Royce Lamberth Refers DC Jail to DOJ for Civil Rights Investigation

Judge Royce Lamberth, a 78-year old Reagan appointee with a libertarian streak, just held the Warden and the Director for the DC Jail in civil contempt for not providing the medical records of Christopher Worrell in timely fashion as he ordered. He further found that DC Jail had abridged the civil rights of Worrell and referred the jail to Merrick Garland for investigation for general civil rights violations.

Worrell’s medical issues — both pre-existing non-Hodgkins lymphoma and a hand he broke while in jail — have been pending for some time. For a time (back when John Pierce was his lawyer), Worrell was himself delaying treatment by refusing to go to medical appointments. The government had been regularly submitting Worrell’s medical records to the docket. Last week, Judge Lamberth ordered the jail to include the doctor’s notes from a hand specialist who reviewed Worrell’s hand injury ASAP.

According to their claims today, they recognized these notes weren’t in the electronic file on Tuesday morning, and scanned them in before Lamberth ordered a show cause hearing (they did not, however, offer to share metadata proving that point). Lamberth didn’t buy that — and was already steaming about DC Jail’s decision to limit how many video conference rooms are available (which has made it almost impossible to schedule last minute hearings).

In judging that DOC had violated Worrell’s civil rights, Lamberth raised the possibility that he was treated this way because he’s a Jan 6 defendant. I’m not sure there’s any evidence to support that.

It’s still too early to understand what will happen as a result of this, both to Worrell’s case, and to the January 6 investigation generally. There’s not much evidence that this treatment is because these guys are Jan 6 defendants. But neither is there any evidence that the jail has done what it has needed to do to respond to the increased demands created by the January 6 investigation.

Hopefully, at the very least, this will serve as a wakeup call that the DC Jail needs to do better.

Brandon Fellows Demands Positive Reinforcement as an Accused Criminal, Before Confessing to More Crimes

In a bond hearing yesterday, January 6er Brandon Fellows explained that he was on a mountain where he went to pray when the FBI came looking for him, but then his bus (in which he lived at the time) got stuck in a ditch. True or not, the claim is an apt metaphor for Fellows, who seems to be little more than a big-Trump narcissist stuck in a little-Trump life.

Fellows kept repeating a number of phrases to blame others for his woes in the hearing. “Not to throw anyone under a bus,” he’d say as he introduced some new claim about someone — all women as far as I could tell — who did him wrong. “It’s unfair,” he said over and over, as he offered some implausible excuse for why he was unable to meet release conditions that hundreds of other January 6 defendants, to say nothing of those prosecuted at disparate rates, could manage. He has made, “constant improvement,” in compliance with his release conditions he claimed, describing that by the time bail was revoked he was breaking fewer requirements at a lesser rate. He responds better to “positive reinforcement.”

Part way into the hearing, he even introduced that observation by citing what Fellows vaguely remembered was an article on Canada’s positive policing approach, and said he thought the US should adopt that approach. “I respond a lot more positively to positive reinforcement.”

He surely didn’t know it, but he was effectively adopting the goals of the Defund the Police movement, which he had seemed to attack in a partisan screed with which he launched his statements and returned to during his close. “January 6 has been a gaslighting tool by the opposition,” he said of an Administration supported by both the Electoral College and Popular Majority, though the claim seemed to arise from a belief there are two tribes in the US locked in combat. “I’m not like the Taliban and neither are other January 6ers.” He almost immediately moved on to ask to be treated like people sent to Gitmo since, he claimed, Joe Biden had freed all of them.

Along the way, though, Fellows admitted to virtually all the allegations that got his bail revoked. “Yeah, I did question [the pretrial service officers] rudely, are your hormones okay, disrespectfully,” he admitted. Yeah, he did call the mother of his pretrial services officer rather than the probation office.

Yes, he did indeed contact the wife of a judge presiding over a New York State case. He explained he was told there was a “loophole,” such that if a defendant had contact with a judge’s family, the judge had to recuse, resulting in a new judge taking the case. Fellows not only admitted doing that in New York, but he admitted he had proposed doing the same with Judge McFadden, only to have his then defense attorney, Cara Halverson, tell him that would get him arrested.  “You did not find a loophole, Brandon,” Fellows relayed what had been a privileged discussion,”I promise you, if you do this with Judge McFadden, you will be arrested.”

Sure enough, when McFadden announced his decision denying Fellows’ motion, the Trump appointee observed that it sounded like Fellows had obstructed justice in New York and had considered doing so in DC to disqualify him, McFadden.

After admitting to trying to game the process to pick his own judges, Fellows made a bigger mistake. He claimed, first, that he had a Tik Tok video proving — and later claimed there must be CCTV video not yet turned over to him showing — that a police officer had told him it was okay to enter the Capitol, so long as he “stopped at the statues.” In doing so, Fellows predictably opened himself to cross-examination about his actions on January 6.

On cross-examination, Mona Furst started and ended by getting him to accede that he had, in fact, committed the violations that had gotten his bail revoked, though most times, Fellows claimed that, “you’re missing lots of context” (citing things like his attempt to test the judge loophole and his inoperational phone), claiming that Furst was “lying by omission” every time she didn’t include his excuses for his own actions. After getting him to concede to virtually all the allegations that had gotten his bail revoked, Furst then turned to his claims he made about his arrest and the riot itself. The lawyer whose advice he claimed he followed when he wrapped his phone in tinfoil and put it on a candy rack next to the Kit Kats, was someone whose name he didn’t remember, who claimed to be a Constitutional lawyer and who had a radio show, his conversations with whom were filmed by a French film crew. Furst asked about his claimed jailhouse interactions with Zach Alam (the guy who broke the window through which Ashli Babbitt jumped) and whether Fellows was, in fact, claiming that Alam was Antifa. Furst got the name of Tighe Berry on the record, so she could compare Fellows’ claims about Berry’s serial Code Pink protests with the actual record.

Then Furst drilled down on Fellows’ claim that a cop told him he could enter the Capitol, so long as he didn’t go past the statues. After getting Fellows to describe precisely where he remembered that conversation happened, she then asked who told Fellows it was okay to climb into the Capitol through a broken window. Fellows responded by saying a longer camera angle would prove he was worried about going in. “What officer told you it was okay to climb in a broken window,” Furst persisted in response.

Furst closed her cross-examination by getting Fellows to, again, concede that the reason his bail had been revoked was that he missed a mental health appointment.

It was even worse than all that. Check out my live tweet for details of how Fellows attempted to call his former defense attorney, Halverson, to attest to his wishes to provide more of the excuses that he had in this hearing. Fellows made up some conspiracy theory about the CIPA filing he is getting, claiming that a National Security Advisor (really, an AUSA) was secretly charging him; McFadden assured Fellows that he had not gotten additional secret charges. Fellows admitted he cried when he got his GPS bracelet put on. He explained, “I smile because I don’t like to show my weaknesses.”

Predictably, Fellows even admitted that he thought it was a stupid decision to go pro se, but he felt at the time it would offer a way to get out of jail.

I did not want to go pro se. I feel like it was a stupid decision. I felt like I had to get out. A lot of ill treatment in jail [from people] who are not Jan 6ers. I would like opportunity to show the court, positive reinforcement, that I can follow the rules.

It was a stupid decision.

McFadden confirmed Furst’s contention that he had given Fellows this hearing even though he was not legally entitled to it, but that he had been permitted to do what, on afterthought, he had wanted to do earlier, testify. McFadden predictably denied Fellows’ motion to reconsider the bail determination, and established a record to note that he has detained defendants — naming Timothy Hale-Cusanelli — who (like Fellows) did not engage in violence on January 6. He described having given Fellows three chances to avoid jailing, which (McFadden claimed) he had never done before. Most importantly, McFadden mocked Fellows’ expressed preference for “positive reinforcement” and judged that Fellows had shown “contempt” to the criminal justice system and the court.

I understand it would have been nicer to get positive reinforcement. This is not community college. You’re facing serious felonies.

[snip]

You engaged in pattern that shows contempt to criminal justice system, to the court. I have no confidence you would follow my orders.

McFadden went on to opine that, in fact Fellows probably had obstructed justice in New York and considered doing so in this case.

The performance of Brandon Fellows yesterday exhibited every single one of Donald Trump’s worst traits. Consistently, he has tried to con his way both into and out of problems. When his own actions were described to be illegal or improper, he claimed it was fake news, and attacked others for failing to present his preferred “context.” And ultimately, he believed that if he could just tell his story himself, he’d be able to con his audience that he was just unfairly accused.

While McFadden has recognized how the January 6 attack has delegitimized democracy, he has also expressed a good deal of skepticism about the equity of the treatment of defendants as compared to other rioters. As he noted, he gave Fellows three chances to fuck up.

But McFadden also takes the authority of the court very, very seriously. And Brandon Fellows just made a mockery of it. This was an instance where McFadden saw, in his courtroom, how much bullshit is flying about January 6 and the aftermath.

What is the appropriate sanction for a “pawn” who participated in a coup attempt?

One thing I informally track in January 6 guilty pleas is education level. At the beginning of most change of plea hearings, as part of an effort to substantiate competence to plead guilty, most judges ask, “How far did you go in school?” I first started to take note when Oath Keeper Graydon Young replied that he has a graduate degree. He’s a dramatic outlier. Since then, my very informal tracking of this detail has shown that very very few of the January 6 defendants who’ve pled guilty so far have a four year degree (others who do include but are not limited to Cleveland Meredith Jr, Jenna Ryan, and Andrew Ericson, the latter of whom finished a CompSci degree since the riot).

I track this demographic not out of intellectual snobbery. I know of some absolutely brilliant people who didn’t finish school (a close family member has been very successful without finishing college, and a good number of the smartest students in the 600 student high school class of which I was valedictorian dropped out short of graduation).

Rather, it’s that based on this unscientific observation, the January 6 defendants who’ve pled guilty are, demographically, dramatically less likely to have a four-year degree than the US population, closer to 10% (perhaps 8 of the 96 people who’ve pled guilty) than the 36% that one might expect of the population more broadly. To be sure, this is not scientific. At least two DC judges don’t ask this question, and my count reflects only those hearings where I was personally listening or another journalist who has become aware of my focus on it has noted it. Plus, there may be reasons why people with less education plead guilty earlier, such as that more of them make up those charged with misdemeanor trespassing. But even Brandon Straka, one of the leaders of the larger Trump movement, described that he went through 12th grade and then got a vocational degree at his change of plea.

January 6 defendants seem disproportionately white and rural, but they also appear to be less educated than the country as a whole, even those who’ve had a good deal of financial success.

I raise all that as background to the sentencing memo for Jack Griffith submitted overnight by Heather Shaner, the same defense attorney who convinced Anna Morgan-Lloyd to do some book reports before sentencing (after which Morgan-Lloyd went straight to Fox News to disclaim her stated remorse).

Shaner doesn’t really address the government’s request for a three month jail term.

Griffith pled guilty to one count of 40 U.S.C. § 5104(e)(2)(G): Parading, Demonstrating, or Picketing in the Capitol Building. As explained below, a custodial sentence is appropriate in this case because Griffith committed his January 6th crime in a manner that trivialized the severity  of the chaotic and dangerous attack, and his later self-promotion and commentary about his participation in the riot demonstrates continued pride in his actions. Griffith had many opportunities to remove himself from the disorder of January 6th but was all too happy to continue his participation. Following his arrest, his casual attitude toward these criminal proceedings demonstrated a lack of respect for this Court—worrying only that he did not want to appear too “cocky” that it was all going to go well for him. By minimizing the seriousness of his conduct, Griffith fails to recognize the harm he caused to his country, the law enforcement officers who were trying to defend it, and others who were working at the Capitol to carry out a Constitutionally mandated process for the peaceful transfer of power

Instead, Shaner focused on what the January 6 riot was, describing it as a coup attempt fomented by people who deliberately manipulated people online.

What occurred on January 6, 2021 was not a naturally developed political protest. It was, I believe, a coup attempt–fomented intentionally by right wing actors who used data mining and psychological manipulation. Vulnerable individuals were identified and persuaded through the internet that it was their patriotic duty to come to Washington to support Trump. In Washington, they were emboldened and ushered down the avenue to “Stop the Steal” and to storm the Capitol.

It is fitting and appropriate to arrest those who participated in the attempted coup. The difficult question is what is the appropriate sanction for a pawn who personally did no physical damage nor assaulted law enforcement– but nonetheless participated in the riot. As Fiona Hill recently stated the “main threats” to democracy come from right-wing actors who are deliberately undermining faith in the “integrity of the election system” and “calling for violence against fellow Americans.” Among the thousands who came to Washington in January and have since been arrested– few among the arrested are the people described by Ambassador Hill. Of the several individuals I have been appointed to represent—none are informed, intentional political actors. Four of the individuals I represent are very young—were heavily reliant on the internet—were uniformed and misinformed. Two individuals suffer from diagnosed mental diseases. The balance of individuals I have come to know and to respect are vulnerable, politically unsophisticated individuals, who are truly confounded by what is happening in our country. Good people with no criminal history—our neighbors– who were fed cynical and dangerous misinformation which destroyed their faith in the integrity of the election system. People who wrongly believed they could save America.

I think Shaner’s description of the event is sound. But I’m not sure she, or anyone, knows the answer to her question: What we do about pawns mobilized for a coup attempt, particularly in the absence of any accountability (yet) for the more powerful coup plotters.

Shaner argues that probation is appropriate for Griffith for two reasons. First, to avoid making a martyr of him.

We should not make pariahs or martyrs of these men and women.

But also to provide a period in which more education can occur.

To save our Union we must be wise. We must be compassionate. We must listen. We must provide the opportunity for the approximately 550 charged misdemeanants to receive more education, and to encourage each of them to study history and to gain civic literacy. Only knowledge—truth based on facts– can foster change. At this critical moment of civil discord and domestic contention –if it is still possible to create a more perfect Union –it must be through education. We cannot force people to learn. But during Probation, we can provide the impetus and the opportunity of continuing education.

This is an argument not about Jack Griffith (and because she’s pitching this to Chief Judge Beryl Howell, who asked with this defendant why DOJ hadn’t charged him more aggressively, it’s unlikely to work). It’s an argument about what the path forward needs to be.

Few people besides Shaner think probation can accomplish what she envisions here (though a three year term of probation will keep defendants supervised and prohibited from owning guns through the next Presidential election). Indeed, the two judges imposing most disparate sentences for trespassers so far, Tanya Chutkan (who has sentenced two trespassers, including Anna Morgan-Lloyd’s buddy, Dona Bissey, to jail terms in the last week), and Trevor McFadden (who has sentenced defendants to far shorter terms of probation than the government asked for, though with extra on top) have come out against probation for these defendants. Chutkan believes Probation is simply too overtaxed to deal with the influx of all these trespassers. McFadden seems to believe what he sees as a debt to society can better be paid through a fine (he imposed the only fine thus far on Danielle Doyle) or community service (which he imposed on Eliel Rosa); McFadden also believes that January 6 defendants are being treated more harshly than other rioters.

Meanwhile, in the case of Robert Reeder, who was first charged with trespassing then, at the last minute, discovered to have assaulted a cop and downplayed that to the FBI, got sentenced to just three months in jail by Thomas Hogan, rather than the six months prosecutors requested rather than charging him with that assault.

I don’t know the answer to Shaner’s question. And I badly wish that Prettyman Courthouse were fully open so I could assume that judges were hashing this out over lunch in their judge’s lunchroom. I know that there are a significant portion of defendants who really were just engaged in the kind of civil disobedience I don’t want criminalized. Though I also know that as DOJ has pushed to move through the misdemeanors and accepted downward pleas from those charged more seriously for a variety of reasons, it has fostered seeming inequities among the growing group of trespassers being sentenced.

Whether or not Shaner is right about Griffith, she’s right about what happened: Coup plotters used conspiracy theories to mobilize thousands, as if in a cult, to storm the Capitol. We need deprogramming as much as we need jail time. And our criminal justice system is probably ill-suited to provide either.

FBI Searches the Home of the Guy Who Said, “I want to see thousands of normies burn that city to ash” on January 6

I want to see thousands of normies burn that city to ash today — Telegram text from person described as UCC-1, January 6, 2021

According to NYT’s Alan Feuer, the person who participated in the Proud Boy leadership Telegram chat planning for January 6 who was described as “Unindicted Co-Conspirator 1” (UCC-1) in the Proud Boy Leaders indictment is Aaron Whallon-Wolkind, the Vice President of the Philadelphia Chapter of the Proud Boys.

As described in the indictment, in Telegram chats obtained from Nordean’s phone, UCC-1 made a comment on January 4 reflecting an existing plan. And he played a key role in setting up the radio communications that would be used on the day of the riot.

41. On January 4, 2021, at 8:20 p.m., an unindicted co-conspirator (“UCC-1”) posted to New MOSD channel: “We had originally planned on breaking the guys into teams. Let’s start divying them up and getting baofeng channels picked out.”1

42. On January 5, 2021, at 1:23 p.m., a new encrypted messaging channel entitled “Boots on the Ground” was created for communications by Proud Boys members in Washington, DC. In total, over sixty users participated in the Boots on the Ground channel, including D.C. NORDEAN, BIGGS, REHL, DONOHOE, and UCC-1. Shortly after the channel’s creation, BIGGS posted a message to the channel that read: “We are trying to avoid getting into any shit tonight. Tomorrow’s the day” and then “I’m here with rufio and a good group[.]”

[snip]

47. UCC-1 the At 9:09 p.m., broadcast a message to New MOSD and Boots Ground channels that read: “Stand by for the shared baofeng channel and shared zello channel, no Colors, be decentralized and use good judgement until further orders” UCC-1 also wrote, “Rufio is in charge, cops are the primary threat, don’t get caught by them or BLM, don’t get drunk until off the street.” UCC-1 then provided a specific radio frequency of 477.985.

UCC-1 also warned the others not to write their criminal plans in Telegram texts.

Specifically, the person identified in the Superseding Indictment as Unindicted Co-Conspirator (“UCC-1”) advised that participants “[s]houldn’t be typing plans to commit felonies into your phone.” UCC-1 later directed that, “if you’re talkin[g] about playing Minecraft2 you just make sure you don’t use your phone at all or even have it anywhere around you.”

2 Minecraft is a video game. Based on information provided by the FBI, the government understands that it is common for persons discussing criminal activity online to refer to such activity as occurring “in Minecraft” to conceal the true nature of the activity.

The full context of UCC-1’s comment about burning DC to ash includes a comment reflecting his belief that “the state is the enemy of the people” and a response from Person 2 describing that “normiecons” have no adrenaline control, a recognition that shows up elsewhere that the Proud Boys could and did inflame non-Proud Boy members.

DONOHOE: Are you here?

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

DONOHOE: Well fuck man

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

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

Person-2: Would be epic

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

Person-2: We are the people

UCC-1: Fuck yea

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

Person-2: Fuck these commie traitors

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

DONOHOE: I’m leaving with a crew of about 15 at 0830 to hoof it to the monument no colors

Person-2 Fuck it let them loose

Person-3 I agree . . . They went too far when the [sic] arrested Henry as a scare tactic

A detention memo for Ethan Nordean revealed that UCC-1 was monitoring livestreams and using other methods to track the riot (I’ve written about how useful former Army Captain Gabriel Garcia’s live streams would have been for that purpose; given Whallon-Wolkind’s role in setting the channel for the Baofengs, it’s likely he tracked that too).

When the Defendant, his co-Defendants, and the Proud Boys under the Defendant’s command did, in fact, storm the Capitol grounds, messages on Telegram immediately reflected the event. PERSON-2 announced, “Storming the capital building right now!!” and then “Get there.” UCC-1 immediately followed by posting the message, “Storming the capital building right now!!” four consecutive times.6 These messages reflect that the men involved in the planning understood that the plan included storming the Capitol grounds. This shared understanding of the plan is further reflected in co-Defendant Biggs’ real-time descriptions that “we’ve just taken the Capitol” and “we just stormed the fucking Capitol.”

6 UCC-1 and PERSON-2 are not believed to have been present on the Capitol grounds, but rather indicated that they were monitoring events remotely using livestreams and other methods.

The centrality of UCC-1 in the indictment against the Proud Boy leaders — along with Aram Rostom’s reporting on Whallon-Wolkind’s past efforts to share information on Antifa with the FBI — fed conspiracies about the FBI seeding the entire January 6 riot.

In January 2019, a member of the Philadelphia chapter of the Proud Boys who called himself “Aaron PB” was on a Telegram chat with fellow members to gather information about Antifa, according to leaked chat screenshots whose authenticity was confirmed by a source familiar with the Proud Boys and by a lawyer for Aaron PB. Aaron PB said in a chat that he was gathering “info we want to send our FBI contact.”

A source close to the federal investigation told Reuters that “Aaron PB” is a Philadelphia Proud Boy leader named Aaron Whallon-Wolkind.

Whallon-Wolkind did not respond to phone calls or questions sent via text. Reached by a Reuters reporter, he hung up.

Patrick Trainor, a New Jersey lawyer for Whallon-Wolkind in an unrelated lawsuit, said Whallon-Wolkind and other Philadelphia Proud Boys had talked about inconsequential matters with the FBI over the years. Those contacts did not amount to anything substantive, Trainor said. Trainor represents other Proud Boys as well.

“They’ve all been approached at different times at different rallies in the city of Philadelphia,” he said. “Plainclothes FBI guys wanted to talk to them. You know: ‘We heard this happened. This happened so let’s talk about it.’”

Trainor acknowledged Whallon-Wolkind made the comments about “our FBI contact” on the Telegram chat, but believes they were not meant to be taken seriously. “I think he was just breaking balls,” Trainor said. “I think there was no contact with the FBI.”

In a May Motion for a Bill of Particulars, Ethan Nordean’s attorneys professed to need the identity of UCC-1 because key allegations in the conspiracy were attributed to him.

The government uses the statements of a person identified as “UCC-1” in the FSI to detain Nordean and to establish a conspiracy. The government has not produced evidence identifying this individual.

[snip]

The FSI cites a “UCC-1” who allegedly makes various conspiratorial remarks. FSI, ¶¶ 41, 42, 47. The government has not produced evidence identifying this individual.

But by July 15 (not long before Enrique Tarrio called Zach Rehl’s wife to sound out whether Rehl was flipping), when Judge Tim Kelly asked whether Nordean lawyer Nick Smith still wanted that identity, Smith instead emphasized a greater need for evidence linking Dominic Pezzola to his client. Smith did complain that the Proud Boys were left speculating on the identity of the person, ridiculously suggesting that his client didn’t know the identities of the around six other people with whom he was in a leadership Telegram channel. Smith then noted that there was public information (Rostom’s reporting) that UCC-1 had been a government informant. Prosecutor Luke Jones then confirmed that UCC-1 was not a CHS — that is, a paid informant of the sort that FBI might use to entrap others.

Nevertheless, in July, it appeared that prosecutors had a cooperating witness who could attest to an advance plan to storm the Capitol.

On Friday, according to a filing purporting to argue that Zach Rehl should be released on bail, FBI agents raided Whallon-Wolkind’s home.

Rehl’s attorney, Jonathon Moseley, claimed that because (he said), “Aaron Whallon-Wollkind did not join the events in the District of Columbia on January 6, 2021, whether the peaceful demonstrations or the violent attacks by a very, very few against U.S. Capitol Police … the Government has no basis for investigating or charging Whallon-Wollkind other than his connection to Zachary Rehl” [all three forms of emphasis Moseley’s], which in turn Moseley claimed was proof that the government still did not have any evidence against Rehl.

It’s a colossally stupid argument, almost as stupid as Moseley’s last two filings, in which he admitted that the Proud Boys “‘circle[d]’ (in a rectangle) the region around the Capitol to monitor the risk from counter-demonstrators,” an encirclement plan that had been publicly tied to obstructing the vote count in advance, and then argued that because Ali Alexander, a brown person who took credit for organizing the Stop the Steal rallies, had not been arrested yet, his [white] client should not have been either.

In the guise of arguing that a warrant that Judge Kelly likely knew about — if not authorized — in advance did not substantiate probable cause, Moseley laid out anything a co-conspirator might want to know about the raid of one of another co-conspirator, including the date of the search, the items listed in the warrant, the crimes under investigation, the items seized, and Whallon-Wolkind’s [wise] refusal to answer questions without an attorney present.

Before dawn on the morning of Friday, October 8, 2021, approximately 20 law enforcement agents heavily armed and wearing riot police gear, raided the home rented by Aaron Whallon-Wollkind near the Pennsylvania border. Aaron was awakened to threats, commands, and intimidation from an extremely loud loud-speaker (far more powerful than a hand-held bullhorn) ordering him to come out of his rural house with his hands up. He walked out of the door to find his girlfriend already handcuffed outdoors without any pants being guarded by the riot-gear wearing FBI agents.

On his lawn he found an armored personnel carrier which he understands to be a “Bear Cat.” The tank-like armored personnel carrier and other vehicles had torn up his lawn. There was also a roughly 15 foot long battering ram mounted on a vehicle. They were apparently all agents of the Federal Bureau of Investigation or at least led by the FBI with supporting officers.

[snip]

In the pre-dawn of Friday, October 8, 2021, Whallon-Wollkind was also handcuffed and held outside while the agents ransacked his house along with his half-naked girlfriend. After some of the roughly 20 agents had searched his house inside, some of the agents brought Whallon-Wollkind back inside where they had moved a single chair in the middle of a room like an interrogation scene from a war movie. They sat him down and began to interrogate him. He told them that he refused to say anything without the advice of an attorney.

The FBI took all of his computer and computer devices and phones, including an old broken phone.

However, Whallon-Wollkind was not arrested or charged.

[snip]

They had staked out his house and taken photographs. The only thing they did not already have is evidence of Zachary Rehl planning, organizing, or leading a poorly-defined “Stop the Steal protest” which Ari [sic] Alexander takes credit for being the National Organizer of. Counsel has reviewed the search warrant and documents given to Whallon-Wollkind yesterday morning, which was sent by text message from his girlfriend.

Counsel understands that when freely given to Wollkind and his girlfriend, the documents lost their sealed character. The paperwork was freely provided to Wollkind and his girlfriend at their house, with no instructions that any restrictions applied to them. There is nothing in the search warrant that orders anything with regard to the person whose property is being searched. We are not talking about the underlying affidavit, which was not provided and remains under seal. But the deprivation of Zachary Rehl’s liberty, being incarcerated for months of his life he will never get back, for things he did not do, outweighs any interest of the Government in continuing to perpetuate a baseless conspiracy theory against Zachary Rehl.

The search warrant is authorized to be executed by October 14, 2021, corresponding to the motions schedule for the next hearing of this Court.

The search warrant was issued on either October 1, 2021, or October 4, 2021 (the text message version is blurry).

[snip]

The SUBJECT OFFENSES are the same criminal charges for which Zachary Rehl was indicted in the First Superseding Indictment. The items to be searched and seized include:

a. Clothing items associating AARON WOLKIND with the Proud Boys organization, as described in the affidavit in support of the search warrant application.

* * *

d. Records and information relating to the identification of persons who either (i) collaborated, conspired or assisted (knowingly or unknowingly) the commission of the SUBJECT OFFENSES; or (ii) communicated about matters relating to the SUBJECT OFFENSES, including records that help reveal their whereabouts.

* * *

f. Records and information … any efforts to or questions about the legitimacy of the 2020 Presidential election, the certification process of the 2020 Presidential Election, or otherwise influence the policy or composition of the United States government by intimidation or coercion.

* * *

h. Records and information relating to the state of mind of the subjects and/or co-conspirators, e.g. intent, absence of mistake….

Moseley makes much of the fact that the FBI had correctly identified in which judicial district Whallon-Wolkind’s house is located, which he says is in a rural area close to the PA border, as well as that the FBI had a serial number and type for Whallon-Wolkind’s smart phone.

Indeed, while counsel is not revealing the judicial district where the search warrant was issued, where Wollkind resides, and where the search warrant was executed, the FBI would have to already know everything imaginable about Wollkind in order to apply to the correct judicial district, which is not what one would expect, and to include (thankfully, to avoid misunderstandings and mistakes) three photographs of Wollkind’s rented house. Thus, the FBI did not need to learn about Wollkind. They wanted to scrounge around for evidence against Rehl that they still do not have. The FBI already knew the precise type and serial number of the smart phone used by Wollkind.

It’s as if this attorney has never seen a probable cause warrant affidavit before, which describe both these things to establish probable cause for the warrant.

Moseley’s conspiracy theory is that the FBI obtained this warrant between the time Rehl first renewed his bid for pretrial release and days before the time there’ll be a status hearing exclusively to obtain evidence to use to prove what the DC Circuit Court has already said is adequate basis to detain Rehl’s co-conspirators.

Perhaps the most interesting detail in this filing, however, is a stray sentence that seems to indicate that Whallon-Wolkind may have traveled to DC in January after the riot.

Aaron Whallon-Wollkind never travelled to the District of Columbia until after the protests were over.

Whatever else Moseley argues, this filing comes after months in which his client’s alleged co-conspirators have suggested that Whallon-Wolkind either was cued by the FBI to incite the entire riot with really incriminating statements (which Jones effectively denied) or had only avoided charges for those far more damning statements because he was cooperating. That is, for months, other Proud Boys have argued that Whallon-Wolkind’s statements were badly incriminating. Now Moseley wants the judge who has been hearing that for months (Moseley repeatedly states that this investigation has been going on ten months rather than nine) to believe there’s nothing incriminating about Whallon-Wolkind’s actions leading up to and during the riot.

If Whallon-Wolkind had been cooperating before — presumably under a proffer agreement that would have prohibited the government from using his statements against him so long as they were honest — it appears that cooperation has ceased. Or perhaps the government has gotten more useful cooperators who’ve implicated Whallon-Wolkind more deeply in the planning for that day.

Whatever the reason, the FBI has recently shifted its focus to the guy who expressed his desire on the morning of the insurrection that there would be an insurrection.

Puzzling Developments in the January 6 Investigation

As I sometimes do, I’d like to look at some curious developments in a series of January 6 cases.

Adam Honeycutt’s trips to DC

If you read just his arrest affidavit, former bail bondsman Adam Honeycutt is a guy who made the grave mistake of posting a picture of himself holding a broken furniture leg to Facebook during the January 6 riot.

Honeycutt was arrested on misdemeanor trespass charges on February 11, but since then his DC case has been continued, with no indictment, until — with the most recent continuation at a status hearing on Tuesday — January 4, almost a year after the riot.

If you look more closely, however, things get more confusing. As several earlier requests for continuances reveal, Honeycutt made the still graver mistake of having guns and non-legal marijuana in his home when the FBI came to arrest him on his January 6 charges, and then chatting about it as he was being driven to the FBI office.

During the transport, HONEYCUTT made a number of unsolicited statements to TFO Rohermel and SA Grover related to his use of marihuana. HONEYCUTT stated that all of the drugs and guns in the house belonged to him, that he knew it looked bad ot have guns layout out in the open in his residence, that he had a large quantity of ammunition of various calibers in the residence, some of which was for firearms he did not currently possess. HONEYCUTT also stated that it was lucky that agents had executed the warrants that day, because his marihuana supply was almost gone, and if the agents had executed the warrants the following day he would have had more because Fridays are his day for resupplying marihuana. HONEYCUTT stated that there were only a few “roaches” left in the garage, referring to burned marihuana cigarette butts. HONEYCUTT stated that he had been smoking marihuana since he was twelve years old and smokes daily. HONEYCUTT expressed to the agents that he was upset he was out of marihuana and there would not be any for him when he got home.

Honeycutt was as a result also charged under a bullshit draconian war on drugs law that carries a ten year maximum sentence, meaning what otherwise might have been a simple trespassing plea turned into (thus far) 8 months of detention on the Florida Federal charge. Honeycutt pled guilty to that charge in June, but is still awaiting sentencing, which is scheduled for next week.

And there’s a curious detail in his sentencing memo on that charge. He reveals that somewhere along the line, he got transferred to DC, even though by March he was formally released from custody on the DC charge.

Mr. Honeycutt has been in custody continuously since February 24, 2021 and has had the additional hardship of prolonged transports from McClenny to Washington, DC in during the pandemic. While in transit, Mr. Honeycutt was assaulted by another inmate while using the phone at the Grady County Jail in Oklahoma. The inmate struck him on the back of the head causing Mr. Honeycutt to hit his head on the ground and suffer dizziness and a black eye. While he suspected he may have had a concussion, this has never been confirmed medically. Also, while detained at the Baker County Jail, Mr. Honeycutt tested positive for Covid-19 and was placed on restrictive quarantine for 14 days while he recovered.

None of that shows up in his docket, though it may simply reflect a remarkably quick transfer after his initial arrest (and Honeycutt would not be the only January 6 defendant who got in a beat up at the Oklahoma transfer jail).

I don’t condone any of this, least of all the war on drugs treatment of marijuana possession. But it’s the kind of stuff that prosecutors use to coerce cooperation elsewhere. And while it’s not at all clear what went on with Honeycutt, his case will still be pending next year on the anniversary of the riot.

Lonnie Coffman’s Alabama Molotovs

Something similar may be going on with Lonnie Coffman’s Molotov cocktails.

Coffman, you’ll recall, is the guy who was dropped off blocks away from the Capitol on January 6, trying to pick up his GMC pick-up full of Molotov cocktails.

After addressing the explosive devices found in the vicinity of the National Republican Club and the Democratic National Committee Headquarters, the Bomb Squad responded to the location of the Red GMC Sierra Pickup truck. One black handgun was recovered from the right front passenger seat of the vehicle. After locating the black handgun, officers proceeded to search the rest of the pickup truck, including the bed of the truck, which was secured under a fabric top. During the search of the cab of the truck, officers recovered, among other things, one M4 Carbine assault rifle along with rifle magazines loaded with ammunition.

In addition, officers recovered the following items in the bed of the pickup truck in close proximity to one another: (i) eleven mason jars containing an unknown liquid with a golf tee in the top of each jar, (ii) cloth rags, and (iii) lighters. Upon finding these materials, bomb technicians observed that the items appeared to be consistent with components for an explosive or incendiary device known as a “Molotov Cocktail.” Based on this discovery, additional personnel were called to the scene, including the United States Capitol Police Hazardous Materials Team. A preliminary test by the United States Capitol Police Hazardous Material Team determined that the liquid in the mason jars was an igniting substance and that it had a spectrograph profile consistent with gasoline.

[snip]

At approximately 6:30 p.m., a blue sedan with a female driver and a male front passenger, approached law enforcement officers in the 400 block of First Street, Southeast. Officers made contact with the vehicle, and the male passenger stated that he was trying to get to his vehicle that was parked in the 300 block of First Street, Southeast, which is the location that the Red GMC Sierra 1500 pickup truck had been located and searched. When the officers asked the man to provide a description of the vehicle, the male passenger stated that it was a red pickup truck. The officers then asked what the male passenger’s name was, and he stated that his name was “Lonnie.”

Coffman also has been detained (more justifiably than Honeycutt) since he was arrested. For much of that time, he has been working on a plea agreement, and on September 1, his lawyer reported they were close to one. On September 8, AUSA Michael Friedman said they would be ready for a plea by September 29.

But one day before that happened, the plea hearing was inexplicably vacated until October 26.

Unnoticed until yesterday, it turns out that on September 27 (that is, the day before his plea hearing was vacated), Coffman was charged in Alabama for possessing those Molotov cocktails the week before he drove them to DC. With Coffman’s consent, that case got transferred to DC in an entirely different docket than his January 6 one.

As with Honeycutt, it’s entirely unclear how his Alabama Federal charges are intersecting with his DC ones. Perhaps Coffman got cold feet on his plea last month, so DOJ added the Alabama charges to convince him to plead. But its another reminder that not every part of the January 6 investigation will be visible in the DC docket.

Brandon Straka gets to walk away

Meanwhile, a case that never left the DC docket, that of Brandon Straka, is just as curious.

Straka was first arrested on January 25 on civil disorder, as well as trespass, charges. Since that time, AUSA April Russo has gotten a series of continuances (February, May, August), each one citing efforts to resolve the matter, which is usually code for a plea agreement. A week after the last continuance, DOJ made a plea offer that had to be accepted by September 14. The day after the plea agreement would have expired, Straka was ultimately charged with the less serious of the two trespass charges, and after a tweak, that’s what he pled guilty to on Wednesday.

Straka’s Statement of Offense includes (and Russo made a point of entering it into the record) the incitement of attacks on cops that originally got him charged for civil disorder.

While in the restricted area, knowing he was not authorized to be there, Straka observed the crowd yelling and U.S. Capitol Police trying to prevent people from going into the U.S. Capitol and to manage the unruly crowd. Amongst other things, he engaged in disruptive conduct by participating, along with others, in yelling “go, go, go” to encourage others to enter the U.S. Capitol while the U.S. Capitol Police were making their best efforts to prevent people from doing so. Straka also observed others yelling to take a U.S. Capitol Police Officer’s shield. He recorded a video of what was happening, and in the video, he chimed in with the crowd, saying “take it, take it.” He did this between 2:30 and 2:45 p.m. on January 6 while outside the entrance to the U.S. Capitol in the restricted area on the Capitol Grounds. Straka left the U.S. Capitol Grounds at approximately 3:00 p.m.

But the Statement of Offense doesn’t include any description of his speech from January 5, where he spoke about “revolution.”

My review of STRAKA’s Twitter account on January 11, also found a video he had posted of himself speaking at a “Stop the Steal” rally held at Freedom Plaza in Washington, D.C. on January 5, 2021. As of January 13, STRAKA had removed this video from his Twitter account, but a video of the entire event had been posted to YouTube. The video showed that STRAKA was introduced by name and brought onto stage. STRAKA spoke for about five minutes during which time he repeatedly referred to the attendees as “Patriots” and referenced the “revolution” multiple times. STRAKA told the attendees to “fight back” and ended by saying, “We are sending a message to the Democrats, we are not going away, you’ve got a problem!”

Nor does his Statement of Offense include this language from Straka’s arrest affidavit describing a video in which he admitted that, “The plan was always to go to the Capitol.”

About one minute into the video, STRAKA stated, “I literally just got home…minutes ago from Washington, D.C.” Later in the video, STRAKA stated, “Yesterday, a lot of us got up very, very early. We went to this event in which Donald Trump spoke. The plan was always to go to the Capitol. We were going to march from that event…to the Capitol, and there was going to be another rally. I was one of the speakers slated to speak at the Capitol.” STRAKA later stated that, while riding the metro to the Capitol, he received alerts on his phone stating that Vice President Pence was “not going to object to certifying Joe Biden.” STRAKA stated that he learned on his walk from the metro to the Capitol that people had “breached” the Capitol and that “patriots had entered the Capitol.” STRAKA said that he thought to himself, “Wow, so they’re going to basically storm and try to get into the chamber so that they can demand that we get the investigation that we want.”

Not only was Straka permitted to a plea that may help him avoid all jail time, but DOJ assented to letting him rush the sentencing so he could be done by Christmas, coincidentally on the same day all the status reports for Oath Keeper cooperators are next due.

Baked Alaska — someone as wired into the organizers of this riot as Straka — claimed early on that prosecutors were threatening to charge him with obstruction if he didn’t cooperate.

This plea looks like it could be the flip (heh) side of such an offer, someone who worked his way out of an existing felony charge and any further exposure on obstruction. That said, his plea includes the standard boilerplate language about minimal cooperation (basically, requiring the defendant share the contents of his phone).

If this does reflect cooperation, then it suggests a number of other people exposed to felony prosecution may similarly be cooperating under the guise of misdemeanor plea agreements.

Ryan Samsel’s aborted cooperation

For about the first four months after Ryan Samsel kicked off the entire riot on January 6 by allegedly knocking over a cop, it looked like he might be considering a cooperation agreement. The same prosecutor who filed continuances in Straka’s case, April Russo, was filing continuances in his case (March, May), also citing efforts to resolve the case.

But on March 21, Samsel was brutally assaulted in jail; his attorney claimed at the time that a guard did it, though that has never been officially confirmed. Samsel’s assault set off a feeding frenzy as one after another attorney — first Martin Tankleff, then John Pierce (whose clients include a significant bunch who could incriminate Joe Biggs), and now Stanley Woodward and former Trump vote fraudster Juli Haller — tried to capitalize off a client who might have basis for a big lawsuit against DOJ (Elisabeth Pasqualini did very competent work as Samsel’s first attorney before all this started). The events that transpired after that assault seems to have ended up changing prosecutors’ approach with his case, and in June, DOJ added another prosecutor, Danielle Rosborough, and in August, DOJ finally indicted Samsel on two counts of civil disorder, two counts of assault, obstruction, and trespassing. (Russo remains the sole prosecutor on the case against the woman who was (and may still be) Samsel’s girlfriend on the day of the riot, Raechel Genco.)

All that’s important background to a big scoop from NYT’s Alan Feuer, describing that, when Samsel was originally arrested, he told the FBI that he kicked off that assault after a threat from Joe Biggs.

For months, however, according to three people familiar with the matter, the government has known Mr. Samsel’s account of the exchange: He has told investigators that Mr. Biggs encouraged him to push at the barricades and that when he hesitated, the Proud Boys leader flashed a gun, questioned his manhood and repeated his demand to move upfront and challenge the police.

Mr. Samsel’s version of events was provided to the government in late January, when he was interviewed by the F.B.I., without a lawyer present, shortly after his arrest in Pennsylvania, according to the people familiar with the matter. He has since been charged with several crimes, including assaulting an officer and obstructing Congress’s efforts to certify the election results.

[snip]

[I]f Mr. Samsel’s account is true, it could serve to bolster arguments that some Proud Boys leaders intentionally incited ordinary people in the crowd — or what they refer to as “normies” — to commit violence during the attack. The government has offered other evidence, drawn from the group’s internal messaging chats, that two Proud Boys leaders from Philadelphia were excited by the prospect of “riling up the normies” on Jan. 6.

As Feuer notes, Biggs’ lawyer Daniel Hull categorically denies this claim. As he also notes, there has been no hint of a weapons charge against Biggs. So it’s quite possible that this allegation was entirely made up out of thin air–or exaggerated in a bid for lenient treatment for Samsel’s own central role in the riot.

But there’s also no sign that DOJ is charging Samsel with lying about these claims.

That is, from the public filings, we can’t discern whether Samsel’s allegation is true or not.

That said, if it’s true, it might explain both the apparent attempt to woo Samsel’s cooperation, but also the urgency surrounding efforts to make sure he doesn’t do so.

The government has flamboyantly obtained cooperation from five different Oath Keepers. But precisely what the government is doing in a slew of other cases remains obscure.

Update: There were three people involved in the assault on the first barricade: Samsel, Paul Johnson, and Stephen Chase Randolph. The latter two are charged together, though Johnson is moving to sever his case from Randolph’s. Here’s the government opposition. Never addressed in it are why Samsel is not only not charged with them, but is before an entirely different judge, who just happens to be the Proud Boy judge.

David Judd Claims He’s Not Being Treated as Well as the Teenager Who Got Murdered

David Judd is accused of, among other things, throwing a lit firecracker at cops as part of the Tunnel fight on January 6.

He is charged as part of the McCaughey omnibus superseding indictment covering the sustained assault that lasted from 1:08 PM through 4:19 PM with the following charges:

  • With Tristan Stevens, attempting to impede an officer from 2:56 to 2:58 PM (Count 16)
  • With assault for throwing the firecracker at 3:06 (Count 22)
  • With Tristan Stevens, assault involving physical contact from 4:15 to 4:19 PM (Count 33)
  • Obstruction, with all his co-defendants (Count 34)
  • Civil disorder, with all his co-defendants (Count 35)
  • Disorderly conduct with a dangerous weapon on grounds where the Vice President was present (Count 38)
  • Engaging in physical violence on grounds where the Vice President was present (Count 46)
  • Disorder conduct in a Capitol Building, with all his co-defendants (Count 52)
  • Act of physical violence in a Capitol Grounds or Building with all his co-defendants (Count 53)

The government attempted to get Judd held pre-trial. But his attorney Elizabeth Mullin succeeded in getting him released to home detention.

He recently filed the second bid by a January 6 defendant to compel discovery to prove that he is being selectively prosecuted as compared with people arrested in conjunction with Portland riots.

Most of the January 6 defendants were vocal supporters of then-President Donald Trump, a Republican, and were protesting Congress’s certification of Democrat Joseph Biden Jr. as the winner of the November presidential election. Many individuals – though not Mr. Judd – then breached the Capitol building with the intent of interrupting Congress’s certification of the election results. Mr. Judd and the rest of the January 6 defendants are being prosecuted by a Democratic administration.

Based on the charging decisions and outcomes sought by the government in Mr. Judd’s case, Mr. Judd believes he has a colorable claim of selective prosecution when contrasted with the government’s charging and prosecutorial decision-making in violent riots in Portland, Oregon in 2020 as well as at least one D.C. riot case in 2020.

In it, he repeatedly claimed he never entered the Capitol (even though he clearly entered the Tunnel).

Eventually a substantial number – though not Mr. Judd – breached and entered the Capitol building.

[snip]

Mr. Judd never entered the Capitol building, he did not bring any weapons to the Capitol,

And he acknowledges that there is abundant video evidence against him, unlike many of those charged in Portland (which is how DOJ distinguished the last attempt to claim selective prosecution failed — there is simply far more evidence against January 6 defendants).

Of course, much of the evidence against Mr. Judd will be video evidence.

Nevertheless, Trevor McFadden — who in a recent sentencing hearing for Danielle Doyle, claimed that DOJ was treating January 6 defendants differently than last summer’s prosecutors, only to be publicly debunked by the AP — showed great interest in Judd’s claim in a status hearing yesterday, going so far as to explain what Judd needed to do in his reply motion (the government has not yet submitted a response) to succeed.

I’ve barely started examining the table Judd submitted with his motion, which lists slightly more than half — 39 of the 74 — people he says were charged in an attack on the Portland Federal Courthouse; I assume (and hope) prosecutors are doing a far more thorough job, because it’s important for McFadden to understand many public claims about these other riots are false.

Certain problems with Judd’s claims — on top of the evidentiary differences and the fact that rioters were not attempting to stop an event over which the Vice President was present and presiding — are quite clear.

For example, the case that Judd says is most similar, in which Ty Fox is being prosecuted for throwing a firecracker, Fox is being detained pre-trial and prosecuted by the state of Oregon with his federal charges continued pending that case.

On September 23, 2021, I spoke with AUSA Thomas Ratcliffe concerning Mr. Fox. Mr. Ratcliffe is unopposed to a 90-day continuance of this matter. After our call, Mr. Ratcliffe provided me with a copy of a letter outlining a potential resolution of Mr. Fox’s federal case based on the Government’s Petite Policy for successive prosecution.

I met with Mr. Fox on September 24, 2021, at MCDC -Portland, where he is being held on state charges. During our meeting, Mr. Fox authorized the Federal Public Defender to transfer his file to me. His file, and the discovery, should be forthcoming. I will need time to review and analyze the evidence and offense.

A number of the others appear to have been dismissed for evidentiary reasons (that is, precisely the reason why — DOJ argued — that it is easier to prosecute Jan 6 defendants, because there is far better evidence, which Judd as much as concedes by noting the video evidence against him in his filing).

But even more telling, Judd included the other most similar case to his own, in which Isaiah Maza Jr. allegedly took a firecracker during a mob attack on a Federal building and threw it into a the doorway of the courthouse, which injured an officer (who may not have been visible to Maza). Maza was charged with assault as well as damaging a federal building, a crime of terrorism. By including Maza in this table, Judd is arguing that Maza was treated differently than he is being because a Democratic Administration is giving him favorable treatment.

It is true that the charges against Maza were dismissed. But they were dismissed — as Judd himself admits — because Maza died.

What Judd doesn’t admit is that Maza was murdered.

Nineteen-year-old Isaiah Jason Maza Jr. was on a pass from his inpatient alcohol treatment at the Oregon Recovery Center when he was fatally stabbed near his mother’s home Sunday in Northeast Portland.

Maza had been released in September pending trial on federal charges for allegedly tossing an explosive through a broken window of the federal courthouse downtown in July and injuring a deputy U.S. marshal.

His mother, his defense lawyer and even prosecutors said Maza had been doing everything right while on release.

He had a job at Macy’s, was taking his treatment seriously, had applied to Portland State University to continue his education and was fighting to get visitation rights with his young daughter, whose name he had tattooed on his neck.

His mother Renee Maza said she was making dinner Sunday night when her son and his girlfriend wanted to walk to a nearby corner store to buy Takis chips.

“I don’t ever let my kids walk at night here,” Renee Maza said Monday. “It’s a bad area. I usually drive them. But I was cooking and I said to him, ‘There are a lot of thugs out there. You know how I feel about walking.’ He said to me, ‘Mama, I’ll be safe. We are just getting chips. I love you.’’’

Isaiah Maza didn’t get far. He was stabbed around 5:30 p.m. near Northeast 120th Avenue and Couch Street outside an apartment complex next to his mother’s home, according to the teen’s girlfriend and mother.

This is Judd’s argument: that he’s not being treated fairly because he wasn’t doubly charged in violation of federal practice and because he wasn’t murdered before standing trial.

Again, I’ve barely scratched the surface of the cases that Judd claims are similar. But thus far, his argument amounts to claiming that he’s being treated unfairly because another guy got murdered.

Peril: What’s Epilogue to Prologue?

[NB: Check the byline, thanks. /~Rayne]

Guess what book came in the mail last weekend?

PROLOGUE
Two days after the January 6, 2021, violent assault on the United States Capitol by supporters of President Donald Trump, General Mark Milley, the nation’s senior military officer and chairman of the Joint Chiefs of Staff, placed an urgent call on a top secret, back-channel line at 7:03 a.m. to his Chinese counterpart, General Li Zuocheng, chief of the Joint Staff of the People’s Liberation Army.

Milley knew from extensive reports that Li and the Chinese leadership were stunned and disoriented by the televised images of the unprecedented attack on the American Legislature.

Li fired off questions to Milley. Was the American superpower unstable? Collapsing? What was going on? Was the U.S. military going to do something?

“Things may look unsteady,” Milley said, trying to calm Li, whom he had known for five years. “But that’s the nature of democracy, General Li. We are 100 percent steady. Everything’s fine. But democracy can be sloppy sometimes.”

It took an hour and a half—45 minutes of substance due to the necessary use of interpreters—to try to assure him.

When Milley hung up, he was convinced the situation was grave. Li remained unusually rattled, putting the two nations on the knife-edge of disaster.

That’s the first six paragraphs of the book Peril‘s fucking prologue.

Prologues are typically use to establish a frame or perspective, providing additional exposition for the reader before they enter the main narrative. They’re far more common in fiction than nonfiction.

This isn’t a true prologue. It’s a chapter from an attempted autogolpe told out of chronological sequence to grab the reader’s attention and make them stay with the narrative.

I’ll admit right now I’ve only just cracked the book and I’m juggling it with other reading I’m doing, but Jesus fucking Christ no wonder the media sat up from its moribund position and covered General Milley’s preemptive diplomacy from Peril’s prologue before its commercial release date September 21.

No wonder, too, why the media immediately went on a tear about Milley’s call to China. Peril’s prologue ensured this would happen.

Sadly, I’m juggling more than other reading right now, so I haven’t been able to catch but snippets of the House Armed Services Committee hearings this past week during which some of the substance in Peril was addressed.

~ ~ ~

It’s surprising and yet unsurprising that the media blew up about General Milley’s defense-by-diplomacy immediately following the January 6 insurrection.

First, they bit on the lede with which Costa and Woodward baited them, which means the prologue worked as a hook, but it also reveals a massive hole in reporting following January 6.

Why did the public need to wait until Costa and Woodward published a book NINE MONTHS AFTER the insurrection to learn the Chairman of the Joint Chiefs of Staff was compelled to engage in diplomacy with his Chinese counterpart?

Second, the media was surprised at the level of concern regarding a peaceful transition of power, but not until NINE MONTHS AFTER the insurrection.

Why weren’t they paying attention to the National Task Force on Election Crises five months before the election and seven months before the insurrection, especially after Trump refused to concede the election, called Georgia’s secretary of state to lean on the state to “find the votes” necessary for Trump to win, and after the January 6 insurrection?

And why did so many media outlets ignore or forget that only Congress has the power to declare war, and that any attack on another nation-state without authorization by Congress would be unlawful?

Lastly, why wasn’t Milley’s oath of office — the same oath taken by all members of the military, similar to the oath taken by federal employees and elected officials — taken into consideration by journalists covering Milley’s diplomatic outreach?

I [name], having been appointed an officer in the Army of the United States, as indicated above in the grade of Second Lieutenant, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic, that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter, so help me God.

Support and defend the Constitution of the United States.

Against all enemies, foreign and domestic.

So little examination of whether Milley was defending the Constitution and against which enemies.

~ ~ ~

I can’t say I’m fond of Bob Woodward. Some of his work is whitewashing, wallpapering — like Bush At War, which was little more than a massive beat sweetener published to assure ongoing access to the Bush White House.

But therein is the crux of the problem Peril presents us: access journalism has failed and continues to fail us.

There’s an article in The New York Times today which focuses on questionable conservative attorney John Eastman whose role in drafting the plan to overthrow the 2020 election was disclosed and thinly outlined in Peril.

Why after all of the NYT’s access reporting during the Trump administration did we have to hear about Eastman from Woodward and Costa and not from the NYT?

Most especially Maggie Haberman who shares the byline on today’s article with Michael Schmidt — why is she covering Eastman now after a book relying on access journalism was published by other journalists?

Was Haberman’s access journalism even worse than believed?

This graf from today’s NYT article just sets my teeth to grinding:

Then, after the November election, Mr. Eastman wrote the memo for which he is now best known, laying out steps that vice president Mike Pence could take to keep Mr. Trump in power — measures Democrats and anti-Trump Republicans have likened to a blueprint for a coup.

Wow, how did Eastman become “best known” for that How-to-Coup memo?

In a two-page memo written by Mr. Eastman that had been circulated to the White House in the days before the certification — revealed in the new book “Peril” by the Washington Post reporters Bob Woodward and Robert Costa — Mr. Eastman said that Mr. Pence as vice president was “the ultimate arbiter” of the election, essentially saying he had the power to determine who won, and that “we should take all of our actions with that in mind.”

Oh. Huh.

~ ~ ~

There are a couple pod casts worth listening to which cover some of the topics addressed in Peril.

While some of the content of this conversation between Nordlinger and Costa appears in Peril, it’s not as obvious as having the author tell you about the subject matter.

Above The Law blog founder David Lat was the featured guest on KCRW’s All the Presidents’ Lawyers podcast hosted by Ken White (a.k.a. Popehat). While the topic is “Trump Derangement Syndrome” covering four lawyers who appear to have gone off the deep end in the service of Donald Trump, one of the lawyers discussed is John Eastman.

Of particular note: the exchange beginning about 9:00 minute mark into the 33:14 program in regards to the Brandenburg standard for incitement of violence.

It’s also worth following the Twitter account of Peril’s author Bob Costa (@costareports); he tweets more about the content and background of Peril as well as new related reporting.

This tweet is particularly important: the insurrection isn’t over. It’s ongoing until the conspirators are stopped — all of them.

It’s this challenge which really makes me angry about Peril and its questionable prologue: the focus became Milley who was one of a few people who prevented January 6th’s aftermath from being so much worse.

The real focus should be that U.S. democracy remains under steady attack with the January 6 insurrection potentially the Krystallnacht which organizes American fascists.

~ ~ ~

I may post more as I continue reading Peril.

If you’re reading Peril as well, feel free to share your takes in comments below.

Alex Jones Used the Promise of a Permit and a Stage to Lure Hundreds to the East Steps

As I noted in this post, Zach Rehl got me to look closer at BuzzFeed’s story liberating the Capitol Police permits for the events on January 6 (even if, after he discovered my own post, he didn’t give me credit in his follow-up). The most important point in Jason Leopold’s story on the permits is that Ali Alexander’s associates used some front organizations to hide that a series of permits were actually all for the Stop the Steal rally.

But Leopold also got one of those people fronting for Alexander, Nathan Martin, to confirm that no one ever used the stage set up in conjunction with the permit.

The One Nation Under God demonstration was scheduled to begin at 9 a.m. near Constitution Avenue NE and First Street. A stage, podium, and sound system were set up. But Martin said they were never used.

That’s important because of what Alex Jones told a group of more than 50 people (the limit on the permit obtained by a front for Alexander) to get them to go to the East side of the building, while Alexander was standing just a few feet behind him. The idea, per Jones, was that they would all go to the other side of the building where they had a stage and a permit so as to avoid any confrontation with the police. (h/t KarmaOneSixOne for alerting me to this video)

Listen to me. We’ve got a permit on the other side. It’s great that this happened, but they’re, Trump’s not going to come if they’re taking this over. We’re not Antifa, we’re not BLM. You’re amazing, I love you. Let’s march around to the other side. Let’s not fight the police and give the system what they want. We are peaceful, we won this election, and much as I love seeing all the Trump flags flying over this, we need to not have the confrontation with the police, they’re going to make that the story. I’m going to march to the other side where we have a stage, where we can speak, and occupy peacefully. Tell everybody behind you. March to the other side. March to the other side.

[Surround the Capitol!]

You guys are great. But the police — provocateurs have caused a problem.

These are the comments that got people like John and Stacie Getsinger to go to the East side of the Capitol, leading them to believe that if they followed Jones, they would get to hear Trump speak again.

Only, Jones didn’t go to the permitted stage. Instead, he walked right up the East steps, stack-style, with boom mikes and people chanting QAnon slogans around him. Some of the Oath Keepers were already waiting, Jones’ former employee Biggs was either there or on his way, and shortly after Biggs arrived, someone would come from inside and open those doors, only to have a Stack ready to help push through and keep those doors open. (h/t @gal_suburban who shared this video)

Right in the Stack with Jones was Alexander, the guy who had used several front organizations to obtain a permit for a stage where he could have legally protested but, in doing so, would have assembled the crowd some distance away from the Capitol rather than right at its doors.

The stage and the permit were the excuse that Jones used to move a mob to the East side of the Capitol.

But the East stairs are where he led them.

Zach Rehl’s Subpoena for Port-a-John Details from the Non-Existent One Nation Under God

The fourth defendant in the Proud Boy Leader indictment, Zach Rehl, has finally made an aggressive appearance in the docket.

How he got here is a matter of significant interest — and some dispute. On September 9, Aram Rostom (who keeps getting these great scoops), reported that Enrique Tarrio released a recording in July reassuring everyone that Rehl would not flip. “If there’s anyone that will hold fast, it’s fucking Zach.”

In the July audio, a copy of which was reviewed by Reuters, Tarrio said that “we are trying to f—ing avoid” a situation in which the senior members facing charges would cooperate with prosecutors. The four, who are jailed without bond, have pleaded not guilty.

Raising the possibility that one of the four leaders may have been cooperating with authorities, Tarrio told fellow Proud Boy leadership he didn’t believe that the man was doing so – and said he had spoken about the matter directly with that leader’s wife.

“The bigger problem with that is the guys that are in prison right now are holding on to hope that everybody is f—ing staying put because they didn’t do anything wrong,” Tarrio said. “The moment that they think one of the guys flipped, it throws everything off and it makes everybody turn on each other, and that’s what we are trying to f—ing avoid.”

When the message leaked, Tarrio released another recording saying that it’s hard enough to fight the government without having to fight, “not just a regular felony, like a serious felony.”

“You know it’s hard enough to fight a f—ing entire government…,” Tarrio said in the Aug. 27 message, “to have to worry about dudes in here f—ing putting you in felony territory. Not just regular felony, like a serious felony.”

On September 19, Ethan Nordean included the following allegations in a filing, noting that in August (so after Tarrio called Rehl’s wife), Rehl had asked Judge Amit Mehta for help firing his attorney, citing what sound like real complaints with his representation. Nordean went on, describing an incident in which prosecutor Seth Jones met with Rehl outside the presence of his counsel and threatened Rehl with transfer to DC if he didn’t flip.

In the bail hearing on September 13, counsel to Defendant Biggs alerted the Court to information concerning the government’s attempts to transfer Defendant Rehl to the D.C. jail. Specifically, Biggs’ counsel advised that the government’s attorneys may have threatened to transfer Rehl to D.C. from a Philadelphia jail if he did not agree to cooperate with the government against the other Defendants. Counsel have subsequently gathered additional information about this episode. It significantly bears on Nordean’s and Biggs’ pending bail motions in several respects. These matters should be investigated by the Court, as it appears that the government’s constitutional violations here are not limited to the improper withholding of exculpatory material beyond the point at which Defendants may make timely use of it. Counsel are working on obtaining sworn declarations for the Court but advise it here about what they have learned in the meantime.

On August 13, Defendant Rehl mailed a letter to the Court. Exh. 1. He was writing from his cell in FDC Philadelphia. Rehl formally requested that he be allowed to terminate his thencounsel, “effective immediately, due to ineffective counsel.” Among other reasons given, Rehl noted that his counsel was taking actions on his behalf without his knowledge and ignoring virtually all requests to discuss the case. “In five months, I have met with [counsel] once in the middle of May for approximately 30 minutes,” Rehl wrote. Exh. 1. As this letter was never filed on the docket, it is not clear when the government became aware of it. However, as inmate nonlegal mail is reviewed, particularly in a case such as this, there is a presumption that the government gained knowledge of the letter at some point.

Sometime after he mailed that message to the Court, Rehl was removed from his cell by federal agents, likely U.S. Marshals. Rehl did not know where he was being taken. The agents told him he was headed to a court appearance. That was not true. Rehl was then moved through an underground tunnel to what appeared to be the Philadelphia federal courthouse. He was then steered not to a courtroom but to an office. There he was greeted by assistant U.S. Attorney Luke Jones. Rehl apparently waited with the government’s prosecutor, without counsel present, for approximately an hour and a half. At that point, an individual who works in the office of Rehl’s former counsel appeared. Rehl had never retained this person to be his counsel and knew her only as an assistant to his former lawyer.3 At that point, AUSA Jones began to converse with Rehl about this case. It is our understanding that Rehl’s retained counsel was not then present. Neither was an FBI agent, according to those in the room.

Among other matters, AUSA Jones apparently told Rehl that if he did not cooperate with the government, he would likely be transferred from FDC Philadelphia to the D.C. jail, where he would not be able to see his wife and child, at least until after his “conviction.”4 It is our understanding that when Rehl said there was nothing to cooperate about, AUSA Jones responded that, in that case, Rehl could “wear a wire” when talking to others. Rehl’s then-counsel arrived much later—approximately three hours behind schedule. At that point the lawyers agreed to continue the meeting to the following day.

So unusual were these proceedings that the Marshals who transported Rehl back to the jail expressed their concern to him about his apparent total lack of legal representation. “Did you know that interview was going to happen? Did your lawyer set that up for you?” When jail staff returned to Rehl’s cell the next day, he refused to meet with AUSA Jones again. [link added]

Nordean made all this public based on a claim that this meant the government was holding them — last I checked, in Florida and Washington — because they wanted Rehl to wear a wire on them.

In response, Jones said the claims were bullshit and inappropriate for Biggs and Nordean to raise in any case.

The allegations of government misconduct are false. It would be improper for the government to address these allegations with counsel for defendants Nordean or Biggs, neither of whom represent defendant Rehl, or to address them further in a public filing. Defendant Rehl is represented by counsel, with whom the government has conferred regarding these allegations.

Contrary to defendant Nordean’s suggestion (ECF No. 174 at 4-7), the allegations have no bearing on his or defendant Biggs’ pending motions to reopen bail hearings. Moreover, the allegations are spurious and should not be countenenced by the Court.

At the most recent hearing, prosecutors attributed the earlier delay on moving Rehl to detention motions and said the Marshals were responsible for the decision to move him. Who knows who is telling the truth, but Judge Tim Kelly agreed that it really is irrelevant to Biggs and Nordean’s bids to get out of jail. He also had a separate hearing where Rehl informed him that Jonathon Moseley is now representing him and he’s quite happy with the relationship thus far.

That’s how we got here, to Rehl’s second substantive motion, in which Moseley moved to request for a subpoena for information on the permits authorizing the Wild Protest rally at the location advertised on the East side of the Capitol. Or, if he can’t get that, he wants policies on port-a-johns because (the motion shows) there were port-a-johns where the rally advertisement said a rally would be held.

ZACHARY REHL, by counsel, requests the issuance of a subpoena to the U.S. Capitol Police, c/o Thomas Manger, [new] Chief of Police and/or Custodian of Records, for

(1) Any and all documents relating in any way to any application for —

(2) Any and all documents relating in any way to —

(3) Any and all documents relating in any way to the denial of —

(4) Any and all documents relating in any way to any revocation of — any permit to demonstrate or assemble on the grounds of the U.S. Capitol, especially in the Northeast corner of the grounds across 2nd Street, NE from the U.S. Supreme Court, on January 6, 2021, or for any time period including January 6, 2021. Or:

(5) Any and all documents relating in any way to the placement of temporary toilets (commonly described as porta-potties) on the grounds of the U.S. Capitol, in the Northeast corner of the grounds across 2nd Street, NE from the U.S. Supreme Court, on January 6, 2021, or for any time period including January 6, 2021. (Please do not confuse the facilities set up on the other side of the Capitol very far away for assembly of stands for the inauguration on January 20, 2021, which could not explain the porta-potties across Second Street from the U.S. Supreme Court.)

(6) Any and all documents relating in any way to general policies and procedures at any time concerning restrictions on the placement of equipment such as porta-potties on the grass of the U.S. Capitol grounds (i) without a permit or (ii) without the employment of contractors approved by the U.S. Capitol Police to do the work.

There’s a lot of word games about how what the indictment really alleges (the object of the conspiracy notwithstanding) is that Rehl conspired to argue in favor of the Electoral College.

15. Indeed, the First Superseding Indictment alleges that:

36. On December 23, 2020, REHL posted on social media describing January 6, 2021, Congress gets to argue the legitimacy of the [E]lectoral [C]ollege votes, and as “the day where yes, there will be a big rally on that day.”

16. Thus, the grand jury by indictment and the prosecution assisting in the drafting of the indictment admits and confesses that REHL’s goal was to get Congress “to argue the legitimacy of the [E]lectoral [C]ollege votes, and – for THAT purpose ” yes, there will be a big rally on that day.”

17. The government admits and confesses within the four corners of the indictment that the goal of the alleged “conspiracy” (which would require a criminal goal) was to get Congress “to argue the legitimacy of the [E]lectoral [C]ollege votes,” and not to stop, obstruct, delay or hinder the Electoral College certification.

18. The government admits and confesses within the four corners of the indictment that the goal of the alleged “conspiracy” was to demand that Congress do not just half of its job but all of its job in certifying the Electoral College vote.

19. Congress plainly could not “argue” the “legitimacy” of the Electoral College votes IF CONGRESS WERE NOT IN SESSION.

But the request itself, for proof that the underlying protest was permitted, is a reasonable basis to try to argue he didn’t plan to prevent the peaceful transfer of power that day.

The problem for Rehl — and the reason this move may backfire — is that the permits are already public and they likely say far more than Rehl wants them to say; BuzzFeed liberated them (in a fairly historic bit of Jason Leopold and Jeffrey Light FOIA magic).

The documents show that when Capitol Police received the permit application for the specific port-a-john location that Rehl wants to subpoena, an officer responding to the permits judged that the application was an attempt to hide the role of Stop the Steal in the rally.

On Dec. 21, 2020, a group called One Nation Under God filed an application with the Capitol Police’s special events section to stage a protest over “election fraud in swing states” at the Senate East Front grassy area on Jan. 6 between 9 a.m. and 6 p.m.

The officer who reviewed the application noticed some irregularities. For one thing, the officer wrote in an intelligence assessment, “One Nation Under God is not an organization and does not maintain social media accounts or webpages.” For another, one of the people listed as a confirmed speaker was Alexander, a leader of Stop the Steal, which was planning a major rally at Freedom Plaza that same day.

A screenshot of the text from the documents

Obtained via Capitol Police

“I explained,” the officer wrote, “that it appears that the Stop the Steal and the One Nation Under God is one in the same due to the similarities and the affiliation with Ali Alexander.” In an email on Dec. 31, 2020, another officer mentioned concerns about the approval of “certain permits,” specifically that “the permit requests … are being used as proxies for Stop the Steal” and “may also be involved with organizations that may be planning trouble.”

The officer did some follow up only to find that the guy who applied for the permit couldn’t answer basic questions about the event.

The permit application listed Nathan Martin of Shelby, Ohio, as a representative of One Nation Under God. According to the documents, a Capitol Police officer spoke with him on Dec. 28, 2020. The officer’s notes suggest that Martin was not forthcoming about the group’s plans.

A screenshot of the application from One Nation Under God

Obtained via Capitol Police

A permit application listing Nathan Martin as the contact for One Nation Under God

“I inquired if he has any additional information he could give me for the event. Mr. Martin said there are a few events that they have going on and he does not know which one I was referring,” the officer wrote. “When I asked about the ‘few events’, he stated that the events were in the hotels.”

And when BuzzFeed called Martin, he admitted the tie between the group on the permit and Stop the Steal — effectively confirming that One Nation was a front for Stop the Steal.

Brown, who did not respond to emails and phone calls requesting comment, told the officer Martin “is associated with Stop the Steal and travels with Ali Alexander.” Martin “does not seem to have an official title but he deals with the daily operations to include hotel books and car rentals.”

[snip]

In an interview with BuzzFeed News, Martin acknowledged his affiliation with the two groups but said he could not explain what One Nation Under God’s mission was, how it was formed, and for what purpose. He said he had not seen the permit, could not explain why his name was on it, and was unaware that the demonstration had been capped at 50 people.

The permit also says the purpose of the demonstration is “demonstration for election fraud in swing states,” which doesn’t sound particularly legal. And BuzzFeed learned that the sound equipment (which Alex Jones may have used to lure bodies to the East side of the Capitol) was never used.

Now maybe Rehl knows all this. Maybe this is what he thinks he’ll get. He first started pursuing this subpoena on September 11, two days after BuzzFeed released these records. So maybe the proof that the Capitol Police approved this permit even after recognizing it was all just a front is what he’s after.

But effectively what he’s doing is soliciting records that show Stop the Steal, with which the Proud Boys seem to have coordinated, engaged in a kind of fraud on the Capitol Police to obtain more permits and spread out their obviously false claim that each protest would only have 50 participants.

Effectively, he risks opening up a whole big can of fraud exposure for any co-conspirators, and any reliance the Proud Boys made on having this permit (and the port-a-johns) to legitimize their mob rests on the shell games that Ali Alexander’s people were playing.

Update: Rehl didn’t know about the BuzzFeed liberation, but neither did he credit me for informing him when he learned of it (the third time the Proud Boy leaders have not credited my reporting in their filings).

4. However, in response to the filing of counsel’s Motion, a news blog noticed the Motion and commented on it, and the blog entry was forwarded to me as counsel.

5. It seems that BUZZFEED filed suit for this information and the permits were released to the public on September 9, 2021. The documents produced are attached hereto.

The admission that he didn’t know that the permits had been liberated (and therefore didn’t know that they show Ali Alexander playing a shell game to obtain permits) may be why his attorney wants to get a good look at these permits for “demonstration for election fraud in swing states” before he relies on them for a new bid to be released.

THEREFORE, the Motion may be moot and counsel asks the Court to delay any consideration of the Motion until counsel can decipher these documents and determine if anything further is still needed.

The FBI’s Proud Boy Informant Showed Up Late

The Proud Boys charged with the most serious assaults on January 6 — including (at a minimum) Dan “Milkshake” Scott and Christopher Worrell — are not charged with conspiracy, though both could easily have been included as co-conspirators. Nor is Ryan Samsel, who is not known to be a Proud Boy but spoke to Joe Biggs just before he kicked off the entire riot by allegedly knocking over a cop and giving her a concussion (this may change, especially since, after a long delay, DOJ charged Samsel individually in an indictment that, either via the assignment wheel or because it was identified as a case related to the Proud Boys leadership indictment, got assigned to Judge Tim Kelly). While Dominic Pezzola is charged with assault for stealing the riot shield he used to break into the Capitol and Billy Chrestman is charged with threatening to assault a cop, their co-defendants are not implicated in those assaults, except insofar as they are overt acts in a conspiracy.

That’s why I find this detail from NYT’s blockbuster report on what a Proud Boy informant who showed up late to the January 6 riot and then entered the Capitol has told the FBI about the investigation rather interesting.

At the same time, the new information is likely to complicate the government’s efforts to prove the high-profile conspiracy charges it has brought against several members of the Proud Boys.

On Jan. 6, and for months after, the records show, the informant, who was affiliated with a Midwest chapter of the Proud Boys, denied that the group intended to use violence that day.

[snip]

On the eve of the attack, the records show, the informant said that the group had no plans to engage in violence the next day except to defend itself from potential assaults from leftist activists — a narrative the Proud Boys have often used to excuse their own violent behavior.

The government has never accused the Proud Boy conspirators of planning to use violence themselves, though there is evidence they knew their incitement could spark violence among “normies.” There’s even evidence that Ethan Nordean tried to rein in one attack (though only after he had presumably witnessed other assaults on cops).

That is, that claim is utterly irrelevant to the government’s conspiracy cases against the Proud Boys.

And yet the NYT offered it as one reason this informant’s report might, “complicate the government’s efforts to prove the high-profile conspiracy charges it has brought against several members of the Proud Boys.”

To be sure, there is one way this informant might undermine the existing conspiracy charges.

The informant’s interview reports affirmatively claim that he knew of no plans to storm the Capitol, nor did he hear any talk of the electoral college certification in his travels that day.

In lengthy interviews, the records say, he also denied that the extremist organization planned in advance to storm the Capitol.

[snip]

But statements from the informant appear to counter the government’s assertion that the Proud Boys organized for an offensive assault on the Capitol intended to stop the peaceful transition from Mr. Trump to Mr. Biden.

On the eve of the attack, the records show, the informant said that the group had no plans to engage in violence the next day except to defend itself from potential assaults from leftist activists — a narrative the Proud Boys have often used to excuse their own violent behavior.

Then, during an interview in April, the informant again told his handlers that Proud Boys leaders gave explicit orders to maintain a defensive posture on Jan. 6. At another point in the interview, he said that he never heard any discussion that day about stopping the Electoral College process.

The records show that, after driving to Washington and checking into an Airbnb in Virginia on Jan. 5, the informant spent most of Jan. 6 with other Proud Boys, including some who have been charged in the attack. While the informant mentioned seeing Proud Boys leaders that day, like Ethan Nordean, who has also been charged, there is no indication that he was directly involved with any Proud Boys in leadership positions.

In a detailed account of his activities contained in the records, the informant, who was part of a group chat of other Proud Boys, described meeting up with scores of men from chapters around the country at 10 a.m. on Jan. 6 at the Washington Monument and eventually marching to the Capitol. He said that when he arrived, throngs of people were already streaming past the first barrier outside the building, which, he later learned, was taken down by one of his Proud Boy acquaintances and a young woman with him. [my emphasis]

This guy’s testimony absolutely poses a challenge to prosecutors prosecuting the Proud Boys this guy was actually interacting with.

That said, the NYT does not say whether he was interacting with those charged with conspiracy or even obstruction (still-active Proud Boys, like Jeremy Grace, have been charged only with trespassing). Even if he was interacting with people charged with conspiracy, the fact that he showed up late and (claimed that he) did not know that some of his own acquaintances were going to breach the barriers until after the fact would, at most, show that he wasn’t privy to the plans of lower level cells.

But the way in which DOJ has charged the Proud Boy side of the conspiracies is with one leadership conspiracy, and four subconspiracies that are effectively cells that allegedly worked together to achieve smaller objectives: to breach the West door, to breach the North door, and to keep the Visitor Center gates open (the NYT misses one of the charged Proud Boy conspiracies, against the Klein brothers, for opening a North door to the building, which has acquired more tactical import with the charging of Ben Martin).

Two main things matter to the viability of the larger Proud Boys conspiracy: First, whether the four charged in the leadership conspiracy did have an advance plan. And second, whether their conspiracy interlocks with the Dominic Pezzola conspiracy that ended up breaching the front door of the Capitol and with it exposed Pezzola, his co-conspirators, and by association, the Proud Boy leaders to terrorism enhancements.

The second point is one that the Proud Boy leaders are contesting aggressively. We have yet to see evidence proving a tie between those two conspiracies. But we also have yet to see any evidence from the December rally at which the ties to Pezzola appear to have been forged. Meanwhile, William Pepe is disclaiming knowing the others, suggesting a possible weakness in that conspiracy charge.

As to the first, what we’ve seen in public evidence is that, in the wake of the Enrique Tarrio arrest on January 4, the four leaders attempted to regroup, and then, on the night before the riot, Joe Biggs and Ethan Nordean met with unnamed people and finalized a plan in seeming coordination with Tarrio, and avoided speaking of it even on their limited leadership Telegram chat.

On January 4, when Tarrio arrived in DC for the riot, he was arrested for his attack on the Black Church in December, whereupon he was found with weapons that are unlawful in DC. In the wake of Tarrio’s arrest, Ethan Nordean was supposed to be in charge of the operation. But around 9:08PM the day before the riot (these texts reflect Nordean’s Washington state time zone, so add three hours), someone said he had not heard from Nordean in hours.

Minutes later, Biggs explained that “we just had a meeting w[i]th a lot of guys” and “info should be coming out.” While redacted in these texts, the superseding indictment describes that he also notes he had just spoken with Tarrio.

He further explained that he was with Nordean and “we have a plan.”

Biggs then says he gave Tarrio a plan.

Ethan Nordean may have been in charge on January 6. But Biggs seems to have been the one working most closely with Tarrio, through whom at least some of the inter-militia coordination worked.

There’s little question they had a plan to do something (and that that plan did not include attending the Trump rally which was the primary innocent reason for Trump supporters to show up to DC that day). The question is what kind of evidence DOJ has substantiating that plan, especially after claimed efforts to flip Zach Rehl collapsed. (Nordean has also said he’ll move to suppress these texts because his spouse consented to the breach of his phone, which led FBI to obtain them, but it’s likely the FBI has a second set of the texts in any case.)

But it also is likely the case that the place to look for that evidence is not with a low-level Proud Boy who showed up late to insurrection, but with the others with whom Nordean and Biggs were meeting the night before the riot. And there’s no indication that these people were all Proud Boys, and in fact good reason to suspect they weren’t.

In the weeks before the riot, Kelly Meggs repeatedly talked about a Florida-based intra-militia alliance.

In the days after both the DC even[t] and an event involving Stone in Florida, Oath Keeper Kelly Meggs claimed he organized a Florida-based “alliance” between the Oath Keepers, Proud Boys, and 3%ers.

On Christmas Eve, Meggs specifically tied protection at the January rally, probably of Stone, and coordination with a Proud Boy, almost certainly Tarrio, in the same text.

And in the days after, the Southern California 3%ers laid out a Stop the Steal affiliated plan to surround the Capitol.

Spread the word to other CALIFORNIA Patriots to join us as we March into the Capitol Jan 6. The Plan right now is to meet up at two occasions and locations: 1. Jan 5th 2pm at the Supreme Court steps for a rally. (Myself, Alan, [and others] will be speaking) 2. Jan 6th early 7am meet in front of the Kimpton George Hotel…we will leave at 7:30am sharp and March (15 mins) to the Capital [sic] to meet up with the stop the steal organization and surround the capital. [sic] There will be speakers there and we will be part of the large effort for the “Wild Rally” that Trump has asked us all to be part of. [my emphasis]

Not only is this what happened on January 6, but Joe Biggs seemed to know that key Stop the Steal figures, including his former employer Alex Jones, would open up a second front of this attack and arrived to take part in it, entering the Capitol a second time virtually in tandem with the Meggs-led Stack.

This is one reason I keep presenting all these conspiracies together: because there’s good reason the Proud Boy conspiracies don’t just intersect with each other, but that the Proud Boy conspiracies intersect, in the person of Joe Biggs and others, with each other.

There are many reasons that the report of an FBI handler not understanding that his or her Proud Boy informant was describing the breach of the Capitol as it happened is important.

After meeting his fellow Proud Boys at the Washington Monument that morning, the informant described his path to the Capitol grounds where he saw barriers knocked down and Trump supporters streaming into the building, the records show. At one point, his handler appeared not to grasp that the building had been breached, the records show, and asked the informant to keep him in the loop — especially if there was any violence.

But, except to limited degree to which his testimony affects the case against the Proud Boys with whom he actually interacted, this report primarily provides yet more proof that the FBI, trained by Billy Barr not to investigate any subjects Trump claimed as his own tribe, had no conception of what they were looking at on January 6, not even as the Proud Boys led an attack on the Capitol.

The government has not yet publicly shown all of its evidence that the Proud Boy leaders, alone or in concert with other militias and Stop the Steal organizers, had a plan to attack the Capitol on January 6. Unless something disrupts the case, we won’t see that until next summer.

But one thing we know from the available evidence is that low-level Proud Boys who showed up late to insurrection are not the place to look for that plan.

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