December 8, 2022 / by 

 

The Rules Against Keeping Classified Documents in an Unsecure RV Parked alongside Jeremy Brown’s Home

Several days into the trial of Oath Keeper Jeremy Brown, it continues to provide useful lessons for the case of that other disgruntled former Federal employee who took classified documents home to Florida with him.

In a motion in limine submitted yesterday, the government sought to preclude Brown from taking the stand and explaining why he took one of the classified documents he is accused of storing in his RV.

Count 10 charges the Defendant with violating 18 U.S.C. § 793(e) in connection with his willful retention of the Classified Trip Report. The parties have agreed that in order to prove the Defendant guilty of this offense, the government must establish that (1) the Defendant possessed the Classified Trip Report without authorization, (2) the Classified Trip Report relates to the national defense, and (3) the Defendant willfully retained the Classified Trip Report and failed to deliver it to an officer of the United States entitled to receive it. See Dkt. 230-1 at 19 (joint jury instruction setting forth elements of 18 U.S.C. § 793(e)).

Notably absent from these elements is any requirement that the Defendant intended to harm the United States. Nor does the government need to prove that the Defendant even knew or had reason to know that his conduct would harm the United States. Consequently, evidence of the Defendant’s motive, rationale, or justification for possessing the Classified Trip Report is irrelevant to the elements of this offense—unless he is contending that he was authorized to possess the Report (which he has never and cannot credibly argue).

Such evidence is also not relevant to establishing that the Defendant “willfully” retained the Classified Trip Report. The Defendant either acted willfully—i.e., he knew that his conduct was generally unlawful—or he did not. His reasons or motive for so acting are irrelevant. Here, the Defendant knew that the Trip Report was classified and he knew that it was against the rules to keep classified [sic] in an unsecure RV parked alongside his home. Indeed, he placed the classified markings on the document himself, and chose to include particularly sensitive information in the Report that could jeopardize U.S. national security. The Defendant’s subjective preference that some of the information in the document should have been at a different classification level – as pointed out to the jury during cross-examination of Special Agent Koundarakis – is similarly irrelevant. On these facts, the Defendant acted willfully. The Defendant’s subjective belief that he had good intentions, or his preferred classification level for the information in the document, is entirely immaterial to that analysis.

This is the kind of motive argument that many people accused of 18 USC 793(e) want to argue. Trump (or Kash Patel) himself has argued a form of it by arguing that he should have been able to take the documents about the Russian investigation to prove he was unfairly targeted.

In this case, the government is arguing that doing so (Brown already did so in opening arguments) amounts to jury nullification.

“[T]he potential for jury nullification is no basis for admitting otherwise irrelevant evidence.” Funchesi, 135 F.3d at 1409. The defendant does not have a due process right to present evidence “the only relevance of which is to inspire a jury to exercise its power of nullification.” Id. at 1408. Rather, “[j]ury nullification verdicts are lawless, a denial of due process and constitute an exercise of erroneously seized power.” Id. at 1409.

If and when Brown’s fellow Floridian is ever charged with 793(e), I expect to see a much more extended version of this argument: That’s it’s okay to bring home classified documents and store them in your RV or leatherbound box of trophies because you had a good motive.

But there will be a whole bunch of precedent ruling such arguments about — possibly even from Brown’s own case! And since the 11th Circuit ruled that Trump isn’t special, I don’t expect any attempt to argue motive will work


A Counter Perspective: On the House January 6 Committee’s Impending Referrals

[NB: it’s an absolute must to check this byline, thanks. /~Rayne]

We don’t all agree here at emptywheel all the time. Our reactions to the news about the House January 6 Committee’s intent to issue criminal referrals is one of those occasions.

You can read bmaz’s take at this link. If you’ve been reading the site’s comment threads since the first posts here about the January 6 Committee’s work, you already had a pretty good idea what bmaz’s sentiments have been as he’s been quite clear.

In essence bmaz found Tuesday’s news about the Committee’s expected criminal referrals

– attention seeking (“media whores,” “preening,” “infomercial”);
– the referrals an activity which “means absolutely nothing” because the Department of Justice will prosecute on their own.

One point of contention between us has been the nature of the Committee’s work. bmaz has called it political, referring to the committee negatively as a “political body” and the criminal referrals “useless and meaningless political gestures.”

Yes, it is political. That’s how governance happens, through politics.

From Merriam-Webster dictionary:

1 a: the art or science of government
b: the art or science concerned with guiding or influencing governmental policy
c: the art or science concerned with winning and holding control over a government

2: political actions, practices, or policies

3 a: political affairs or business
especially: competition between competing interest groups or individuals for power and leadership (as in a government)
b: political life especially as a principal activity or profession
c: political activities characterized by artful and often dishonest practices

From Cambridge Dictionary:

the activities of the government, members of law-making organizations, or people who try to influence the way a country is governed

From Macmillan Dictionary:

the activities and affairs involved in managing a state or a government

the profession devoted to governing and to political affairs

social relations involving intrigue to gain authority or power

the opinion you hold with respect to political questions

the study of government of states and other political units

In the simplest, bluntest terms, politics is how shit gets done by groups who are not all of the same mind at the same time. Governance in a democracy is politics, it is political activity.

Congress is inherently a political body, its activities are political, and the government it legislates to execute laws is a function of politics at work.

~ ~ ~

There is nothing wrong with politics except when it denies the rights of individuals to exist, stripping them of agency and autonomy for the purposes of an exercise in partisan ideology and/or autocratic power, and/or personal venality rather than to achieve the aims of our shared social contract, the Constitution.

It is particularly egregious when the persons aiding and abetting an attack on the Constitution are those who have not only participated in politics for the purposes of serving as an elected representative and then sworn an oath to defend the Constitution and its aims:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

What happened on January 6, 2021 at the U.S. Capitol Building in Washington D.C. was the furthest thing from a more perfect Union. The acts of thousands sought to undermine the domestic tranquility of millions to the personal benefit of one man.

This was not politics but its antithesis, an attempted smash-and-grab intended to deny liberty and justice obtained through political activities, by obstructing government operations in the transition and transfer of a democracy’s leadership.

~ ~ ~

The Constitution to Article I, Section 1 confers upon Congress “All legislative Powers” – this is the legitimization of a political body to effect the nation’s governance.

Congress’s Powers under Article I, Section 8 include:

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

as well as

To make Rules for the Government

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards and other needful Buildings;-And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

[bold mine]

Without exercising these powers Congress cannot assure its obligations under the Constitution are completed.

In the specific case of January 6, Congress was attacked in its own seat of power, its election-related proceedings obstructed by domestic terrorists engaged in seditious conspiracy. Americans died, both attackers and defenders. Public property was destroyed.

Response by law enforcement and other security forces like its militia — the National Guard — was not satisfactory leading up to and during the January 6 attack. The risk of domestic terror remained high even after that date.

The person who stood to benefit most from the terror and the obstruction wrought was the head of the executive branch, whose function as executive is subject to legislation and oversight by Congress. That same person may have abused his office to further his personal interests.

It is wholly natural to expect the House to investigate the terror attack on Congress’s offices and its proceedings; it’s part of Congress’s job.

The attack aimed to stop the activities essential to the republic. To that end the House established the January 6 Committee and the mission which the committee was to fulfill.

The mission included releasing a final report of findings to the public, with interim reports as necessary, with the ultimate goal specification of corrective measures to remedy failings and improve the security posture of the Capitol and the nation, without regard to the political party helming either house of Congress or the executive branch.

All of that is politics. All of that is political. That is the nature of government in a democracy.

~ ~ ~

With regard to the complaint the January 6 Committee acted like “media whores,” this site’s comments certainly didn’t reflect that.

The number of comments published every week about when the public would hear or see something from the Committee in the way of action whether subpoenas or hearings or reports or referrals could be annoying – as annoying and frustrating as the complaints about when the Department of Justice was going to do something, anything.

The number of tweets the Committee has published to date are 627, its press releases which may duplicate tweet content amount to less than 90 over 14 months time — hardly an attention seeking volume.

Marcy wrote a number of posts about the DOJ doing something right under everyone’s noses while pundits complained on television and in social media nothing was being done.

While the DOJ was crunching away on the largest investigation it has every conducted, the J6 Committee did likewise while trying to avoid further obstruction by members of Congress as well as persons who continued to support Trump and his Big Lie.

If anything the American public didn’t hear enough about what the Committee was doing. As of late October, the Committee had issued at least 100 subpoenas; the media reported in any detail only on the most intransigent subjects like former Trump advisor Steve Bannon.

If the Committee had been media whoring, we would have had every jot and tittle crammed in our faces daily and weekly about the subpoenas and consequent testimony – but we saw very little, save for nine hearings taking less than 40 hours time.

What we did see was distilled for a contemporary audience flooded with other media, an audience which wouldn’t have the patience to deal with thousands of hours of testimony and evidence.

It’s quite possible the opposite is true, that the Committee didn’t do enough to share its work in progress with media. Had it done more earlier to release testimony and evidence, perhaps the GOP would have had to counter these reports instead of sowing manufactured fear, uncertainty, and doubt about inflation and the economy’s direction during the mid-term elections.

Perhaps control of the House might not have gone to the GOP if the Committee had been more open about the partisan nature of the attack on the Capitol.

You can be certain had the shoe been on the other foot, with the GOP leading an investigation, it would have been another pointless circus like the Benghazi hearings which GOP congresspersons admitted were purely partisan stunts intended to suppress approval of Hillary Clinton ahead of the 2016 election.

The Benghazi hearings were politics without governance, not one passed bill as a result of all the hot air.

That 2015 committee’s work “means absolutely nothing” even seven years later, except as a cautionary tale about partisan hackery in lieu of governance.

~ ~ ~

Again, not all the team here at emptywheel will agree about the J6 Committee’s work, particularly the anticipated criminal referrals.

Marcy mentioned in comments,

… If it’s a referral on 1512 grounds for Trump, I’m not all that interested. If it’s a means to refer the witness tampering for specific witnesses that would not have been replicated before DOJ, by all means refer.

By “1512” she means Title 18 U.S. Code 1512 – Tampering with a witness, victim, or an informant – I’m not certain which subsection(s) she means.

The Committee will likely refer whatever it found, though, without regard to the DOJ’s progress so far. (The Committee should not know much about the DOJ’s investigative efforts.)

If there is to be corrective action recommended and corresponding legislation drafted, submitted, debated, and passed, there must be a documented need for the change.

We should expect to see some duplication between J6 Committee and DOJ for this reason: they have different objectives.

Because of the Constitution’s Article I, Section 6 Rights and Disabilities, the Committee has more power and latitude to question and demand accountability of its own members within its own chambers, should its investigation have uncovered evidence of criminal behavior by congresspersons who supported Trump’s Big Lie efforts.

Further, the J6 Committee has an obligation to history and not just its legislative duties. It needs to document what crimes it found had been committed against it, the political body which acts as the representative of the people in its creation of laws to create a more perfect Union.

It’s not enough to report a crime has been committed against the people’s representatives. The people must demand with criminal referrals that the highest law enforcement body investigate and prosecute who attacked our democratic republic, even if DOJ has already begun this effort.

As Ben Franklin said in 1787 in response when asked what form of government the Constitution Convention had established: “A republic, if you can keep it.”

The J6 Committee’s “political gestures” are some of the means to do so.


Special Counsel Jack Smith Taught DOJ How to Alphabetize by Last Name! A Tale of Two Subpoenas, and Other Self-Mockery

In the wake of the appointment of Jack Smith, journalists (including yours truly) and TV lawyers everywhere are overreading everything that happens in Prettyman Courthouse, when the reality is that the visible signs of investigation into Donald Trump are largely logical next steps from prior known steps before Smith was appointed. What we’re seeing, thus far, is almost certainly in reality the expected flurry of activity after the election pause ended.

So to make fun of myself and others, let me overread.

BREAKING: Jack Smith has taught DOJ how to alphabetize by last name!

I base that claim on two subpoenas from the same investigation: This subpoena, to some Arizona Republicans, first reported by WaPo in July. And this subpoena, to Milwaukee County Clerk, also reported by the WaPo, today.

Both are from grand jury 22-5, which earlier this year was focusing on the fake elector plot. Both include the same FBI agent, Daniel Mehochko, as the recipient.

But the first subpoena was sent in June, under Matthew Graves (it was signed by AUSA Thomas Windom). The second subpoena was sent on stationary naming Jack Smith (it was signed by AUSA Matthew Burke).

So, in my self-mocking overreading, the difference between the two closely related subpoenas must reflect the passage in time and new rules we’ll ascribe, with no basis, to Jack Smith (but which are almost certainly due to some other thing).

On that logic, one key difference is that in the new subpoena — the one sent under stationary with Smith’s name on it — is that a fairly standard list of names of top Trump associates is alphabetized by last name, whereas the same list in June was alphabetized by first name. (The number after the names in the left column reflect where they showed up in that earlier list.)

There are other differences, too. The newer subpoena covers an earlier but shorter timeframe, from June 1, 2020 to January 20, 2021 than the older one, which covers October 1, 2020 to then present, June 2022. The older subpoena asks for communications with “any member, employee, or agent” of the Executive or Legislative branches, but only asks for comms with agents of Donald J. Trump. The newer one doesn’t ask for comms with Congress (though that may be because members of Congress weren’t involved as they were with the fake electors). But it does ask for comms involving Donald J. Trump, the man, not just the campaign.

Perhaps the most interesting difference — one that may reflect a change of real rather than self-mocking import — is that Joshua Findlay (background here) and Mike Roman (background here) are not on the newer list. Roman had his phone seized in September.

Here are some other events that have happened since Jack Smith was appointed that are probably just the steps that prosecutors already had planned, including some who are probably not on Smith’s team:

  • November 18: A DC prosecutor who has focused on important assault cases, Robert Juman, issued a subpoena to Alex Holder, the documentary film maker who tracked Trump and his family. That was first reported by Politico.
  • November 29 and December 6: Stephen Miller makes two appearances before the grand jury.
  • December 1: Dan Scavino, William Russell, and William Harrison testify before the grand jury.
  • December 2: The two Pats — Cipollone and Philbin — testify for a combined ten hours to the grand jury.

Update: As noted in the comments, the earlier list was also alpha order, just by first name. I’ve attempted to mock myself some more above accordingly.


Trump Is a Mob Boss Whose Omertà Has Started to Fail

In the opening paragraph of Ruth Marcus’ latest column about Donald Trump, she admits that on July 21, 2015, she assured readers, “Do not worry about Donald Trump becoming president.”

It’s only fair, I guess, for me to start a response to Marcus’ column by noting that on July 30, 2015, I told people to worry.

[S]o long as the base continues to eat up Trump’s schtick –the Republicans are going to be stuck with him, because they have few means of controlling him and even fewer to limit any damage he might do if provoked.

[snip]

If all proceeds as things appear to be proceeding — although, yes, it is far too early to say for certain that it will — Republicans will ultimately be applauding the prospect of President Trump.

Marcus’ 2015 column wasn’t all embarrassingly wrong. She correctly noted that slightly over half of Republicans still recognized that Trump did not ideologically match the Republican party, then observed that Trump provided one to replace Republican ideology: Trumpism.

56 percent of all those surveyed, and 54 percent of Republicans, said Trump does not reflect the “core values” of the Republican Party.

[snip]

Trump’s appeal will, hopefully, be fleeting, but it feels different from the flavor-of-the-month parade of GOP front-runners — Michele Bachmann, Herman Cain, Rick Santorum — four years ago. His prominence cannot be attributed to simple celebrity and name recognition.

More than any of those predecessors, it taps into a fundamental anger among a portion of the electorate. Trump is the un-Reagan — unsmiling and unmoored to any ideology other than Trumpism — but his surly message matches the times.

In this week’s column, Marcus cited several other of her columns about Trump. A December 2020 one in response to a long video sowing the Big Lie that would, a month later, incite an attack on the nation’s Capitol, observed that Trump will say what he needs to, even while Marcus hoped that Trump would just melt away.

He will say whatever he needs at the time he needs to say it.

Deluded or evil — in the end, it makes little difference. What matters is the impact of Trump’s words. Perhaps we are in the final, most florid throes of Trump and Trumpism. No doubt it will be far harder to play the bully without the bully pulpit. I have always thought of the Republican Party — Republican elected officials, especially — under the thumb of Trump like the flying monkeys under the Wicked Witch of the West. Once Dorothy throws water on the witch and she melts, the monkeys rejoice in her demise — and their liberation.

What’s worrisome is that Trump isn’t melting — not fast enough, anyway.

An August 2022 one, which doesn’t mention the January 6er who, weeks earlier, had responded to Trump’s incitement and tried to breach the Cincinnati FBI office before dying in a standoff with cops, describes that Trump and Lindsey Graham were promising violence if Trump were charged.

Donald Trump and his defenders are using a version of that gambit to deter the Justice Department from prosecuting the former president, arguing that going after Trump would dangerously incite his already angry followers.

From there, Marcus engages in a factual analysis of the differences between Hillary’s use of a private server and Trump’s theft of highly classified documents, as if that would dissuade anyone from political violence.

This most recent column spends a lot of time reflecting on her — Ruth Marcus’ — thought process when deciding whether to write about Trump. Before July 2015, it was beneath her dignity.

There was a time, in the naive spring and summer of 2015, when I deemed Donald Trump beneath my notice and refused to write about him:

Then she tried calling him out for a while.

There was a time, in the increasingly appalling months and years that followed, that I deemed Trump too dangerous to disregard and I could not stop calling out his never-ending, ever-escalating outrages against American democracy.

Then, until he started riling up mobs in December 2020, she got bored and ignored him.

[D]uring his final stretch in office, and in the years since, I mostly averted my gaze.

As to this particular column, written over six years after telling us not to worry, Marcus says that, even though, “no minds will be changed,” Trump’s latest embrace of authoritarianism must be denounced. Passive voice.

But I mostly thought: Why bother? Shaming targets and convincing readers are the columnist’s goals. With Trump, no minds will be changed, and neither will his behavior.

And yet, there are times when attention must be paid — if only to lay down a marker, if only (grandiose as this may sound) so historians will understand: This went too far. This cannot be allowed to stand without being denounced.

Having decided Donald Trump will be denounced, Ruth Marcus then quotes him.

In full.

The entire Tweet that Marcus found required denouncing, she reproduces in full, and only then starts scolding: “deranged,” “hijacked,” “megalomania,” “bluster,” with each scold reinforcing the tribalism that Trump has always deployed when he’s at risk. In so doing, she has voluntarily become a bit player in Trump’s reality TV show, reinforcement to the mob that Trump retains the power to earn Ruth Marcus’ scolds.

Like Marcus, I don’t think Trump’s desperate wails should be ignored. But I think there is an alternative to “giv[ing] him oxygen.” There’s certainly an alternative to disseminating his screed, which always reinforces the tribalism that Trump uses to survive. Disseminating Trump’s words unbroken, I’m convinced, only serves to signal to his supporters where the dividing lines lay, while heightening the import of that tribalism and Trump’s role in it. Trump is powerful because the liberals he has trained people to despise say he is by disseminating Trump’s words for him.

I prefer to talk about why Trump continues to ratchet up his screeds, with each new week, using increasingly violent rhetoric to ensure he’ll go viral on Twitter. He has to. Or rather, as Marcus herself recognized, “He will say whatever he needs at the time he needs to say it.”

He’s contractually stuck on his loser social media platform, which means the quickest way to get attention is to invite the scolding of people like Marcus. He’s well aware that others — Elmo, Ron DeSantis, even Kanye West — have easier means to command people’s attention. Indeed, at this point, Trump was a mere prop in the reality show that Kanye’s handlers orchestrated.

And most importantly, Trump can no longer promise to wield the tools that led others to believe they could respond to Trump’s calls with impunity — the power to corrupt the FBI and DOJ, the increasing stranglehold on the Republican party, perhaps most importantly, the power of clemency. Trump’s latest wails came on a day when, after having been smacked down by two of his own Appellate appointees, even his most reckless and ill-suited attorneys were probably explaining to Trump that he has almost no options left but to try to minimize the consequences for stealing classified documents. His wails came on a day when the two Pats, Cipollone and Philbin, men who know how he used pardons to pay off coup-conspirators and how he incited a mob to assassinate his Vice President and how he refused to use the power of the Presidency to protect Mike Pence, testified for a combined ten hours to one or more grand juries. Stephen Miller, Dan Scavino, and two others of Trump’s close aides also testified against their former boss last week. Trump even interspersed his calls for a coup with feeble attempts to discount any verdict a jury might soon — today, perhaps! — deliver against his eponymous corporate person.

Trump’s a mob boss whose omertà has started to fail.

Don’t get me wrong. Trump is dangerous as hell, and his mob will continue to pursue political violence whether or not Trump faces accountability. Trump will not melt away and even if he did those liberated from his control may prove to be more dangerous without even something as squalid as Trump to believe in.

But he is also, at this moment, as vulnerable as he has been in at least a decade.

And to a significant extent, his increasingly shrill wails are an attempt to hide that.

Yes, they are also an attempt to mobilize political violence to reverse that vulnerability. But we would do far better to describe all the ways he can no longer deliver his part of the bargain — impunity — than to willfully serve as content mules for his words of incitement.


“We Have a Plan. I’m with Rufio” … But the Government Does Not

There was a big hole in the middle of the Oath Keepers prosecution that likely was a big part of the reason jurors didn’t convict on more of the conspiracy charges. Just after 2:30PM the day of the attack, field leader Michael Greene called Stewart Rhodes. A minute later, Kelly Meggs called Rhodes, who conferenced Meggs into the ongoing call with Greene.

Altogether, the three men were on the phone together for 1 minute 37 seconds, and Rhodes and Greene were on the call for several minutes afterward. The call immediately precedes the First Stack busting into the Capitol, and happens at the same time that Joshua James and others are racing to the Capitol on their golf cart.

By context, it appears to be the moment where Rhodes decided to use the attack on the Capitol to advance his plan to decapitate the government. But for all the cooperating witnesses DOJ flipped in the Oath Keeper case, they never got any of these three to cooperate, and so never were able to prove what was said on the call. On the stand, Rhodes made up some bullshit about difficulties connecting.

While by context it seems to be the moment that these three leaders made a decision on operationalizing their plan, which they then directed others to implement. But absent a cooperating witness from that call, they didn’t have that proof.

And so they got limited conspiracy convictions.

There’s a similar big hole in the middle of the Proud Boys case, one — a status conference just made clear — may be even more fatal for the government’s case. In the time on the evening on January 5 when everyone was trying to figure out what to do given the arrest of Enrique Tarrio, Ethan Nordean and Joe Biggs were temporarily AWOL.

When Biggs reappeared, he described “meeting w[i]th a lot of guys” and that “We have a plan. I’m with rufio,” that is, Nordean.

To this day, even those of use who’ve followed the case closely don’t even know with whom Biggs and Nordean met, much less what the plan was.

And that’s a problem because every Proud Boy witness, even senior prosecution cooperating witnesses Jeremy Bertino and Charles Donohoe, will testify that they knew of no plan to attack the Capitol in advance of January 6.

Absent that, DOJ will point to the plan to meet at the Washington Monument, the ways the Proud Boy plan deviated from the norm (including ditching Proud Boy colors to blend in), the orderly marching, the choice not to show up at Trump’s speech at all and instead to go to the Capitol and rile up a mob of normies.

They’ll put cooperating witness Matthew Greene on the stand to explain that he understood they were crowding the Capitol to pressure Pence.

They’ll presumably put their latest cooperating witness, Isaiah Giddings, on the stand to admit that, “before January 6, Giddings did not know that Congress would be certifying the election results in the Capitol building on January 6,” but that in advance of the attack, “leaders, including Rehl, Biggs, and “Rufio,” would meet separately from the larger group.” Giddings will testify that after the attack, “Rehl, and the other Proud Boys were laughing and celebrating what they had done; namely, stopping the certification proceeding.”

They’ll point to comments afterwards, taking credit for it all.

Tarrio asserted to the Proud Boys “Elders” who had approved his formation of the MOSD, “Make no mistake. We did this.” Similarly, Bertino told Tarrio “You know we made this happen,” and “I’m so proud of my country today,” to which Tarrio replied, “I know.” The next day, Rehl similarly told an MOSD chat group that he was “proud as fuck what we accomplished,”

There is far, far more evidence in the actions the Proud Boys took that day that they did have a plan and succeeded in implementing it beyond their wildest dreams. But they don’t have that plan.

And two likely developments will likely make proving they had a plan more difficult.

First, Proud Boy defense attorneys are alleging that prosecutors are pressuring their defense witnesses with threats of prosecution. One person about whom their making the claim — about MPD lieutenant Shane Lamond, who has been suspended since last February under investigation that he helped the Proud Boys — their complaints are not credible. About others — including a female witness who might either be journalist Amy Harris, who spent a lot of time with Tarrio after he was released and to whom he said a lot of obvious self-exonerating statements, or Eryka Gemma, the woman who gave Tarrio a plan about The Winter Palace — defense attorneys claim they can provide sworn statements that prosecutors interviewed a witness without her attorney present. (I don’t trust either side in this case, so we shall see what actually gets filed.)

That is, as with the Oath Keeper trial, defendants are claiming that prosecutors are making witnesses unavailable with threats of prosecution (and as with the Oath Keeper trial, only some of those claims are credible).

More damaging still for their case, an exchange at the end of a status hearing today suggested that Judge Tim Kelly is likely to prohibit the government from arguing that the Proud Boys were using other rioters are “tools” in their conspiracy (I wrote about this dispute here). That’s sound legally; the government argument doesn’t fit into existing conspiracy law. But it will make it difficult, if not impossible, for prosecutors to prove sedition, which requires the use of force. It is true that key Proud Boys expressed a goal to rile up the “normies” who would then carry out the violence on January 6. It’s even true that probably dozens of rioters said they were following the Proud Boys — but the prosecution here has shown no hint they would call those “normies” as witnesses. It is true that Ryan Samsel — the guy who kicked off the entire riot — had an exchange with Joe Biggs right before the attack. But DOJ never got Samsel to cooperate.

There’s a lot of evidence that the Proud Boys orchestrated the riot and conspired with others in doing so. But it seems likely that prosecutors have the same kind of evidentiary holes, including a potentially fatal one where the plan they finalized on January 5 is, that the Oath Keeper prosecutors did.

Update: On a late re-read, I realized I left out a key caveat on the issue of a plan: People do acknowledge there was a plan. That plan included meeting at the Washington Monument instead of at Trump’s speech, for example. The question is whether it included the attack on the Capitol (the language I’ve added, in bold).


After the Neo-Nazi Demands More Support from Trump for January 6 Defendants, Trump Delivers

As I noted after the Thanksgiving dinner between Trump and a bunch of bigots, a key part of the dinner dropped out of the coverage. Both Nick Fuentes, at the dinner, and Kanye West, in a video after the dinner, demanded that Trump do more to support accused January 6 defendants.

As Jonathan Swan tells it (with Zachary Basu), in addition to scolding Trump about his increased reliance on teleprompters, Fuentes also delivered the message that parts of the far right are disappointed with Trump, in part, because he has not supported January 6 attackers sufficiently.

Fuentes told Trump that he represented a side of Trump’s base that was disappointed with his newly cautious approach, especially with what some far-right activists view as a lack of support for those charged in the Jan. 6 Capitol attack.

  • Trump didn’t disagree with Fuentes, but said he has advisers who want him to read off teleprompters and be more “presidential.” Notably, Trump referred to himself as a politician, which he has been loathe to do in the past.
  • Fuentes also told Trump that he would crush potential 2024 Republican rivals in a primary, including Florida Gov. Ron DeSantis. Trump asked for Fuentes’ opinion on other candidates as well. [italics mine, bold Axios’]

Not only doesn’t this sound like an unplanned encounter — at least from Fuentes’ side — but it affirmatively sounds like the kind of constituent ask that politicians of all stripes make when they discuss whether to endorse a candidate or not. Fuentes hated Trump’s announcement speech — too canned! — but he also warned that Trump needs to do more to support those being prosecuted for their role in Trump’s coup attempt.

[snip]

The complaint that Trump has not done enough for already charged January 6 defendants (or, as Ye complained himself, not pardoned everyone) comes at a rather sensitive time. Of the January 6 defendants likely included in the seven Feuer cites, Christan Secor (holding the America First flag below) was sentenced in October by Trevor McFadden, who normally goes easy on January 6 defendants, to 42 months in prison.

More recently, the FBI arrested a group of 5 American Firsters in September, including former Fuentes deputy Joseph Brody (in the American flag mask and the suit in the picture above). One, Thomas Carey, is set to plead guilty on December 22, which will come with — at least — an interview on the others. And while DOJ portrayed groyper Riley Williams as having been radicalized by watching Nick Fuentes videos rather than in person, she was just jailed pending her February 22 sentencing, and any retrial on the hung charges (obstruction and abetting the theft of Nancy Pelosi’s laptop) might be easier if there was cooperation from others who were present in Pelosi’s office, as Carey may have been. Which is to say that the January 6 investigation into America First is getting closer to Fuentes himself.

But, particularly given Ye’s invocations of Stone and Jones in this context and Stone’s repeated complaints that Trump didn’t pardon him after January 6, those probably aren’t the only January 6 defendants Fuentes meant to invoke. Both Stone and Jones were named repeatedly during the Oath Keeper trial. Both are likely to be named in the upcoming Proud Boy Leaders trial. One Jones employee, Sam Montoya, pled guilty to parading on November 7. His plea agreement lacks the standard cooperation paragraph, which sometimes means that someone had to cooperate in advance to get the plea deal. And Jones’ sidekick, Owen Shroyer, is due to let Judge Tim Kelly know whether he plans on pleading at a status hearing tomorrow.

So the January 6 investigation is getting closer to Stone and Jones too.

Even some in Ye’s entourage have come under investigation, at least in Fani Willis’ investigation, for their role in Trump’s false voter fraud claims.

Trump’s meeting with Fuentes is a big deal. But it likely goes beyond, just, the fact that Trump was sharing Thanksgiving with noted anti-Semites. Both Ye and Fuentes used the meeting to raise Trump’s failures to protect those who helped his last attempt to seize power illegally.

Now, about ten days later, Trump seemingly responded to that request by taping a video that was shown at a holiday meeting of the Patriot Freedom Fund (just after 1:54), a grifty non-profit with ties to convicted Jan 6er and neo-Nazi Tim Hale-Cusanelli. The organization is one of several that preys on family members, funds lawyers to spew conspiracy theories (Joe McBride appears in this video), and generally celebrates the men and a few women who attacked the US as “patriots.”

And, as with the original ask, news outlets are not tying this apparent response with the ask.

Neo-Nazi Nick Feuntes made an ask, one tied to support for his reelection, and shortly thereafter Trump taped a video for a neo-Nazi tied organization celebrating those who attacked the Capitol.


More on the Government’s January 6 Google GeoFence

In October, I wrote a piece on a reasonably framed challenge to the Google GeoFence used to investigate January 6, in the trespassing case of David Rhine. In recent days, Wired picked up my story, but didn’t situate the GeoFence in the context of prior rulings overturning their use, including the EDVA ruling in March on which this challenge most directly relies. Nor did it show how this information worked with other evidence against Rhine (including two tips), that led to his arrest. That led to a lot of alarmism that, if the January 6 GeoFence is upheld, it’ll set some kind of precedent.

Yesterday, the government submitted its response to the challenge, which better explains how the GeoFence was used and why it is highly unlikely the conditions present with this GeoFence will be replicated in the future. That description is here.

As described this was a three step process:

  • Provide an anonymized list of the phones using Google Location Services that were present in the Capitol between 2 and 6:30PM on January 6 (whether in Google records preserved on the evening of January 6, the morning of January 7, or still on January 13). In addition, provide anonymized lists of phones using Google Location Services present in the Capitol between 12:00 and 12:15 and/or 9:00 and 9:15 PM on January 6.
  • Eliminate devices believed to be legally present in the Capitol (because they were in the earlier and/or later lists, so there before and/or after the riot), and identify those that evinced likely criminal behavior, either because the location data showed at least one hit entirely within the margin of error, or because there device showed presence in the Capitol (but not entirely within the margin of error) but also showed evidence of account deletion.

First, the government compared the 2:00 p.m. to 6:30 p.m. data with the noon and 9:00 p.m. “control” lists, and then struck the control-list devices from the main list. Def. Ex. A at 27. That process eliminated over 200 unique devices. Def. Ex. B. at 7. Second, the government eliminated all devices except those that had at least one location data point within the Capitol building with a margin-of-error radius entirely within the geofence. Def. Ex. B. at 7. This process reduced the pool to approximately 1,500 unique devices. Id. Third, the government added back 37 devices that, despite not having a margin-of-error radius entirely within the geofence, still hit on the geofence between 2:00 p.m. and 6:30 p.m. and, in addition, had another indicator of criminal activity: the account’s Location History data was deleted at some point between January 6 and January 13.

  • For the resulting ~1,500 devices, DOJ obtained a second warrant for Google to obtain the account identifier.

As the government explains this Google GeoFence differs from ones that have been overturned in several ways. Most importantly, in addition to the claim that the use of Location Services is voluntary (as distinct from location services associated with using cell phones), which was rejected in other GeoFences, here, the government also argues that, even on a normal day, anyone entering the Capitol would have no reasonable expectation of privacy, but all the more so here, where it was closed to the public.

So whereas the government argued that with Google and Facebook, users had no Reasonable Expectation of Privacy regarding information voluntarily shared with the tech company, they appear to have pursued individualized warrants with cell companies because sharing that information (under Carpenter) does involve REP. For all three, though, I think the government would argue there was no REP for people who entered the Capitol without authorization.

The government is also relying on the short timespan — 4.5 hours — to justify its GeoFence.

Relatedly, in contrast to other GeoFences that encompassed public spaces and in some cases, private residences, here, most people captured by the Google GeoFence would be people who committed a crime by being in the Capitol, or who were witnesses, victims, or first responders.

The defendant’s reliance (ECF No. 43 at 16) on the magistrate judge’s decision in Matter of Search of Information Stored at Premises Controlled by Google, 2020 WL 5491763 (N.D. Ill. July 8, 2020), is misplaced for essentially the same reason: there, the geofence covered “a congested urban area encompassing individuals’ residences, businesses, and healthcare providers,” so that “the vast majority of cellular telephones likely to be identified in [that] geofence will have nothing whatsoever to do with the offenses under investigation.” Id. at *5 (footnote omitted); see also id. at *5 n.7 (stating that “[t]he government’s inclusion of a large apartment complex in one of its geofences raise[d] additional concerns … that it may obtain location information as to an individual who may be in the privacy of their own residence”). Again, the geofence here was limited to the U.S. Capitol during a time period when members of the public were not allowed to be in the area.

In the past, I’ve noted that the others captured by the GeoFence would be victims (employees of Congress, whether Members, staff, or service staff) or First Responders. The most serious privacy exposure here might be journalists, particularly those carrying burner phones or similar.

I asked Igor Bobic, as a test of whether a credentialed journalist would be included in those deemed legally present(recall that Bobic took the iconic footage of Doug Jensen chasing Officer Eugene Goodman up the steps). He told me he was inside the Capitol for both the control periods, at noon and at 9PM. That makes sense: those present to report on the vote certification would have had cause to show up before it started and to stay — often until the wee hours of the morning — to witness its completion.

In other words, journalists who were covering events outside, but followed rioters in (and there were substantial teams from multiple media outlets as well as a number of documentary teams), would be those whose privacy was most affected.

I said in my last post that this is a well-argued motion to suppress. But the government’s response explains why Rhine is not the best situated defendant to bring this challenge. Generally, the FBI has used this GeoFence in three ways: To confirm already identified defendants were present in the Capitol or entered the Capitol, to help identify a suspect in surveillance footage, or (more recently) as leads sent out to the field to run down.

As I suspected, Rhine is in the second category: DOJ opened the investigation and advanced it based off several tips and even had confirmed Rhine’s presence via a particularized warrant to Verizon. Only later did it use the GeoFence to identify where in the existing surveillance footage to look for images of Rhine (who obscured his face with a mask).

In June 2021, the FBI’s principal investigator spent approximately 10 hours reviewing videos from the U.S. Capitol Building, attempting to locate the defendant and his activities during the January 6 riot. Def. Ex. O. During this initial review, the investigator already had access to the geofence data, which the FBI investigators received in March 2021. Gov’t Ex. 1. Despite having access to the geofence data, the investigator’s initial efforts were not successful. Def. Ex. O. After receiving additional training about the FBI’s video system, the investigator was able to locate the defendant in the Capitol Police footage. Def. Exs. O, P. The FBI then traced the defendant through U.S. Capitol based on his clothing and appearance. Def. Ex. O at 1-4 (trace of the defendant through the U.S. Capitol); Def. Ex. M at 15-22.

[snip]

[T]he November 2021 Affidavit described, in addition to the results of the geofence warrant, a constellation of evidence supporting probable cause. First, it described information reported by two separate tipsters who had learned that the defendant had entered the Capitol building during the riot on January 6. Def. Ex. M at 12. The first tipster also reported that, when confronted, the defendant did not deny entering the Capitol building and claimed that the Capitol police moved the barriers to let him into the building. Def. Ex. M. at 12. Second, the affidavit stated that, according to Verizon records, the defendant’s cell phone had connected, during the riot, to a cell site whose service area included the U.S. Capitol building’s interior. Def. Ex. M. at 12-13. Third, the affidavit reported that, in March 2021, investigators interviewed the first tipster. Def. Ex. M at 13. The tipster explained that, though he had not personally seen the Facebook post in which the defendant’s wife referred to the defendant entering the Capitol on January 6, he had seen a screenshot of the post, which a friend had sent to him. Id. The tipster also stated that he believed the defendant’s wife had deleted the Facebook post shortly after posting it. Id. And the affidavit included a screenshot of text messages that the tipster exchanged with the defendant and his wife after learning of the defendant’s participation in the riot. Id. In the exchange, the defendant did not deny entering the Capitol; in fact, he implied the opposite, stating that he saw no violence, and that Capitol police removed barriers and let people in. Def. Ex. M. at 14 (Aff. ¶ 42). Fourth, the affidavit reported that, in September 2021, the tipster identified the defendant in a still photograph obtained from the Capitol Police closed-circuit surveillance system: Def. Ex. M at 15. Fifth, the affidavit explained that investigators placed the same individual depicted in the photograph above at various locations inside the U.S. Capitol Building during the January 6 riot. Def. Ex. M. at 15-23. The affidavit included 10 supporting screenshots, complete with descriptions of the events depicted in the photographs. See Def. Ex. M at 16-23. Finally, the affidavit reported that, according to a Capitol Police officer who arrested the defendant inside the Capitol, the defendant was found in possession of two knives and pepper spray, which were seized. Ex. M, at 19. Even without the geofence evidence, the affidavit contained ample evidence of probable cause.

There are other arrest affidavits that, at least as described, start with the identification in the Google GeoFence (here’s one example). Some even suggest that leads based off GeoFence hits were sent to field offices to chase down. While there are no arrests based entirely on the GeoFence, defendants arrested after an investigation that started from a GeoFence lead would seem to be better situated to challenge the GeoFence.

In any case, the unique conditions at the Capitol on January 6, based on the fact that any unauthorized person who entered the Capitol was likely breaking the law, are unlikely to be replicated anytime in the future.

So whether or not this is sustained (and the warrants based on it would be sustained on good faith grounds), it’s unlikely to be a precedent for other GeoFences.


Skull and Bones: The Proud Boys’ Non-Conspiratorial Secret Society?

The morning of January 5, according to the government sentencing memo for him, Proud Boy Nicholas Ochs texted Ethan Nordean to say that, in light of the arrest of Enrique Tarrio the day before, he and Nordean were, “senior leadership in DC till Enrique is sprung.”

Following Tarrio’s arrest, Ochs messaged Nordean the morning of January 5. He said, “I guess we’re senior leadership in DC till Enrique is sprung. I’ll be in today or tonight. Lemmie know anything relevant.” Nordean replied, “Ok will do,” and they traded cell phone numbers.

Och’s own sentencing memo addresses that comment, but doesn’t explain it.

[T]he government relies extensively on a single message by Mr. Ochs, where he offhandedly referred to himself as a leader, Dkt. 94, pg. 9, and a tasteless message in which Mr. Ochs states he is “pro-violence,” id., at 4, the government is unable to point to a single actual instance wherein Mr. Ochs actually performed the duties of a leader or acted out in violence during the January 6th riots.

He doesn’t explain what became of the message, if anything (there’s no mention of any calls between Ochs and Nordean, and Nordean’s phone was not operational during the riot).

At least on the surface, it looks like Nordean blew Ochs off.

Instead, and before that comment, Ochs makes a very strained comment — limited to before attending the rally and discussion about their planned activities for the day –about what he said to other Proud Boys on the day of January 6, while he and Nicholas DeCarlo were attending the Trump speech and most of the other the other Proud Boys were marching around DC.

On the morning on January 6, Mr. Ochs and DeCarlo went to the rally where the President was addressing the crowd. Mr. Ochs was dressed in normal civilian clothing and did not wear any special military or other riot gear—unlike the many others who attended the rally, dressed in military/assault garb, signaling their violent intentions. Mr. Ochs was armed only with a smartphone.

Before attending the rally, Mr. Ochs did not communicate with any other Proud Boy members regarding their planned activities for the day. Indeed, at no point during the rally or the resulting assault on the Capitol, did Mr. Ochs coordinate with other Proud Boy members. As is stated in the Statement of Facts, though Mr. Ochs did come across other Proud Boy members in Washington, these were chance encounters and not the result of any prior planning. During the rally itself, Mr. Ochs was unable to live stream the event because the local cellular system was overwhelmed, and given his physical location, he was unable to hear the president’s speech.

At the conclusion of the rally, after the President finished speaking on the Ellipse, Mr. Ochs began seeking out the larger crowd which had begun moving towards the Capitol building—the first of many bad decisions that day. [my emphasis]

Given the evidence, that’s a credible claim.

What’s not covered by Och’s narrow (albeit for sentencing, critical) denials was Ochs’ participation in some small member chat groups, including one, called Skull and Bones, that included Nordean and Enrique Tarrio.

Leading up to January 6, 2021, Ochs participated in several Proud Boys chats on an encrypted messaging application, including one called “Official Presidents’ Chat” and one called “Skull and Bones.” Skull and Bones consisted of a small group (approximately twelve) of the Proud Boys’ Elders, including Enrique Tarrio and Ethan Nordean, both of whom have been charged with seditious conspiracy and other crimes for their roles leading the Proud Boys on January 6. See United States v. Nordean et al., 21-cr-175 (TJK). Some of these chats ended and then were reconstituted (because of concerns about being “compromised”) in the days leading up to January 6.

Of some interest: while the Proud Boy Leaders prosecution used Och’s November 2020 advocacy to wait before embracing violence as a way to show the Proud Boys ratcheted up their willingness to embrace violence.

[A]s the defendants, their co-conspirators, and their tools got further from the election and closer to Inauguration, the language they used to discuss the transfer of power became more desperate and more reflective of a willingness to take matters into their own hands. See Ex. 1 (proposed trial exhibit referenced at 11/18 hearing, with Proud Boys “elder” counseling: “I’m pro violence but don’t blow your load too soon.”).

Here, the focus is on Ochs’ attempts to persuade others to await the Supreme Court, which he was sure would deliver victory to Trump.

In Skull and Bones, on November 7, 2020, the group reacted to Biden being declared the winner of the election. Tarrio said, “Dark times if it isn’t reversed…and if it’s reversed…civil war.” Another user commented, “It’s civil war either way.”

Ochs disagreed: “It’s really not. The odds are with us because of the Supreme Court boys. I’m pro violence but don’t blow your load too soon.” He continued, “Not to be an anti-murder buzzkill but I really think this ISN’T fucked. Once it is, let’s go wild.” Ochs advised the group, “Bush/gore ruling took till December…Trump has a MUCH stronger case.” Ochs said, “Americans are weak and don’t want to fight. Them more so than us, but what’s really going to matter to the common man is what the Supreme Court says. And it will say.”

Another member noted, “Interesting that Trump got that woman through just before this huh. Could be the ace up his sleeve.” Ochs agreed and reiterated his belief that the Supreme Court was the best option to overturn the election: “Don’t fuck up the ruling. It’s a better chance than fighting.” He advised the group not to turn violent yet: “Not till the law enforcement institutions [are] weakened or more on our side. We lose right now.” But he told the group: “I’ll still chimp out if I’m wrong about the Supreme Court tho…we just have to TIME IT RIGHT and DO IT SMART.” Another member proposed that “veterans with combat experience” should “form militias.”

Ochs also expressed optimism in Parler posts that the Supreme Court would overturn the election results, including an image of Justice Thomas as a video game character:

Tarrio and others discussed a conference call on December 19 after Trump announced the rally.

Ochs’ prediction that the Supreme Court would overturn the election results did not come true. Instead, courts rejected dozens of lawsuits challenging the election results. On December 19, 2020, then-President Trump invited his followers to Washington, D.C. for a “wild” protest. The Proud Boys’ chats soon filled with talk of what they would do there. The same day as Trump’s December 19 tweet, in the small-group Skull and Bones chat, one member said, “Trump is calling for proud boys to show up on the 6th.” Ochs, Tarrio, and others then discussed arranging a conference call.

But Ochs is only described as a participant in the larger 50 and 35 person Ministry of Self Defense chats leading up to the riot. His top-level access seems to have remained that Skull and Bones chat.

After cooperating witness Charles Donohoe — though he is not named — is described as attempting to reconstitute the main MOSD list after Tarrio’s arrest, Ochs suggests doing so on the Skull and Bones list (and elsewhere it says it was reconstructed).

At 7:11 p.m., [Donohoe] posted a message in the MOSD Main chat, which read, “Hey have been instructed and listen to me real good! There is no planning of any sorts. I need to be put into whatever new thing is created. Everything is compromised and we can be looking at Gang charges.” The member then wrote, “Stop everything immediately” and then “This comes from the top.”

[snip]

Ochs asked if the Skull and Bones chat, which included Tarrio, should be deleted. Another user responded, “I did tell him to delete telegram off his phone right before he was arrested, so I’m hoping he listened to me.” Ochs sent two responses: “Yep. Smacc it off your phone if there’s trouble. Can always redownload no problem” and “*Fed has joined the chat*”

The sentencing memo describes Ochs getting the message to show up at the Washington Monument twice, on the Main MOSD chat and another unnamed one.

On January 5, in in a reconstituted version of the Main MOSD chat created the evening of January 4, another user sent a message with instructions for the next day: “Everyone needs to meet at the Washington Monument at 10am tomorrow morning! Do not be late! Do not wear colors! Details will be laid out at the pre meeting! Come out []as patriot!”6 ”

6 Ochs received a similar message in another Proud Boys encrypted chat involving approximately 33 members.

But he didn’t follow those directions; he went to the Ellipse speech with Nicholas DeCarlo instead.

But by 4:18PM, when the riot was still very much ongoing, Ochs was back on Skull and Bones in chats in which Tarrio also participated — including someone instructing Tarrio to tell Don Jr to stop condemning the violence.

In the Skull and Bones chat, at 4:18 p.m., another member reposted a photograph of Ochs and DeCarlo smoking cigarettes in the Crypt, and asked, “@Nick_Ochs you inside? Lol.” Ochs replied, “Yeehaw.” Soon after, one member said, “So what now,” and another (whose username indicated he was from the United Kingdom) said, “from our end it looks like Trump ain’t going peacefully.” Tarrio responded, “They’ll fear us doing it again…” When asked, “So what do we do now?” Tarrio replied, “Do it again.” Another user told Tarrio to “text your boy Don jr and tell him to stfu. This is PB country now.”

One explanation for this is that Ochs might have liked to be a more central player in the Proud Boys. But was not, and so he didn’t take part in the Nordean (and Joe Biggs-run) operation on the day of the riot.

And Nicholas DeCarlo joined him in not taking part.

DeCarlo goes even further attempting to distance himself from the Proud Boys — and the “nihilistic” behavior of those who were insufficiently insouciant while rioting.

As the Court can readily determine from both the agreed upon Statement of Facts in this case, as well as the photographic and video evidence, the defendant did not travel to the Capitol as a member of the Proud Boys, a group that he resigned from in 2019. He did not wear their distinctive clothing; he did not coordinate with other Proud Boy members (other than his co-defendant) prior to coming to Washington D.C.; and more importantly, he did not participate in any of the organized violence attributed to the group. In addition, while the Government argues that Mr. DeCarlo acted with “glee” during the riot, that adverb misapprehends the defendant’s intent. While Mr. DeCarlo’s insouciant/sarcastic nature and comments before, during, and after the events are blameworthy, he did not evince the angry, nihilistic demeanor displayed by a significant number of the other January 6 defendants.

The claim he wore no distinctive clothing is irrelevant, as that was what Proud Boys were ordered to do that day. And his complaint that he still bears a Proud Boy tattoo raises questions why he hasn’t removed it to limit the “lifelong” consequences of once having belonged to the group.

The defendant acknowledges that he became a member of the Proud Boys Dallas Fort Worth Chapter in in 2017, but he is adamant that resigned from the organization in 2019 because it was becoming “too political.” Mr. DeCarlo is well aware that his prior membership in the Proud Boys will have lifelong consequences; if nothing else, he had the words Proud Boys” tattooed on his left arm. The defendant is emphatic, however, that he left the Proud Boys in 2019 and the Government’s effort to connect him to the group thereafter is based upon nothing more than conjecture, suspicion, and innuendo and ought to be rejected by this Court. 1

And when disavowing the import of December calls with Tarrio and Gavin McInnes, DeCarlo doesn’t name McInnes.

1 The Government notes that the defendant stated he was “in contact” with Enrique Tarrio, the head of the Proud Boys, in December 2019. The Government has no idea whether the two men actually spoke and if so, what was the topic of conversation. Similarly, the prosecution states that based upon data collected from his cellular phone, Mr. DeCarlo “called” another Proud Boy leader the day that the former President announced that he would be speaking on the Mall on January 6, 2021. Again, the Government does not state if the data reveals the two men actually spoke and the prosecution makes no representation as to the nature of any such conversation. [my emphasis]

Here’s how DOJ described those claimed and real contacts.

DeCarlo flew from Texas and met with Ochs in Virginia, where they shared a hotel room. That night, DeCarlo posted a 15 minute “selfie” video stream titled BlackVill’d: Twas the Night Before Revolution!!! to the Murder the Media/ThunderdomeTV Facebook page. DeCarlo said he spoke to “Enrique,” “who isn’t even allowed in D.C.,” referring to Proud Boys leader Enrique Tarrio, who had been arrested the day before and ordered to stay out of Washington, D.C. 3 DeCarlo stated that they would be getting a “nice early interview” with Enrique the next day. He also said that he had “a lot of shit planned for tomorrow.”

[snip]

Evidence recovered from DeCarlo’s phone indicates that, on December 19, 2020, the same day that then-President Trump announced plans for a “wild” rally in Washington, D.C., DeCarlo called Gavin McInness, the founder of the Proud Boys.

There’s a lot unsaid here, and it goes further than DOJ’s choice not to name Donohoe and DeCarlo’s choice not to name McInnes. It may suggest a factionalism in the Proud Boys that has since grown more acute.

Remember, too, that after doing the mandatory FBI interview with Ochs, the government chose not to do one with DeCarlo. So on October 4, DeCarlo went and did one with the January 6 Committee instead (and is trying to claim credit for that).

October 4, 2022, the defendant participated in a virtual interview with staff members of the House Select Committee for several hours. Mr. DeCarlo gave them a narrative of the events that led to his presence at the Capitol on January 6, 2021 and responded to the Committee’s questions. He also voluntarily provided them with access to the contents of his electronic devices.

Again, there’s a lot that has been said and left unsaid.


Elmer Stewart Rhodes Found Guilty of Seditious Conspiracy

The verdicts are starting to come in on the Oath Keepers verdicts. The topline verdict: the jury found Elmer Stewart Rhodes and Kelly Meggs guilty on the seditious conspiracy count. The other three defendants — Ken Harrelson, Jessica Watkins, and Thomas Caldwell — were found not guilty on that charge.

All five defendants were found guilty of some kind of obstruction, though not always as part of a conspiracy.

Here’s a thread with the verdicts from the superb Brandi Buchman.

Here’s a table of the verdicts from Jordan Fischer.


How Richard Barnett Could Delay Resourcing of the Trump Investigation

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

Copyright © 2022 emptywheel. All rights reserved.
Originally Posted @ https://www.emptywheel.net/january-6-insurrection/