently including Berry and Connie Meggs, though the detention motion doesn’t mention them — went from here to stand outside Pelosi’s office, and then Hackett — apparently by himself — came back through the Rotunda, stood outside the East Door, looking outward, as if waiting to meet with someone.

Hackett then enters back into the Capitol, goes back to where he (apparently) left Moerschel, Harrelson, and Meggs, along with Berry and Connie Meggs (though they aren’t mentioned) and then he and Moerschel exit the building.

Neither Rhodes nor Simmons entered the Capitol.

To be clear: we have no idea what happened to Simmons and it’s not clear whom Hackett was looking for as Kelly Meggs attempted to hunt down Nancy Pelosi.

But I think it distinctly possible that Simmons drove Stewie’s weapons into DC. Which — particularly if there were a plot to assassinate Nancy Pelosi — would increase Simmons’ exposure significantly.

Update: I just re-read Mike Simmons’ 302s. And he claims that he parked by the Jefferson Memorial.

That’s the location of the “sea” landing point for the QRF teams.

On the evening of January 2, 2021, at about 5:43 p.m., KELLY MEGGS posted a map of Washington, D.C. in the Leadership Signal Chat, along with the message, “1 if by land] North side of Lincoln Memorial[,] 2 if by sea[,] Corner of west basin and Ohio is a water transport landing 11” KELLY MEGGS continued, “QRF rally points[.] Water of the bridges get closed.”


BREAKING (WaPo’s Stenography): Prosecutors Are Asking about Rudy Giuliani’s Ties to Militias

The WaPo has published their second piece in a row that does embarrassing transcription work for Trump flunkies claiming they’re not under investigation for January 6.

I tweeted about the latest admission that four journalists from WaPo know fuckall about the actual investigation (or that into Rudy at SDNY) here. I tweeted about how alarming it was that people who called themselves journalists wouldn’t disclose that Jonathon Turley was the Former President’s impeachment lawyer here.

As I noted, apparently none of the four WaPo journalists are familiar enough with the investigation to know where to look to test their questions about whether DOJ is investigating Trump. But I guess it’s a good thing that WaPo relied on the expertise of their embedded Mar-A-Lago journalist (!!!) for these issues.

Nevertheless, WaPo does break news in the thirtieth paragraph of the story. It reveals that Rob Jenkins, a lawyer representing a bunch of militia defendants, keeps getting asked about Roger Stone and Rudy Giuliani‘s ties to militia members.

Rob Jenkins, a defense attorney representing multiple people linked to the Oath Keepers and Proud Boys, another far-right group, said prosecutors have been “pretty aggressive” in “seeking out information … that points to others’ involvement and culpability.”

They are interested, he said, in “preplanning, and participation in those preplanning on the part of the individuals who may not have come to D.C. on Jan 6 but were certainly part of the planned effort.” That includes both leaders in the groups and people who spoke at the rally on Jan. 6, including close Trump allies Rudy Giuliani and Roger Stone, he said.

“There was a lot of talk,” Jenkins said. “But I haven’t seen anything that would make them criminally liable.” [my emphasis]

Jenkins serves as sponsor for out of district lawyers, so it’s hard to measure who he’s representing personally. But among others, he shows as an attorney of record for:

Joshua Pruitt, a Proud Boy who just got his bail revoked

William Pepe, alleged to be member of the Proud Boy Front Door conspiracy

Christopher Worrell, a Proud Boy accused of spraying cops with toxins

Paul Rae, a Proud Boy who accompanied Joe Biggs everywhere on the day of the insurrection

Ryan Samsel, who — after he had some words with Joe Biggs — kicked off the entire riot

In other words, what the WaPo reported — in paragraph 30 — is that prosecutors believe not just the Former President’s rat-fucker, who has long paraded his ties to militias like the Proud Boys and Oath Keepers, but also the Former President’s personal lawyer, might have ties to the people who played key tactical roles in the insurrection.

That’s not a surprise. Rudy tweeted proof of that exactly a year ago.

But for some reason, the WaPo decided to bury the fact that prosecutors are pursuing this angle (even while claiming — Rudy’s phones notwithstanding — that prosecutors are not investigating what went down at the Willard), in paragraph 30.

In an article asking whether prosecutors are investigating Trump, the Washington Post buried evidence that prosecutors believe Rudy has ties to the militias who organized the event in paragraph 30.

One might think it newsworthy that an attorney for the Proud Boys revealed that prosecutors are, in fact, investigating Rudy’s militia ties. But the WaPo took from that, instead, that DOJ is not investigating Trump or anyone who might have been coordinating with the militias from the Willard Hotel.

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Originally Posted @ https://www.emptywheel.net/january-6-insurrection/