Ethan Nordean Complains that He’s Not Being Treated as Badly as a Muslim Accused-Terrorist Mastermind

Ethan Nordean and Joe Biggs just argued they should be released pre-trial because — uniquely among 600 January 6 defendants (or even the subset of around 70 who are detained pre-trial) — they can’t prepare for trial unless they’re at home with access to electronic devices to work with their attorneys.

That was one of the “new” things Nordean attorney Nick Smith and Biggs’ attorney John Hull raised to argue they should be released (Nordean also raised the $1M bail his dad was willing to point up and the reverse panopticon fortress in which Nordean wanted to wait out trial with advance warning of pretrial service officer approach).

Ultimately, the entire hearing was problematic because Nordean’s lawyer, Nick Smith, largely succeeded in treating this as an original bail determination, rather than a reopening that would require new information. He succeeded — probably not without cause — in suggesting that DOJ hadn’t turned over a video he and Biggs claimed, fairly ridiculously, would prove they had no intent to assault the Capitol (he argued they intended to “go back” to the Ellipse when one of the most damning things about the Proud Boy actions that day is they never really gave heed to the rally that brought thousands of other people to DC).

But Judge Tim Kelly, though he was furious with Nordean for suggesting that he — a Trump appointee — was treating Nordean differently because of politics, nevertheless allowed both sides to treat this not as an motion to reopen, but as something else, meaning both kept throwing out new information. That led the government to provide information they would have presented if this were a bail determination.

And then they got into a fight over how much of an Eddie Block video each side has, or should have, all while arguing that if Kelly had it all he would liberate the masterminds of the January 6 attack.

Smith and Hull also argued that their clients should be treated like Russell Taylor even though Taylor never entered the Capitol and, in so arguing, ignored the DC Circuit ruling that said everyone should be treated individually.

Ultimately, though, Smith tried to resuscitate an argument that, because after he was arrested, the Northwest Proud Boys nominally replaced him as leader, it’s proof he couldn’t be dangerous going forward, in spite of the fact that Telegram chats Nordean himself submitted showed that everyone treated Nordean as a leader. And then Hull got up and admitted that both Biggs and Nordean were great leaders.

Yes they were.

There are — far bigger — problems here. Procedurally, this should have been focused on only new news. That’s not what happened — both sides were arguing as if this were a new detention dispute. Judge Kelly needs to bracket off debate about new news, especially if, as the government claims, Hull relied on information he had during the initial dispute (though given McCullough’s past sloppiness, I don’t trust him on this point either).

There are discovery disputes that Judge Kelly needs to put an end to right away — and needs to force DOJ on the record for the entire government.

There are other issues I’ll get into in a follow up; but a key point is Smith’s claim that poor white Ethan Nordean is being treated unfairly as compared to others. Smith argued that the one way the public could now that politics weren’t involved would be for the same standard to be applied.

One way public knows politics not involved is same standard applied.

Trump appointee Tim Kelly nearly lost his patience by the insinuation that poor Ethan Nordean was being treated unfairly for being a right-wing white man.

But maybe Kelly should take him up on that.

After all, the standard for Muslim men who orchestrated terrorist attacks like the one Nordean did is far harsher than what he has been subjected to. Ethan Nordean says he’s suffering from unequal treatment.

He’s right.

But only because we don’t subject white men who try to prevent the peaceful transfer of power like we would Muslim men.

He wants to be treated equally, like Muslim men accused of disrupting democracy, I can only assume. But that is unlikely to get him released pre-trial, nor should it.

At one point, Nick Smith — presumably intending to complain that his client wasn’t treated like some other group of people who didn’t apparently mastermind an attack on the US — suggested Nordean’s treatment raised Equal Protection issues.

Smith: One way public knows politics not involved is same standard applied.

He makes a great argument that Ethan Nordean should be treated like any other terrorist leader. But that would result in harsher conditions, not lighter ones.

Felipe Marquez’ Plugged-In Misdemeanor Guilty Plea

Seven January 6 defendants are known to have pled guilty on Friday:

  • (Reportedly, though it hasn’t been docketed yet) Terry Brown, the last of a group of people arrested in the Capitol Visitor’s Center the day of the riot to plead out
  • Brandon Harrison and Douglas Wangler, who traveled to DC from Illinois together and, after Trump’s rally, walked to the Capitol and entered the East door after the Oath Keepers had already done so; they saw a pile of wood on the floor when they entered
  • Brandon and Stephanie Miller, an Ohio couple who bragged about witnessing history on Facebook
  • Cleveland Meredith Jr, who showed up — armed, but late — to insurrection but made credible threats against Nancy Pelosi (and did something else that remains sealed)
  • Felipe Marquez, who drove his Tesla Model 3 from Miami and claimed while inside the Capitol that, “we only broke some windows”

The Meredith plea — the only one that wasn’t a misdemeanor trespassing plea — was pretty interesting because his prosecutors still haven’t revealed the substance of some sealed filings that will be taken into consideration at sentencing. Plus, Judge Amy Berman Jackson, who was threatened by Roger Stone and some Proud Boys two years before they teamed up to set off an attack on the Capitol, seemed unimpressed with Meredith’s claims that his threats against Pelosi weren’t all that serious.

But the Marquez plea may be more interesting over time. At the very least, that’s because he may mark a decision by DOJ to let edge obstruction defendants plead down to 18 USC 1752, the more serious of the two misdemeanor trespassing charges.

As I’ve laid out repeatedly, DOJ has used 18 USC 1512(c)(2), part of the crime of obstruction, to charge those who allegedly expressed the clear intent to prevent the vote certification with a felony. Upwards of 200 people, total, have been charged with obstruction, including Marquez. But among those charged with obstruction, there’s a great range of actions taken on January 6. Those charged include those who participated in a conspiracy — like Graydon Young and Josiah Colt, Jacob Chansley, who left ominous comments for Mike Pence on his dais seat and blew off repeated orders to vacate the Senate Chamber, and Paul Hodgkins, who brought his Trump flag to the Senate floor but left when the cops instructed him to.

I laid out here how Hodgkins, after he was the first to plead guilty, was sentenced to 8 months in prison after getting a three level enhancement for significantly obstructing the vote certification. But since that happened, at least ten different defendants have challenged this application of obstruction, posing difficult decisions for a number of judges.

Indeed, in the last several days, a number of defendants charged with obstruction have explicitly waived Speedy Trial rights to await the outcome of these challenges. That’s going to create a backlog in the already enormous logjam of January 6 defendants.

So I wonder whether DOJ will begin let the edge 1512 cases plead down to 1752. Particularly given judges’ apparent willingness to jail the misdemeanor defendants, for defendants not given a “significant obstruction” enhancement like Hodgkins got, the sentencing guideline is not that different, with up to a year available under 1752 (and probation after that), versus a range of 8 to 14 months on obstruction (that in reality might be closer to 3 to 8 months). The primary (but nevertheless significant) difference would be the felony conviction.

To be clear, Marquez is not the first to plead down like this. Eliel Rosa pled to the less serious trespass charge, 40 USC 5104 after being charged with obstruction, but there may have been evidentiary reasons DOJ agreed to do that, and as an immigrant from Brazil, he risks deportation after his sentence in any case. Karl Dresch was charged with obstruction but pled to 5104 after serving six months in pre-trial confinement. Kevin Cordon, who was charged with obstruction but pled guilty at the same time as his brother — who was charged only with trespassing — pled to 1752 instead of obstruction, just like Marquez did.

In other words, in cases where there are other circumstances that make such a plea worthwhile to DOJ, they’re certainly willing to consider it.

Still, it’s possible that Marquez represents a shift on DOJ’s part to do that for more defendants, as part of an effort to avoid a big backlog pending the review of the 1512 charge.

Or, maybe not.

There were several other details of Marquez’ plea hearing of interest. The hearing started by talking about some kind of pretrial violation (possibly some kind of non-arrest run-in with law enforcement), which led to two new conditions being added to Marquez’s release, a mental health evaluation and a specific requirement to alert the government of any contact with law enforcement. That’s not how plea hearings usually start, but AUSA Jeffrey Nestler reaffirmed that DOJ wanted to go forward anyway. Judge Rudolph Contreras even asked whether the request for mental health evaluation raised questions about Marquez’ competency to plead guilty, though neither his attorney, Cara Halverson, nor Nestler, had any concerns about that.

Nestler, by the way, is one of the key prosecutors on the omnibus Oath Keeper case, and ably defended DOJ’s application of obstruction in that case in a hearing on Wednesday. Aside from that large group and cooperating Oath Keeper witness Caleb Berry, the only other January 6 case, besides Marquez’, that he is prosecuting is that of Guy Reffitt, who has ties to the 3%ers.

In addition to the oddities in Marquez’ plea hearing, there’s something not in his plea agreement that is standard boilerplate for all the plea agreements thus far: a cooperation paragraph. That paragraph is not a full cooperation agreement; rather, it simply requires the defendant to agree to be debriefed by the FBI. Here’s how it appears in Cordon’s plea agreement down from obstruction to 1752.

Your client agrees to allow law enforcement agents to review any social media accounts operated by your client for statements and postings in and around January 6, 2021, and conduct an interview of your client regarding the events in and around January 6, 2021 prior to sentencing.

Its absence suggests that Marquez has already been debriefed. Indeed, an April motion to continue the case described that the evidence against Marquez included, “social media data, cell phone extraction data, as well as custodial interview files,” suggesting he was interviewed on his arrest.

That Marquez may have already provided truthful information is of interest because he spent part of the riot in Jeff Merkley’s office. His statement of offense describes his actions there obliquely:

While inside the Capitol, Marquez entered the private “hideaway” office of Senator Merkley where he sat at a conference table with other rioters.

His arrest affidavit describes a video Marquez posted to Snapchat from his time there.

3:45 to 4:11 – This clip is from inside a conference room.2 Several people are seated and standing around a mahogany table. Some people say, “No stealing; don’t steal anything.” At 4:02, a hand is visible, holding a light-tan colored vape pen similar to the one MARQUEZ was holding in the car in the clip from 0:54 to 1:54. At 4:04, someone pushes over a table lamp and says, “Why would I want to steal this bullshit.”

4:11 to 4:20 (end) – In this clip MARQUEZ turns the camera lens to film himself. He is wearing a red “KEEP AMERICA GREAT” hat and has a yellow gaiter around his neck, similar to what he was wearing in the earlier clip from 0:54 to 1:54. MARQUEZ appears to still be indoors, with a distinctive blue piece of artwork – the same as seen in Senator Merkley’s hideaway office – on the wall behind him. This is a screenshot of MARQUEZ’s face from the video:

2 Based upon conversations with representatives of the United States Capitol Police, the conference room in which MARQUEZ is present appears to be Senate room S140, the private “hideaway” office of Senator Merkley within the U.S. Capitol. The artwork visible on the walls of the conference room in MARQUEZ’s Snapchat video is also visible on a video that Senator Merkley posted to Twitter on January 6, 2021, at 11:36 pm, documenting some of the damage to his office.

Still, none of these descriptions reveals what Marquez might have seen (and subsequently shared) while in Merkley’s office.

Presumably partly because there’s little to no security footage of what went down, the investigation into what happened in Merkley’s office is one of the most interesting subplots of the investigation. There have been a number of trespassers who seem to have been arrested just to get their footage of what happened.  There’s a defendant who has never been charged who was, nevertheless, given discovery on the laptop that got stolen from Merkley’s office. And in the last few weeks, Brandon Fellows (who like Marquez has been charged with just obstruction but spent time in Merkley’s office) got a CIPA notice, meaning the government wants to use classified evidence against him.

In short, we simply don’t know. There’s something interesting about this plea. But it’s unclear what that is.

The Eight Month Investigation into the January 6 Investigation Didn’t End in March

I was going to hold off responding to this Spencer Ackerman op-ed in the NYT — which attempts to superimpose conclusions of his book onto ensuing events that have disproven some of his predictions — until I finish a half-written review of the book itself (tl;dr: it’s a great history of the war on terror, but entirely unpersuasive as to its main argument and especially sloppy when it attempts to discuss politics). But I got a bit fed up by the way he claims to be speaking about the response to January 6 with an op-ed that doesn’t incorporate anything more recent than March.

“Eight months later, there is no political response to the insurrection at all,” — Spencer claims, linking an article dated March 26 reporting, “Dem Hearings Bend Over Backward to Ignore GOP Complicity in Capitol Riot –“only a security response aimed at its foot soldiers.” That’s his most recent reference in the entire op-ed, as demonstrated by the links he uses:

Elissa Slotkin: 2/1/21

Somali plot: 1/25/19

Somali plot: 10/14/16

Mike Flynn: 7/9/16

Trump on terrorism: 8/15/16

Trump’s birtherism: 9/19/15

How the January 6 insurrectionists saw themselves: 1/5/21

Veterans: 2/4/21

Non-veteran Mariposa Castro declaring war: 1/21/21

Describing the Jan 6 investigation based on what Michael Sherwin’s comments about sedition, while ignoring what he said about holding everyone accountable: 1/13/21

[Sherwin’s resignation: 3/23/21]

Trump sent them: 1/9/21

Opting against 14A: 2/3/21

Dems on empowering the FBI: 2/5/21

DOJ seeking new domestic terror powers: 2/26/21

Slotkin again on monitoring domestic extremists: 3/23/21

“I am not a terrorist:” 1/13/21

Spencer makes no mention of any of the developments you’d look at to understand how the Biden Administration was responding to January 6, including:

  • A new domestic terrorism response that includes social media monitoring of the sort that might have prevented the attack on the Capitol, but few of the other things Spencer and others have never stopped predicting since January 6.
  • A discussion of the actions of the January 6 Select Committee, on which committee Elissa Slotkin (the Democrat Spencer quoted twice and on whom his book focuses) doesn’t sit. The committee has provided a way around the need to placate Republicans trying to avoid angering Trump, to say nothing of committees (like the House Oversight Committee) packed with key figures in the events of January 6. The committee has already moved to obtain the records of the people that Spencer claims have escaped accountability.
  • A description of Merrick Garland’s repeated comments, starting in his February 22 confirmation hearing and continuing since, that DOJ would go where the evidence leads, including to those who incited it. Garland’s DOJ has also found important ways to avoid sheltering Mo Brooks (and by association all other people who were Federal employees the day of the riot, as Trump was), and to waive executive privilege to allow multiple investigations into Trump’s actions to proceed.
  • How DOJ under Merrick Garland and Lisa Monaco has approached the January 6 investigation, notably with its use of the unpoliticized obstruction statute to charge felonies rather than (thus far at least) sedition, the use of interlocking conspiracies that have already started incorporating some organizers and which could easily be used with Trump and his flunkies, and the possibility of terrorism enhancements that would be decided at sentencing, by judges, rather than by categorical application at the start of investigation.

There are definitely ways that the two decade war on terror played a big role on January 6.

More important than the 22 veterans charged by early February is which figures in the organizing conspiracies applied their military experience to ensuring the success of the operation. Key among those is former Staff Sargeant Joe Biggs, who served in both Iraq and Afghanistan before he went on to play a key propaganda role in the 2016 election; as I’ve described, Biggs was at the head of both major fronts (East Side, West Side) of the attack, and his network incorporates the key organizers of the larger event. Charles Donohoe, Dominic Pezzola, Gabriel Garcia, Jessica Watkins, and Joshua James are other veterans who allegedly turned their war on terror training to play key roles leading an attack on the Capitol. The second front of the attack on the Capitol that Biggs seemed to have anticipated was opened — either coincidentally, or not — by a bunch of Marines, including one on active duty.

If you’re going to talk about the import of the war on terror on January 6, you also have to talk about the mental scars that veterans have brought back. That was made spectacularly clear by Landon Copeland’s PTSD-driven meltdown in a detention hearing. But even Jacob Chansley’s mental illness has ties to his service. These two are not alone among the men and women whose service scars led them to embrace the false promises Donald Trump was offering.

In his book, Spencer rightly complains about the Wanted Dead or Alive rhetoric motivating the War on Terror. He also complains about an, “obsession with the baroque, fragmentary details of what became #Russiagate,” (mistaking the equally baroque counter-propaganda hashtag for those focusing in varying degrees of obsessiveness on the investigation itself) that nevertheless ended with Bill Barr corruptly intervening to protect Trump. But Spencer apparently feels the best way to deal with something else — a plodding, but ambitious, attempt to conduct a law enforcement investigation from the attack itself to its kingpins — is to largely ignore it even while claiming to speak for it.

The January 6 investigation, even in conjunction with the Select Committee, will not fix all the problems with the War on Terror. The two together may not hold the most powerful culprits for January 6 accountable — but that’s not for lack of ambition to do just that. But — in large part because this is an investigation of mostly-white people, which goes to the core of how America’s racism and other demons almost brought down its democracy and still could — it looks more like how the US should have responded to the 9/11 attack and not the caricature that Spencer arrives at by ignoring the last six months.

Following 600 cases as DOJ meticulously obtains the camera footage to see how Alex Jones lured unwitting participants to a second front or attempts to document whether key militia members made an attempt on Nancy Pelosi’s life is not sexy. But it’s what Spencer claims we should have done in response to 9/11.

DOJ Gets Closer to Arguing Terrorizing Congress Amounts to Obstruction

In August, I wrote about how one of Brady Knowlton’s lawyers got up to claim that because there could be no miscarriage of justice in the January 6 vote certification, his client could not have obstructed it under the statute DOJ is using to charge the more serious January 6  perpetrators, 18 USC 1512. I noted that the lawyer, Brent Mayr, was actually suggesting that Joe Biden and the 81 million voters who voted for him would suffer no injury if Biden’s vote certification had never taken place.

Up until that moment, the hearing before Judge Randolph Moss was an admittedly close question. Knowlton’s other lawyer made a robust argument that vote certifications weren’t the kind of official proceeding that could be obstructed. And AUSA John Pearse focused on the word “corruptly” distinguishing other First Amendment protected activities, such as those who protested the Brett Kavanaugh hearing, from those who stormed the Capitol.

Something similar just happened in the Oath Keeper case. After David Fischer made the same argument that Knowlton’s lawyers made — that this was not an official proceeding, to much skepticism from Judge Amit Mehta — Carmen Hernandez got up to argue that her client could not have known that he would risk a 20 year sentence for forcing his way into the Capitol as part of a stack.

Before I explain what happened next, four details are worth noting. First, Hernandez is, in my opinion, a smart and passionate lawyer. Her briefs on this case (surely helped by other public defenders, as they have so many clients facing this charge) were probably the most cogent I’ve read, and I’ve read virtually all of these challenges. That said, Hernandez submitted a 30-page brief, this morning which (Judge Mehta made a point of telling her) he had read by the time of the 2PM hearing. Also, she interrupted Mehta several times. Those things really pissed him off. Finally, of all the Oath Keepers, I think Donovan Crowl may have the best argument that he did not willfully enter into a conspiracy and did not intend to interrupt the vote count. That is, I think Crowl might beat the obstruction charge Hernandez was challenging in court, even if his co-defendants might not, but that’s an evidentiary issue, not a constitutional one.

Still, it was a robust argument. Hernandez made as good a First Amendment argument as has been made about this, that this was just about influence Congress. “Influencing Congress, going to Congress and shouting and making a fool of yourself? That’s what Americans do.”

Mehta challenged prosecutor Jeffrey Nestler why under Yates v. US, in which SCOTUS ruled that destroying fish to avoid prosecution for catching undersized fish was not tantamount to obstruction for a statute envisioning the destruction of documents, this kind of obstruction is not obviously obstruction.

Nestler also made a point that hasn’t been made enough by DOJ — one I noted in my post on Knowlton’s challenge. To argue that the rioters obstructed justice, rather than Trump or those who orchestrated the mobs, you really need to argue that it’s a kind of witness tampering, an attempt to terrify members of Congress not just to flee, but also to vote against the lawful winner of the election. There is abundant evidence that not only occurred on the day of the vote certification, but that the terror of the event led some Republicans to vote against impeachment. This is a classic case of witness tampering, a case where Congress was held hostage in an attempt to terrify them to not do their jobs. And it nearly succeeded. And the after effects remain.

So Nestler argued that the object of the conspiracy was to scare Congress to stop the proceedings. Judge Mehta rightly responded, “Where do I look in the indictment for that?”

But like the Moss hearing, this one ended up with a hypothetical. If someone burst into his courtroom with the specific intention of preventing these proceedings from taking place, Judge Mehta asked Hernandez, would that amount to obstruction. Yes, she responded, resorting immediately to the far weaker argument that Fischer had tried to make, that the vote certification is not an official proceeding.

That may ultimately be the hook on which Mehta starts to unravel this question.

Whatever happens, that will not be the end of this question, because until DOJ makes a much stronger argument, both about how the terror was designed to function here and what distinguishes not only January 6 defendants from Kavanaugh protestors, but also the January 6 obstruction defendants from those charged with parading, judges will continue to face this difficult question. And at some point, a defense attorney will avoid providing the judge the obvious way to answer the question.

How Jacob Chansley Proved Patrick LeDuc Right

I have written repeatedly about how charging January 6 rioters with obstruction provides DOJ a really elegant way of holding people accountable, while providing the flexibility to distinguish between different levels of seriousness (until such time as some judge overturns this application of 18 USC 1512).

A review of what has happened with five men who’ve pled guilty to obstruction so far illustrates not only the range of sentences possible from the same charge, but also the factors DOJ is using to distinguish defendants based on their actions on January 6.

Before I lay out what has happened, first a word of explanation: To get to sentences, the two sides in a plea deal first agree on a  “Estimated Offense Level,” then (if someone pleads guilty), knocks a few points (usually 3) off for pleading. That gives a number that gets plugged into the Sentencing Table to figure out the guidelines sentence, in months, based on whether someone has a criminal record.

So in what follows, I’m showing the initial calculation (before the 3 points taken off for pleading guilty), and then showing what the plea agreement says the guidelines will be. In the table, I’ve marked the four different guidelines calculated in the five cases I discuss here (Scott Fairlamb has some criminal background so may get bumped up a level, but the others have no criminal background).

Paul Hodgkins, who traveled alone to bring his Trump flag to the floor of the Senate, pled guilty to obstruction, and went into sentencing facing a 15 to 21-month sentence (and ultimately got an 8-month sentence).

The number you’ll see Patrick LeDuc mention — 14 — in an email below is obtained by knocking 3 points off 17. And the 15-21 months is taken by checking the “0” criminal record column for an offense level of 14.

Scott Fairlamb. who didn’t plan for insurrection but while there punched a cop, pled guilty to obstruction and assault and goes into sentencing facing 41 to 51 months. DOJ has reserved the right to invoke a terrorist enhancement (including in his plea colloquy) that, if Judge Lamberth agreed, could result in a far stiffer sentence, up to 10 years.

Josiah Colt, who planned his trip to DC with two others, came to DC armed, and rappelled onto the Senate floor, pled guilty to obstruction, but faces (before getting credit for cooperation) 51 to 63 months.

Graydon Young, who planned in advance with a militia, entered the Capitol as part of a Stack, and tried to destroy evidence, pled guilty to obstruction, but faces (before getting credit for cooperation) 63 to 78 months. The difference in guideline between him and Colt is not that Colt’s “militia” was disorganized (a couple of guys he met online), but rather that Young tried to destroy evidence. Otherwise, they’re the same.

These four men all pled guilty to the same crime, obstruction of the vote count, but all faced and are facing dramatically different sentences based on the context of what they had done. And for those who deliberately used violence in pursuit of obstruction could face longer sentences, up to 20 years, which happens to be the same sentence that some sedition-related charges carry, but (again, unless judges overturn this application of obstruction) would be far easier to prove to a jury.

Somewhere around 200 January 6 defendants have been charged with obstruction, but among those 200, there’s a great range of actions they took in their alleged effort to prevent the peaceful transfer of power, including:

  • How obstructive their actions were (a 3 point enhancement)
  • Whether they used violence or threats thereof (an 8 point enhancement)
  • Whether they planned in advance to obstruct the vote count (a 2 point enhancement)
  • Whether they engaged in further obstruction (a further 2 point enhancement)
  • Whether someone did or abetted more than $1,000 in damage to the Capitol (which will likely get a terrorism enhancement)

And this is an issue that will play out in Paul Hodgkins’ effort to appeal his sentence.

According to claims made in court, Hodgkins decided to admit his guilt early on, which led to him being the first person to plead guilty to that obstruction charge. His lawyer at the time was a guy named Patrick LeDuc, a JAG Reserve Officer who learned after he started representing Hodgkins he had to deploy to the Middle East. Immediately after he was sentenced to a below guidelines sentence, per representations a new lawyer has now made, he asked if he could appeal (Friday, Judge Randolph Moss granted his request to extend his time to appeal). What LeDuc said in response will likely be the matter of a legal fight. We do know that on August 21, LeDuc told Hodgkins, “You have no right to appeal the sentenced [sic] pursuant to our plea agreement,” which suggests that at that point, LeDuc understood Hodgkins’ complaint to be with the sentence, not the competence of his representation.

But we know, for sure, that LeDuc told Carolyn Stewart, Hodgkins’ new lawyer, that other January 6 defendants who made it to the Senate floor were going to be charged with more enhancements to the base obstruction charge than Hodgkins.

Here is what you should know. Capitol Hill Defendants found in the Senate are all being offered a felony (same as Paul)(some more than one felony) with an 8 level enhancement (you might consider obtaining a Federal Sentencing manual for your reference). I was able to get the DOJ to agree to only a 3 level enhancement. You ought to know that my plea deal was adopted at the highest level to include the AG of the United States. That meant that my client was at level 14 instead vice level 19. Other Capitol Hill defendant [sic] are looking at 46 months low end. The AG instructed AUSA Sedky to argue for mid range – 18 months. And you would suggest that is evidenced [sic] of malpractice. I would argue that an attorney of 6 months accusing an attorney with over 250 jury trials at both the State and Federal level, and with 30 years of experience is unprofessional on your part.

If you think the plea deal was insufficient, then you ought to know that the United States makes offers with a a [sic] take it or leave it attitude. Everything in the plea deal was boilerplate with one exception that did not bother me. That was a provision that required me to agree that level 14 was good to go and that I would not object to the PSR. I was allowed to argue for a variance under 3553, which was my strategy all along, and the judge did indeed vary 3 levels into ZONE B. Ms. Sedky is a very experienced prosecutor, and the plea deal was arranged over many lengthy phone calls over a period of 3 months. Being the first felony case to be resolved was something that DOJ had to concur in because my case was going to set the precedent for every one to follow and the stakes were high for both sides.

My strategy paid off to Paul’s benefit. No other Federal defendant who is pleading to a felony will get a sentence better than Paul (nearly 250 others)  We had a very good judge who understood the issues, and the sentence was a fair reflection of the fats.

LeDuc is obviously furious at being called incompetent (and writing from Qatar where he is also juggling a huge influx of refugees from Afghanistan). But in this passage he describes a lot of the background to the plea deals that was evident to those  of us following closely, but for which there had been only off the record confirmation.

I think things may intervene that change DOJ’s plans (particularly if any of the challenges to 1512 are successful). But LeDuc describes that the plan when he was involved was to give Hodgkins a good deal and then use that as the precedent for everyone else. With other judges an 8-month sentence may not actually be the floor, but it is the base level treatment DOJ thinks it will adopt for those charged with felonies.

We’ve seen a few people plead down from felonies to 18 USC 1752, but thus far those people are looking at close to the same sentence as Hodgkins, 6 months, a difference of 2 months and the onerous felony conviction.

One thing LeDuc did say is that other defendants who made it to the Senate floor will face 8 level enhancements. Again, I’m virtually certain there will be others who made it to the Senate that will avoid this treatment.

But yesterday, with Jacob Chansley’s sentence, LeDuc was proven correct: another defendant, with whom Hodgkins stormed the Senate floor, got an 8 point enhancement for doing so.

.

Note that, as with Fairlamb, the government reserved the right to ask for a terrorist enhancement, though I did not hear AUSA Kimberly Paschall make a record of that in yesterday’s plea hearing, as AUSA Leslie Goemaat did in Fairlamb’s plea hearing.

To be sure, Chansley’s Statement of Offense includes multiple things that weren’t present with Hodgkins (nor will they be present for some others who made it to the Senate floor). According to his sworn Statement of Offense, Chansley defied orders from Officer KR four different times, and made public and written comments while in the Senate that might be deemed a threat, including to Mike Pence personally.

11. At approximately 2:16 p.m., the defendant and other rioters ascended the stairs to the second floor to the Senate side of the U.S. Capitol building. In a clearing on the second floor, the defendant and other rioters were met by a line of U.S. Capitol Police officers, instructing them to peacefully leave the building. The defendant challenged U.S. Capitol Police Officer K.R. to let them pass, ultimately using his bullhorn to rile up the crowd and demand that lawmakers be brought out.

12. Instead of obeying the instructions of the U.S. Capitol Police to leave the building, the defendant traversed another staircase to the third floor of the Senate side of the U.S. Capitol building. At approximately 2:52 p.m., the defendant entered the Gallery of the Senate alone. The defendant then proceeded to scream obscenities in the Gallery, while other rioters flooded the Chamber below.

13. The defendant then left the Gallery and proceeded down a staircase in an attempt to gain entry to the Senate floor. There, the defendant once again encountered Officer K.R., who once again asked him to leave the building. The defendant insisted that others were already on the Senate floor and he was going to join them. Officer K.R. then followed the defendant on to the Senate floor.

14. The defendant then scaled the Senate dais, taking the seat that Vice President Mike Pence had occupied less than an hour before. The defendant proceeded to take pictures of himself on the dais and refused to vacate the seat when Officer K.R., the lone law enforcement officer in the Chamber at the time, asked him to do so. Instead, the defendant stated that “Mike Pence is a fucking traitor” and wrote a note on available paper on the dais, stating “It’s Only A Matter of Time. Justice Is Coming!”

15. After Officer K.R. again asked the defendant to vacate the seat, the defendant remained, calling other rioters up to the dais and leading them in an incantation over his bullhorn, which included giving thanks for the opportunity “to allow us to send a message to all the tyrants, the communists, and the globalists, that this is our nation, not theirs, that we will not allow America, the American way of the United States of America to go down.” The defendant went on to say “[t]hank you for allowing the United States to be reborn. Thank you for allowing us to get rid of the communists, the globalists, and the traitors within our government.”

16. Finally, at approximately 3:09 p.m., other law enforcement officers arrived to support Officer K.R., and cleared the defendant and other rioters from the Chamber. [my emphasis]

While it’s a puzzle to compare who posed more of a threat, Scott Fairlamb or Jacob Chansley, DOJ is treating both as people who deliberately tried to prevent the vote count by using violence or threats thereof. And because of that, DOJ has gotten their attorneys to agree, they should face a sentence more than twice as long as Hodgkins faced.

And that’s precisely what Patrick LeDuc told Hodgkins’ new lawyer would happen.

Update: I’ve corrected that these are the only five men who’ve pled guilty to obstruction. Some other Oath Keepers also did.

The Network Effect: The 3%ers Incitement, Terrorist Enhancements, and California’s Anti-Maskers

At a hearing for Danny Rodriguez on August 31, Judge Amy Berman Jackson asked, as she had in the last hearing, why Rodriguez wasn’t included in the indictment with a bunch of other men who, like him, are accused of assaulting Michael Fanone, a case over which she is also presiding. As also happened in that last hearing, ABJ asked about a plea offer. In July, AUSA Kimberly Paschall said Rodriguez might not be offered a plea deal at all. On Tuesday, Paschall said he would only be offered a plea deal if he were willing to be debriefed first, prosecutor’s jargon meaning that someone will only be permitted to plead guilty if he cooperates against others. Paschall also said that any plea would necessarily include the 18 USC 1361 charge against Rodriguez for breaking a window because it carries a terrorism enhancement. When prompted by Rodriguez’ attorney (who sourced her intelligence to Twitter), Paschall admitted there may be a superseding indictment against Rodriguez, widely assumed to be some kind of conspiracy indictment with other extremists from Southern California.

As HuffPo reported in February (relying heavily on the work of online researchers including Deep State Dogs), before his arrest Rodriguez was a well-known participant in a group of Southern California anti-maskers, one who had been reported for assault even before boarding a plane to DC in January.

Rodriguez, who goes by “Danny” and “DJ,” is well known among Trump supporters in the Los Angeles area as a superfan of the former president. Multiple news outlets have featured him in their coverage of the local pro-Trump movement in recent years, in articles that included his name and photo. He regularly attended the weekly Trump rallies in Beverly Hills last year. He was recognizable there by his dark-rimmed glasses and the many distinctive pins on his hat, which has a big GOP elephant symbol on the brim.

Rodriguez coordinated with other members of this network — including Gina Bisignano — while at the riot.

What Paschall basically admitted in Tuesday’s hearing is that DOJ intends to hold Rodriguez accountable as a terrorist, possibly in conjunction with his network of right wing operatives. But for all the reports (on Twitter) about network members flipping on each other, the network of extremists still manages to sow violence in front of the LAPD with impunity.

There are other public signs, however, that DOJ is going after this network. In June, DOJ rolled out a conspiracy indictment against six Three Percenters, including Alan Hostetter and Russell Taylor. In spite of explicit threats of execution detailed in it, it doesn’t include a crime of terrorism like the one charged against Rodriguez. While the Three Percenter ties, the plans to come to DC armed, and the defendants’ role in a January 5 Stop the Steal rally attracted a lot of attention, the import of a Telegram channel described in it got less focus.

On January 1, 2021, [Russ] TAYLOR created a Telegram chat called “The California Patriots-DC Brigade” (the “DC Brigade”) and invited other individuals to join. TAYLOR, HOSTETTER, WARNER, KINNISON, MARTINEZ, and MELE all joined, along with more than 30 others.

In the “about” section that described the purpose of the DC Brigade group, TAYLOR wrote:

This group will serve as the Comms for able bodied individuals that are going to DC on Jan 6. Many of us have not met before and we are all ready and willing to fight. We will come together for this moment that we are called upon.

In a series of messages on January 1, 2021, TAYLOR further explained the purpose of the group. In one message, he explained: “This thread is exclusive to be utilized to organize a group of fighters to have each other’s backs and ensure that no one will trample on our rights. Also, if there is key intel that we need to be aware of tor [sic] possible threats.” He added: “I am assuming that you have some type of weaponry that you are bringing with you and plates as well.” TAYLOR also asked members to identify if they had previous law enforcement experience, military experience, or “special skills relevant to our endeavors,” as well as the planned date and time of their arrival in D.C.

There were 36 people in this thread and DOJ may have arrested just 4 before this conspiracy charge, leaving at least 26 others who participated in a channel about coming armed to the Capitol still out there.

In recent days (close to three months after the conspiracy indictment), DOJ has started arresting those participants. On August 26, for example, DOJ arrested Jeffrey Scott Brown on charges of assault, civil disorder, and trespassing based in part on him spraying an irritant at the police.

The government cited Brown’s participation in Taylor’s Telegram channel to substantiate pre-meditation for his violence.

During the course of the investigation into the events of January 6, 2021, law enforcement has identified communications that documented planning and coordination amongst individuals in advance of January 6, 2021. As detailed below, the investigation has established that JEFFREY SCOTT BROWN participated in a Telegram group chat on an encrypted messaging app in the days leading up to January 6. In the Telegram chat “about” section was the following description: “This group will serve as the Comms for able bodied individuals that are going to DC on Jan 6. Many of us have not met before and we are all ready and willing to fight. We will come together for this moment that we are called upon.”

One of the members of this chat was Telegram user “JB” (UID XXXXXX1832). On January 5, 2021, at approximately 6:30 a.m. PST, Telegram user “JB” posted a picture of himself with the caption “Boarding LAX.” LAX is the airport code for the Los Angeles International Airport.

Yesterday, another of the participants on Taylor’s Telegram channel, Ben Martin, was arrested for his sustained efforts to get and keep the North doors of the Capitol open.

Among the pictures of Martin included in his arrest affidavit at that North door are some also included in a detention memo for Matthew Klein that depict the Klein brothers, already charged with conspiracy for their efforts to open it.

Martin’s arrest warrant describes Facebook Messenger discussions Martin had with an RT who, like Russell Taylor, publicly called for violence in advance of the riot. That RT invited Martin to a Telegram channel that sounds (except for RT’s boasts about its size) just like The California Patriots-DC Brigade.

A search warrant of the MARTIN Facebook account identified by the tipster revealed that the account was registered as “benjamin.martin.90410.” A review of the account further revealed communications between MARTIN and a Facebook account associated with R.T. Based on a different investigation, R.T. is known to the FBI to have advocated for violence in the lead-up to January 6, organized others to travel to D.C. for January 6 (some of whom participated in the riot at the U.S. Capitol), and to have participated himself in the riot at the U.S. Capitol on January 6. MARTIN’s account contained communications occurring on January 3, 2021, between R.T. and MARTIN through Facebook Messenger in which MARTIN and R.T. discussed traveling to Washington D.C. for January 6, 2021. In the communications, R.T. invited MARTIN to join a Telegram chat for “a group of 200+ California patriots that are going to DC Jan 6,” which MARTIN accepted and joined. On January 6, 2021, MARTIN sent four messages to R.T. that stated, “we need to meet”, “I just spoke to Peggy Hall she said we need to meet”, and “I am in DC as we”, “well” [sic].

Consider what you have in this network:

  • Ties to two militias, the Three Percenters and the Proud Boys
  • Organization based in localized, violent anti-mask activism
  • A direct tie to one of two organized rallies on January 5
  • A Telegram channel tying a group of participants together
  • The use of blowhorns and radios during the riot to maximize impact
  • Taylor’s description of a plan, formulated at least by December 30, to “surround the capital,” followed by Simon’s sustained efforts to open a new front on the North side of it
  • Discussions in advance of executing traitors followed by an assault on Michael Fanone that caused a heart attack
  • By dint of Rodriguez’ damage to a window of the Capitol, a crime of terrorism that can (and Paschall is intent, will) carry a terrorism enhancement

At Tuesday’s hearing, Paschall didn’t seem sure whether they will end up charging Rodriguez in a conspiracy with some of the others (though she said DOJ would likely finalize their decision on that point by October 1). Certainly, it doesn’t seem like local law enforcement in LA is anything but an impediment.

But this network of extremists is a good place to look to understand how the various parts of the riot came together.

“This is not reverse RICO!” Shane Jenkins Gives Away John Pierce’s Game

John Pierce, the trial attorney who is attempting to represent up to 18 January 6 defendants while lying in a COVID ward, seems to have found three kinds of clients for himself (I’ve included a roster below). There are a bunch of Proud Boys and other militia members who might serve as a kind of firewall for Joe Biggs and Enrique Tarrio. There are a handful of people charged with trespassing who have said outlandish things in the past about January 6. And there are three defendants with criminal records accused of assaulting cops. Two of those three, Peter Schwartz and Shane Jenkins, (the other is James McGrew) had hearings today to figure out what to do with their defense attorney who already had too much on his plate before getting COVID.

The hearings didn’t provide much more clarity into what has happened with Pierce. The same unbarred, indicted associate, Ryan Marshall, whom Judge Amit Mehta ordered last week to find a member of the DC bar to show up today appeared, alone in the first hearing and with a Bankruptcy lawyer who is not a member of the DC bar for the second. Marshall revealed they were trying to get an outside attorney to sign a contract to help represent all these defendants. That attorney is not the bankruptcy lawyer though, who just offered to fill in when she heard about the troubles in the news. Mehta asked Marshall about Pierce’s partner, Bainbridge (with whom Marshall purportedly works), but Marshall said he had never met him.

Marshall did admit Pierce is very sick and had spent most of yesterday sleeping. He said Pierce expects to get out in a week, but that was based on Pierce’s own representation, not anything someone with medical expertise said. Marshall said Pierce is not (now?) on a ventilator.

But when it came time to ask what Schwartz wanted to do about this, he revealed Marshall hadn’t spoken to him all week. He claimed this was the first he heard about it. He reeled off a bunch of complaints — a spider bite, old contacts, poor medical care — but in spite of a long, long criminal record, didn’t seem to understand that’s what lawyers are for, to help air those complaints. Nor did he understand that he doesn’t have the uncontested ability to refuse to waive Speedy Trial, particularly not when the bozo lawyer he has chosen to represent him goes AWOL.

Things were a bit different with Shane Jenkins, for whom “Pierce” filed a notice of appearance from the hospital (Marshall explained a paralegal had done it on Pierce’s instructions). Plus, Marshall had at least spoken to Jenkins to reassure him it’s a good idea to hire Pierce even though he’s hospitalized.

After Judge Mehta decided it was prudent to leave Maria Jacobs, the public defender currently representing Jenkins, on the job until someone actually qualified to practice law in DC showed up, Jenkins had his say.

Like Schwartz, he insisted he won’t waive Speedy Trial (as with Schwartz, Mehta waived it for a few weeks). Like Schwartz, he complained about the discovery he had gotten.

But — particularly given Pierce’s earlier claims about wanting to do a Public Authority defense — the specific claims Jenkins made about discovery were genuinely enlightening (these are my live-tweets).

Several questions about discovery. I received cracked disc that no longer works. Edited videos that exclude very important information. If these were used before GJ, that’s deception.

Jenkins claims there was a murder being covered up by DOJ, or suppressed by DOJ. “I’d love to proceed to trial, the facts prove the truth, I look forward to DOJ laying facts on table, full discovery, not interested in waiving BRady. This is not reverse RICO.”

Jenkins apparently claims to believe that the videos of his alleged assaults were edited to hide a murder, apparently committed by the police, on the West Terrace of Capitol. He appears to be claiming that he was retaliating for that murder.

With Ryan Samsel (who wisely fired Pierce in late July), Samsel seemed to have made coached claims about who assaulted him in jail, something that has not yet been publicly confirmed, though the public and totally believable story blames the guards. It’s not surprising, though, that someone who is a trial attorney and not a defense attorney, would encourage his clients to make public claims accusing the government.

But what Jenkins did was interesting precisely because Pierce claimed, when he announced he was going to mount a Public Authority defense, that he needed all the video.

He’s going to get all the video. Every January 6 defendant will get it.

And none of it will show that cops committed a murder on the West Terrace.

But Jenkins at least suggested that he plans to defend himself against assaults clearly shown on video by claiming that the real videos show cops killing peaceful Trump supporters.


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

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

2. William Pepe: William Pepe is a Proud Boy charged in a conspiracy with Dominic Pezzola and Matthew Greene for breaching the initial lines of defense and, ultimately, the first broken window of the Capitol. Pepe was originally arrested on January 11, though is out on bail. Pierce joined Robert Jenkins on William Pepe’s defense team on March 25. By April, Pierce was planning on filing some non-frivolous motions (to sever his case from Pezzola, to move it out of DC, and to dismiss the obstruction count), but not much has happened since.

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

4. Stephanie Baez: On June 9, Pierce filed his appearance for Stephanie Baez. Pierce’s interest in Baez’ case makes a lot of sense. Baez, who was arrested on trespassing charges on June 4, seems to have treated the January 6 insurrection as an opportunity to shop for her own Proud Boy boyfriend. Plus, she’s attractive, unrepentant, and willing to claim there was no violence on January 6. Baez was formally charged with trespassing on August 4.

Victoria White: If I were prosecutors, I’d be taking a closer look at White to try to figure out why John Pierce decided to represent her (if it’s not already clear to them; given the timing, it may simply be because he believed he needed a few women defendants to tell the story he wants to tell). White was detained briefly on January 6 then released, and then arrested on April 8 on civil disorder and trespassing charges. At one point on January 6, she was filmed trying to dissuade other rioters from breaking windows, but then she was filmed close to and then in the Tunnel cheering on some of the worst assault. Pierce filed his notice of appearance in White’s case on June 10. On September 3, White told Judge Faruqui she didn’t want Pierce to represent her anymore.

Ryan Samsel: After consulting with Joe Biggs, Ryan Samsel kicked off the riot by approaching the first barriers and — with several other defendants — knocking over a female cop, giving her a concussion. He was arrested on January 30 and is still being held on his original complaint charging him with assault and civil disorder. He’s obviously a key piece to the investigation and for some time it appeared the government might have been trying to persuade him that the way to minimize his significant exposure (he has an extensive criminal record) would be to cooperate against people like Biggs. But then he was brutally assaulted in jail. Detainees have claimed a guard did it, and given that Samsel injured a cop, that wouldn’t be unheard of. But Samsel seemed to say in a recent hearing that the FBI had concluded it was another detainee. In any case, the assault set off a feeding frenzy among trial attorneys seeking to get a piece of what they imagine will be a huge lawsuit against BOP (as it should be if a guard really did assault him). Samsel is now focused on getting medical care for eye and arm injuries arising from the assault. And if a guard did do this, then it would be a key part of any story Pierce wanted to tell. After that feeding frenzy passed, Pierce filed an appearance on June 14, with Magistrate Judge Zia Faruqui releasing his prior counsel on June 25. Samsel is a perfect defendant for Pierce, though (like Rittenhouse), the man badly needs a serious defense attorney. Update: On July 27, Samsel informed Magistrate Judge Zia Faruqui that he would be retaining new counsel.

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

Alan Hostetter: John Pierce filed as Hostetter’s attorney on June 24, not long after Hostetter was indicted with five other Three Percenters in a conspiracy indictment paralleling those charging the Oath Keepers and Proud Boys. Hostetter was also active in Southern California’s anti-mask activist community, a key network of January 6 participants. Hostetter and his defendants spoke more explicitly about bringing arms to the riot, and his co-defendant Russell Taylor spoke at the January 5 rally. On August 3, Hostetter replaced Pierce.

6, 7, 8. On June 30, Pierce filed to represent David Lesperance, and James and Casey Cusick. As I laid out here, the FBI arrested the Cusicks, a father and son that run a church, largely via information obtained from Lesperance, their parishioner. They are separately charged (Lesperance, James Cusick, Casey Cusick), all with just trespassing. The night before the riot, father and son posed in front of the Trump Hotel with a fourth person besides Lesperance (though Lesperance likely took the photo).

9. Kenneth Harrelson: On July 1, Pierce filed a notice of appearance for Harrelson, who was first arrested on March 10. Leading up to January 6, Harrelson played a key role in Oath Keepers’ organizing in Florida, particularly meetings organized on GoToMeeting. On the day of the riot, Kelly Meggs had put him in charge of coordinating with state teams. Harrelson was on the East steps of the Capitol with Jason Dolan during the riot, as if waiting for the door to open and The Stack to arrive; with whom he entered the Capitol. With Meggs, Harrelson moved first towards the Senate, then towards Nancy Pelosi’s office. When the FBI searched his house upon his arrest, they found an AR-15 and a handgun, as well as a go-bag with a semi-automatic handgun and survivalist books, including Ted Kaczynski’s writings. Harrelson attempted to delete a slew of his Signal texts, including a video he sent Meggs showing the breach of the East door. Pierce attempted to get Harrelson out on bail by joining in the bail motion of one of his co-defendants, which may either show how little he knows about defense work or how little he cares.

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

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

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

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

14. Peter Schwartz: On July 26, Pierce filed a notice of appearance for Peter Schwartz, the felon out on COVID-release who maced some cops.

15. Jeramiah Caplinger: On July 26, Pierce filed a notice of appearance for Jeramiah Caplinger, who drove from Michigan and carried a flag on a tree branch through the Capitol.

Deborah Lee: On August 23, Pierce filed a notice of appearance for Deborah Lee, who was arrested on trespass charges months after her friend Michael Rusyn. On September 2, Lee chose to be represented by public defender Cara Halverson.

16. Shane Jenkins: On August 25, Pierce colleague Ryan Marshall showed up at a status hearing for Jenkins and claimed a notice of appearance for Pierce had been filed the night before. In that same hearing, he revealed that Pierce was in a hospital with COVID, even claiming he was on a ventilator and not responsive. The notice of appearance was filed, using Pierce’s electronic signature, on August 30, just as DOJ started sending out notices that all Pierce cases were on hold awaiting signs of life. Jenkins is a felon accused of bringing a tomahawk to the Capitol and participating in the Lower West Tunnel assaults on cops.

Brandon Fellows Gets a CIPA Notice

In a truly curious development, Brandon Fellows — the guy on the left in the picture, who is currently accused only of obstruction and trespassing in the January 6 riot — just got a CIPA notice. The Classified Information Procedures Act provides a way for the government to prosecute people using classified information while limiting how much information must be shared with the defendant or made public. Effectively, the government gets to show the judge classified information and argue that it is not helpful to the defense or ask to substitute something more innocuous for the classified information to be used at trial.

It’s not yet clear what kind of classified information the government wants to use against Fellows.

But one thing I’ve been tracking is DOJ’s thus far fruitless attempt to figure out who stole Jeff Merkley’s laptop.

Fellows was one of the people who was in his office during the riot and his arrest affidavit mentions the laptop, but admits that at that point (in January) they had no evidence he stole it.

On January 6, 2021, a live stream video on the DLive platform was broadcasted to the public from user “Baked Alaska” and a portion was later posted on Twitter. In the video, several people were observed in an office that appeared to be within the Capitol. The video showed a person who appeared to be FELLOWS, sitting at a table with his feet propped up on a table, as shown in the still shot below. The chairs, table, drapes, and wall art appeared to be consistent with those in the office posted by Senator Merkley. The conference room in which FELLOWS is present appears to be Senate room S140, the private “hideaway” office of Senator Merkley within the U.S. Capitol. The artwork visible on the walls of the conference room in the video is also visible on a video that Senator Merkley posted to Twitter on January 6, 2021, at 11:36pm, documenting some of the damage to his office, as described above. At this time, there is no evidence that FELLOWS was involved in any of the theft, damage, or destruction – other than being a part of the group that occupied the office for some period of time.

Fellows’ discovery shows they obtained a Pen Register on him (which would allow the government to track his contacts). But it doesn’t show that he received what the guy with whom he was pictured with in Merkley’s office, Justin McAuliffe, received: a picture of the stolen laptop.

In a letter describing the discovery provided to McAuliffe, DOJ included a picture of Merkley’s stolen laptop, among other items.

Since I first started tracking this question — and all the defendants arrested because they were filming in Merkley’s office — in May, several more people who were in Merkley’s office have been arrested.

A (surely partial) list of those who were in Merkley’s office, with their arrest date and current status, includes:

  • Anthime Gionet (Baked Alaska): Arrested January 15, still charged (with just trespassing) on original arrest affidavit
  • Brandon Fellows (upstate NY): Arrested January 16, indicted (with obstruction) February 2, jailed for being an asshole to pre-trial services July 15
  • Justin McAuliffe (Long Island): Arrested January 28 and still charged on arrest affidavit, finalizing plea deal as soon as he recovers from a recent car accident
  • Zach Rehl (Philly): Arrested in the Proud Boys Leadership conspiracy indictment on March 19, charged with conspiracy to obstruct the vote count, among other crimes
  • Felipe Marquez (Miami): Arrested January 19 then later charged with obstruction, only to plead guilty to a misdemeanor on September 10
  • Karol Chwiesiuk (a cop from Chicago who did recon the night before the attack): Arrested June 11, still charged with just trespassing on original arrest affidavit
  • Anton Lunyk (NY): Arrested May 11, charged with trespassing on June 17
  • Antonio Ferrigno and Francis Connor (NY): Buddies of Lunyk arrested on trespass charges on August 31
  • Oliver Sarko (OH): Arrested April 30, still charged with just trespassing on original arrest affidavit
  • Jody Tagaris (FL): Arrested around May 14, charged with trespassing on May 19, change of plea scheduled for October 15
  • Gary Edwards (PA): Arrested May 4, charged with trespassing on May 18
  • Nathan Entrekin (the guy from AZ who dressed like Captain Moroni): Arrested July 15, still charged on original affidavit

Some of these people — like Entrekin and Edwards — were probably arrested to get to video they took, including of what happened in Merkley’s office. Gionet, too, took video, but I would be shocked if he weren’t eventually charged with (at least) obstruction. There’s three buddies from Brooklyn (Lunyk, Ferrigno, and Connor) who realized they were in trouble when they showed up in pictures with Gionet.

Fellows is currently the only one of these people charged with a felony, obstruction.

But given that people with ties to the far right who were in Nancy Pelosi’s office stole a laptop and offered it to Russia, I do wonder whether someone also tried to share Merkley’s laptop with Russia.

That’s the kind of thing that might require classified information to charge.

Update: h/t Eureka for reminding me Rehl was pictured smoking in Merkley’s office.

Update (9/10): I neglected to include Felipe Marquez in this list. He just pled guilty. I’ve added him.

David Mish’s Silence on Ashli Babbitt’s Last Words

I have followed, with great interest, how January 6 prosecutors have used the misdemeanor pleas to establish their larger case about January 6. In this post, I noted that Eliel Rosa’s sworn statement of offense describes how obvious it was for someone approaching the Capitol at the same time Ethan Nordean was that cops didn’t want them there.

11. In front of them, Mr. Rosa observed a large group of individuals shouting and Mr. Rosa heard people with megaphones shouting, “Go, Go, Go.” Mr. Rosa heard bangs and acknowledged the smell and presence of pepper spray that had been deployed. Because of these observations, he knew law enforcement was present and in front of the advancing group.

In this post, I collected a bunch of language from statements of offense that either validated a defendant’s own recording of the riot or described some of the violence.

That’s why I was particularly interested in the statement of offense of David Mish. Mish was a witness to Ashli Babbitt’s death. His arrest affidavit had described that he called Metropolitan Police Department on January 7 and offered information in conjunction with Babbitt’s death.

12. On approximately January 7, 2021, David Mish contacted the Washington, D.C. Metropolitan Police Department (“MPD”) stating that he had information to provide about the fatal shooting of Ashli Babbitt, who was shot inside the U.S. Capitol during the civil unrest. On January 8, 2020, Detective John Hendrick of the MPD contacted MISH by phone and recorded the ensuing conversation regarding the Babbitt shooting. MISH stated that he, together with several others, had entered the United States Capitol on January 6, 2021. MISH asked “[b]ecause I entered the Capitol Building are you guys gonna take me to jail? I didn’t break anything. . . . I went in, yes.” Detective Hendrick clarified with MISH that his sole investigatory focus was on the shooting and that he was not involved in investigating MISH’s actions inside the United States Capitol. Detective Hendrick explained that investigation of demonstrators’ actions inside was being handled by other agencies and that he could not say whether or not MISH would be arrested. MISH subsequently stated that “I came up the stairs where the scaffolding was. Um, I was with a group of guys. . . . [E]verybody was yelling ‘breach the building.’”

He told Detective Hendrick that he heard — and recorded — Babbitt telling the police blocking her entry into the Speaker’s Lobby that the mob she was with were “not gonna stop.”

14. In his interview with Detective Hendrick, MISH stated that a group of several individuals went into a bathroom adjacent to the Speaker’s Lobby and he objected when one of the group broke a mirror, stating, “we’re trying to get to the politicians because we wanna voice our . . . we wanna voice to ‘em.” MISH described Babbitt saying to the officer who was at the doorway, “Just open the door. They’re not gonna stop,” or words to that effect, referring to the crowd gathered at the doorway. MISH further stated that he had used his cell phone to record some of the activity that occurred within the United States Capitol. MISH told the detective, “from my video you can tell that I was one of the, I was the first group of people to hit that doorway,” referring again to the locked doorway leading to the Speaker’s Lobby that the rioters were attempting to breach. MISH stated he would provide the video footage to MPD Detective Hendrick and subsequently e-mailed a link to a Google Drive folder. To date, neither MPD nor the FBI has been able to access the content of the link. [my emphasis]

But none of this shows up in Mish’s statement of offense. There’s just one mention of the Babbitt shooting.

While inside the U.S. Capitol, the defendant entered a bathroom near the Speaker’s Lobby and came out to hear the fatal shooting of Ashli Babbitt.

And the Statement of Offense focuses on evidence implicating Mish, not collecting details about Babbitt’s killing.

On approximately January 7, 2021, the defendant contacted the Metropolitan Police Department (“MPD”) stating that he had information to provide about the fatal shooting of Ashli Babbitt inside the U.S. Capitol. On January 8, 2021, a detective with the MPD contacted the defendant by phone. During that conversation, the defendant stated that he had entered the U.S. Capitol on January 6, 2021. The defendant also described the clothing he was wearing, which matched the clothing the defendant was seen wearing on video footage taken inside the U.S. Capitol.

Mish’s plea agreement includes the boilerplate language on cooperation addressing his social media, not anything he witnessed (or claimed to have witnessed) at the Capitol.

There’s no conclusion we might draw from this — aside from, in this case, pertaining to one of the most sensitive parts of the ongoing investigation, DOJ did not include information they otherwise might.

The Dog Ate My Conflict — Car Accident — Ventilator — Disconnected Phones: Miscellany from the January 6 Investigation

I’m working on a few other things but wanted to capture a few details about the January 6 investigation.

John Pierce succeeds in hiring a new client from the COVID ward

Last week, I described how Ryan Marshall, an associate of John Pierce — the trial lawyer attempting to represent 17 January 6 defendants — claimed Pierce couldn’t be at a hearing for someone who would be his 18th because, “Mr. Pierce is in the hospital, we believe, with COVID-19, on a ventilator, non-responsive.”

After another hearing in which that associate, Marshall, showed up with few explanations, DOJ sent out notices to most of the defendants purportedly represented by Pierce, explaining the many conflicting explanations for Pierce’s absence offered in the last week.

The U.S. Attorney’s Office has had no contact with Mr. Pierce—by phone, e-mail, or otherwise—since Monday, August 23, 2021, when he appeared for a hearing before the Honorable Paul L. Friedman in United States v. Jeremiah Caplinger, No. 21-cr-342 (PLF). Since that time, the U.S. Attorney’s Office has heard conflicting information about Mr. Pierce’s health and whereabouts. The morning of Tuesday, August 24, Mr. Pierce was scheduled to appear before Judge Friedman for a status hearing in United States v. Nathaniel DeGrave, No. 21-cr-90. Mr. Pierce was not present at the hearing. Instead, Ryan Marshall—an associate from Mr. Pierce’s law firm who is not a licensed attorney—appeared in Mr. Pierce’s place and represented to the court that Mr. Pierce’s absence was due to a conflict. A few hours later, Mr. Marshall attended a reverse-proffer session with a different defendant represented by Mr. Pierce, telling the Assistant U.S. Attorney that he had just gotten word that Mr. Pierce had been in an accident and was on his way to the hospital. Mr. Marshall then proceeded with the reverse-proffer session in Mr. Pierce’s absence.

The next morning, August 25, Mr. Marshall again appeared in Mr. Pierce’s place at a hearing before the Honorable Amit P. Mehta in United States v. Shane Jenkins, No. 21-cr-245. At that hearing, Mr. Marshall represented to the court that Mr. Pierce was hospitalized with COVID19, on a ventilator, and non-responsive. After that information was reported publicly, a different individual reached out to an NPR correspondent and wrote that Mr. Pierce did not, in fact, have COVID, but instead “was hospitalized on Monday due to symptoms that he believed might be related to Covid-19”; “appears to have been suffering from dehydration and exhaustion”; and “remains under the care of his doctors[.]”3 On Thursday, August 26, Mr. Marshall again appeared before Judge Mehta in Mr. Pierce’s stead, this time in United States v. Peter Schwartz, No. 21-cr178. Before that hearing, Mr. Marshall told the Assistant U.S. Attorney that he had not had any direct contact with Mr. Pierce, but that one of Mr. Pierce’s friends had told him that Mr. Pierce was sick with COVID-19 and another had said he was not. During the hearing, Mr. Marshall requested, and was granted, a sealed bench conference at which to discuss Mr. Pierce’s condition. Later that evening, the same NPR correspondent reported that “[o]ne source close to attorney John Pierce tells me that [Mr.] Pierce is currently hospitalized, and has been diagnosed with COVID19, but firmly denied that he was ever placed on a ventilator.”4 Adding to the confusion, Mr. Pierce, who generally posts multiple messages to Twitter on a daily basis, has not tweeted since August 20.5 And there are reports that “multiple phone numbers for Pierce’s law firm, Pierce Bainbridge P.C., have been disconnected.” [my emphasis]

DOJ then declared all those cases to be “effectively at a standstill” and invited the respective judges to “take any steps [they] believe[] necessary to ensure that the defendant’s rights are adequately protected while Mr. Pierce remains hospitalized.”

Just as all these letters started to go out, the Notice of Attorney Appearance that Marshall had claimed had been filed on August 24, only dated August 30 and auto-signed by Pierce (who may or may not be on a ventilator), appeared in the docket for Shane Jenkins, the defendant at whose hearing Marshall first reported that Pierce was on a ventilator. Shortly thereafter a notice letter covering Jenkins went to Judge Amit Mehta, who had already received at least one for other Pierce defendants. It noted,

At an August 25, 2021, hearing before the Honorable Amit P. Mehta in United States v. Shane Jenkins, No. 21-cr-245 (APM), Ryan Marshall, an associate at Mr. Pierce’s firm, stated that Mr. Pierce now also represents Jenkins. A notice of appearance, purportedly signed by Mr. Pierce, was filed this morning (DE 22).

And with that filing, a man who may be incapacitated acquired an 18th defendant to represent.

WaPo has a good story on Pierce’s other shenanigans, including telling other defense attorneys that this is all a false flag operation and leaving one co-counsel unpaid.

“This whole thing was absolutely a false-flag FBI and intelligence community and military special operations set-up,” he wrote in a late July email to a group of lawyers coordinating defense efforts. The message was shared with The Washington Post. “I don’t [think] a single defendant should take any plea that involves one additional day in jail. At least that’s my mind-set.”

Another attorney replied, “John, can you explain more about how this false flag set-up worked? I’m unclear about the details of what you’re saying.” Pierce did not elaborate.

In another email chain discussing Capitol Police interviews, Pierce wrote, “THIS WHOLE THING WAS AN LEO/IC SET-UP,” referring to law enforcement officers and the intelligence community, “AND WE NEED TO WORK TOGETHER TO PROVE IT.”

[snip]

James Kelly, listed as co-counsel with Pierce in a Jan. 6 case, said Monday that he cut ties with the firm in June because he wasn’t paid, is withdrawing from the case and declined further public comment.

The December 17 cooperation update in the Oath Keepers investigation

Meanwhile, things seem to be progressing in the Oath Keepers case. As a reminder, there are four known cooperators in the case: Jon Schaffer, Mark Grods, Graydon Young, and Caleb Berry. In each, Judge Amit Mehta set a two month deadline for the first status report.

In the Schaffer case, the status report submitted on or before June 16 was quickly sealed; indeed, everything since his plea remains sealed.

In both the Graydon Young and Mark Grods case, however, the status report recently got filed.

In the case of Young, the notice similarly reported on ongoing cooperation, asked that Young’s release conditions be relaxed (to match those of other cooperators, though it doesn’t say this), and asked for December 17 to be the next status report in Graydon Young’s case.

The parties report that Defendant Graydon Young continues to cooperate with the government. We request the opportunity to file a further status report by December 17, 2021.

Defendant Young requests that the Court modify his release conditions, stepping him down from home incarceration to an appearance bond on personal recognizance, with the following conditions: not obtain a passport, surrender any passport, not possess any firearms or destructive weapons, not have any contact with co-defendants or associates or affiliates of the Oath Keepers, stay out of Washington, D.C., and notify Pretrial of any travel outside the Middle District of Florida. The government does not oppose this request.

In the Grods case, DOJ asked for the next status report to be due on the same day, December 17.

The parties report that Defendant Mark Grods continues to cooperate with the government. We request the opportunity to file a further status report by December 17, 2021

Berry pled guilty more recently, so his first status report isn’t due until September 21, two months after his plea.

None of this is all that surprising, but the fact that DOJ harmonized the next report date for Young and Grods, who would otherwise be a week apart, suggests DOJ thinks of that as a milestone in the Oath Keeper case. It may be tied to the first trial date for the conspirators, currently set for January 31, 2022. Or it may reflect some understanding of what the prosecutors think they have before them.

If it’s the latter, it says they’ve got four more months of investigation to complete before they’ll finish.

Update, September 18: The two sides have submitted a status report in the Caleb Berry case, and there, too, they’re asking for a December 17 report date.

“Zachary Studabaker’s” best-in-riot passwords

In a bid to delay trial for Zachary Alam, the guy who punched through the Speaker’s Lobby door with his bare fist, prosecutor Candice Wong gave an updated status on discovery for him (see this post on discovery provided to those who helped Alam break through the Speaker’s Lobby doors; Wong has sent Alam one, two, three, four, five, six). As part of that paragraph, Wong disclosed that the government is still trying to crack the passwords on multiple devices belonging to Alam.

The government has provided defense counsel with significant case-specific discovery, as outlined in seven discovery notices filed with the Court between March 26, 2021, and July 14, 2021. See ECF Nos. 10, 14, 17, 20-22, 24. The materials provided include videos encompassing surveillance footage from the U.S. Capitol Police, body-worn-camera footage from the Metropolitan Police Department, open-source videos posted on news and social media platforms, and videos obtained through legal process or voluntary productions in other Capitol investigations that depict the defendant. Case-specific discovery provided to the defendant also includes reports of interviews with civilian and law enforcement witnesses, grand jury materials, search warrant returns, subpoena returns, and jail calls. As the defendant was inside the Capitol for over half an hour, covered four floors, and had multiple interactions while he was there, the government continues to identify and produce additional case-specific materials. Also forthcoming are extractions of the multiple digital devices recovered from the defendant upon his arrest, for which law enforcement is still attempting to decrypt the defendant’s password protections.

The fifth discovery letter, above, describes four devices obtained via a warrant.

It’s not surprising that Alam would have pretty solid passwords. A detention motion in the case described that Alam used aliases…

Moreover, the defendant is known to have used aliases. Lawfully obtained records show that the defendant has provided multiple false names to service providers, including at least one false name – “Zachary Studabaker” – for services since the events of January 6, 2021.

Stolen license plates…

In addition, according to the government’s information, the defendant was at the time of his arrest driving a vehicle that he had purchased around September 2020 but never registered, and for which the defendant had used multiple license plates, including in recent months. These include a Washington, D.C. license plate, found inside the defendant’s vehicle in Pennsylvania, which was reported stolen in 2018 by an individual who indicated that the front license plate was taken off his vehicle while parked in Northwest D.C. D.C. traffic cameras captured a black Chevy truck matching the description of the defendant’s vehicle bearing this license plate as recently as January 4, 2021. Moreover, when agents located the defendant at the motel in Pennsylvania, they observed the defendant’s black Chevy truck parked outside and noted that it bore Pennsylvania license plates for a Mazda vehicle.

False identification…

Upon arrest, moreover, the defendant had multiple identification cards in his wallet, including a D.C. driver’s license and a D.C. identification card for one male, a Permanent Resident card for a second male, and University student identification card for a female.

Burner phones…

Among the items agents seized from the defendant’s motel room nightstand, moreover, were two mobile phones – a Verizon flip phone as well as an iPhone.

[snip]

For “Sun 1/10/21,” the defendant had written “activate burner,” indicating that four days after the events at the U.S. Capitol, he began using a “burner” phone. That “burner” appears to refer to the Verizon flip phone that agents recovered, as executing agents photographed a receipt dated January 10, 2021, for a “Verizon” phone paid for with $65.13 in cash at a Walmart in Pennsylvania.

Cryptocurrency…

The defendant’s other notes from January 10 referred to his intent to “buy crypto[currency]” and “consolidate crypto,”

[snip]

Meanwhile, on “Wed 1/13,” the notes indicate that the defendant planned to “buy CRV on Binance,” an online exchange for trading cryptocurrencies.

[snip]

He also wrote on another page, “Research security (location intelligence)” and “Research how to launder BTC [bitcoin]” right above notes that likewise appear to concern January 6: “Wanted a civilized discussion w/ our representatives but the door wouldn’t open” and “Call out Pence – should have been over.”

And (a poorly implemented) VPN…

Indeed, in a jail call he made on February 21, 2021, the defendant told an individual that he believed he had been tracked down by law enforcement through GPS on his phone and complained that he had downloaded “VPN on my phone” and “got IP Vanish” but that it was “a bullshit service”; “I tried to make that thing run all the time, and it just shut off like randomly sometimes… They can’t f–ing have the VPN running 24 hours? Basically the same thing as not having it… That’s how they figured out my general location.”

But that’s the thing: Alam was using a great deal of operational security. But when it came down to it, he used a free VPN and had his burner phone sitting on a nightstand right next to his smart phone. He was attempting to use operational security, but he was botching it at every opportunity.

And yet the FBI has not yet cracked passwords on multiple — at least two — of the four devices they seized from him, after arresting him seven months ago. FBI has had limited difficulties getting into January 6 defendants’ phones (the most notable of which was solved when they forced Guy Reffitt to use his face to open his Surface Pro), and there are suspects — including two charged suspects and one who fled bail — who have spent longer periods than Alam as fugitives. But this detail seems to suggest that Alam has the best passwords among the 600 January 6 defendants.

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