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The end of the Proud Boys seditious conspiracy trial may be growing closer but the hole the defendants seemingly dug themselves into this week with yet more testimony from their own witnesses has grown larger.

Testimony continued briefly this week with Tarrio’s witness George Meza. Meza is the self-proclaimed rabbi and former third-degree Proud Boy who described Jan. 6 as ‘the most patriotic act” in a century in a gushing, white power-hand-gesture-wielding video post mere days after former President Donald Trump incited a mob to descend on the U.S. Capitol. 

As a witness for Tarrio, Meza was meant to credibly convince jurors that while he was admittedly once part of a rowdy, reactive brotherhood unbound by social mores, it didn’t mean that he or fellow members of the group, including its national leader, were ever part of a violent conspiracy to stop Congress from certifying the election in 2020. 

Their support of Trump was prolific but to hear Meza insist upon it, it was only in a wholesome patriotic fashion, the way that any American might exercise their right to free speech and assembly.

But Meza’s claims collided, in the final hour of his appearance before jurors, with the cold reality of the prosecution’s evidence against the defendants. Impeaching Meza was often done with a sober tone from Assistant U.S. Attorney Jason McCullough. 

When Meza, also known as “Ash Barkoziba,” insisted he had been ousted from the exclusive text channel at the heart of the charges; Tarrio’s so-called “Ministry of Self Defense” or MOSD, by Jan. 3, McCullough presented evidence where Meza’s frantic rantings about the 6th had continued into chats dated Jan. 9. 

“I can’t tell what chat this belongs to,” he said, speaking fast. “It’s hard to believe they would let me back in after they kicked me out…The average Proud Boy didn’t even know this chat existed. I question this statement if I made it at all in this chat.” 

Jan. 6 was “mass hysteria” Meza later told the jury. People were simply “emoting,” he said. He denied having any understanding that police were under extreme duress when he was near the Columbus Doors seconds before they were forced open. He denied attacking the door or being part of the breach there. 

And though suspicions had been raised about the truthfulness of his testimony for a little more than a day, before he left the stand he told one of Tarrio’s attorneys, Nayib Hassan, that he never received instruction from the Proud Boy leader to go to the Capitol. There wasn’t even a discussion about going there, Meza testified. 

Hassan worked to elicit testimony through Meza that seemed intent to portray Tarrio as all flash and no substance, or a showboater who simply enjoyed to “razzle dazzle” the masses or antagonize the media. But objections over the scope and relevance on this count were sustained, leaving an already thin argument more impotent.

Battered by Meza’s testimony, it was followed with a First Amendment heavy defense from fourth-degree Florida Proud Boy Fernando Alonso that was rich in controversy.

Like Meza, Alonso was a member of MOSD and told the jury when he joined the chapter on Dec. 31, 2020, it was his understanding that the local D.C. division of Proud Boys didn’t want “any heat” and the Vice City member learned that other chapters of the extremist group were warned about coming to Washington on Jan. 6. 

Nonetheless, Alonso came on the 5th. 

And when he did, it wasn’t because there was a plan arranged to storm the Capitol, he said. Any suggestion otherwise, Alonso repeated through a gruff, often heavy accent, was “just ludicrous.”

He knew to meet at the Washington Monument, however, having consulted the MOSD chat that day, he testified, but there was “no objective” discussed. Alonso told the jury he didn’t know what was going to happen and when a video of Proud Boys shooing press away from their group as they congregated near the Capitol was played in court this week, Alonso said this wasn’t about hiding conduct. 

It was because Proud Boys didn’t want to be “doxxed” and didn’t want attention on their club. 

Though Alonso testified on direct that the Proud Boys weren’t doing “photo ops” on Jan. 6, another defense witness, Proud Boy Travis Nugent, said that’s exactly how he perceived things. At trial, Alonso insisted Proud Boys were “peacekeepers” on Jan. 6. 

“The objective was we were going to walk towards the Capitol, stop somewhere along the line, and say a prayer. That was the only objective I knew of at that point,” he said.

Tarrio always contacted law enforcement before Proud Boys rallied, he told defense attorney Sabino Jauregui, “as he should.”

But when pressed, he testified that he never saw any messages about that himself, and he admitted to the jury, that while he considered himself a “good friend” of Tarrio who understood the ringleader’s intentions, he also never saw a single private message between Tarrio and Proud Boy elders or leaders like Nordean or Biggs.

 If he had even an inkling that the plan was for Proud Boys to attack the Capitol on Jan. 6 and stop the certification, well, that would have been an affront so severe to Alonso’s sensibilities, he told the jury, “I would have left right there and then.”

Alonso elaborated on how offended he was at the suggestion that Proud Boys would incite violence. They did charity work and hurricane relief. 

It “insulted” him, in fact, that people could think Proud Boys would even ponder the idea of storming the Capitol.

But in court, jurors heard and saw a different side of Alonso.

In an audio clip, he is heard breezing right over the news that a woman (Ashli Babbitt) had been shot inside the Capitol. From the grounds as people around him exclaim, he is heard only asking if then-Vice President Mike Pence had “betrayed” Trump and whether the vote had been certified. 

“Going on the 6th is not about fighting lefties. It’s about joining patriots on the Capitol steps and awaiting the outcome of history that affects us all,” Alonso once wrote under the handle “Deplorable51” in a message to fellow Proud Boy Michael Priest, also known as Al Tourna, on Dec. 20. Priest was brought into the Ministry of Self Defense by Tarrio, according to application records for the “ministry.”

When Tourna, who used the handle “AL PB,” told him that Jan. 6 would be the moment people would need to “take DC” and then warned that it “may not be peaceful,” Alonso didn’t shrink away. 

Unlike much trial testimony from other defense witnesses who vowed the Proud Boys focus was grounded in defending the Trump-loving masses from antifa, Alonso told Priest going to the Capitol on Jan. 6 “is not for antifa.” 

They were going “as patriots to stand with normies together united awaiting the outcome… when we are amongst them they feel safer and the purpose is what will happen that day…” he wrote. 

“It’s not a meet at Harry’s [bar at] 8 p.m. to go hunt antifa,” he added. 

Alonso had attended the Stop the Steal rally in Washington, D.C. in December 2020 with fellow Proud Boys, and on his application form for MOSD, he said he had “provided intel” to members of the extremist group while they were on the ground in D.C. for the Million MAGA March a month earlier. He stayed in Florida for that event.

Proud Boys engaged in violent clashes with counterprotesters after both of those rallies. After the rally in November, a Black woman with long braids brandishing a knife and surrounded by Proud Boys was knocked unconscious by a man who cracked a helmet over the crown of her head prompting her to crumple to the ground immediately.

Prosecutors say Alonso greeted that violence merrily.

“‘Put up the video of that predator bitch,’” Mulroe said in court, quoting Alonso’s texts found in a Miami Proud Boys channel that counted Tarrio as a member.  Alonso denied writing it. 

It didn’t sound like him, he said. 

But Alonso joked about that violent episode and others, Mulroe told presiding U.S. District Judge Timothy Kelly this week as he fought off objections from the defense that this evidence was prejudicial and irrelevant to impeaching one of Tarrio’s few witnesses. But Mulroe convinced Judge Kelly that this show of force, appearing sanctioned by Tarrio, encouraged Alonso to return to the next pro-Trump rally in December and later, to join his fellow Proud Boys in January after Trump’s “wild” invite to Washington. 

Assistant U.S. Attorney Conor Mulroe presented evidence spread out over a series of text messages where Alonso excoriated law enforcement roughly a week before he would officially be invited into the Ministry of Self-Defense by Proud Boy Gilbert Fonticoba, an intimate of Tarrio’s. 

Police in D.C. backed antifa, Alonso wrote on Dec. 23. So too did the FBI. Police had turned their backs on Proud Boys when one of their brothers, Jeremy Bertino, who has already pleaded guilty to seditious conspiracy, was stabbed at the Dec. 12 event.

Weeks later on Jan. 6, when defendant Ethan Nordean spoke to a mass of Proud Boys and others gathered at the Washington Monument with a megaphone, it was he who encouraged them to “back the yellow.” Jurors saw this footage of Nordean invoking the Proud Boys black and yellow “colors” in the same way pro-law enforcement groups may invoke their slogan “back the blue.”

Nordean told the crowd just before 11 a.m. on Jan. 6 that police had let the people who stabbed Proud Boys get away last time. Tarrio had been arrested unfairly just two days before, Nordean wailed. Video footage played for the jury on March 7 showed Nordean passing the bullhorn off to defendant Joseph Biggs next. 

Excitedly speaking to the crowd, Biggs told them it was their “goddamned city” and started chants of “fuck antifa.” But once Biggs would reach the location of what would be the first barrier breach of the day, Alonso testified in court this week that Biggs used the bullhorn again. This time as Proud Boys and non-Proud Boys alike were gathered near the Peace Monument less than 100 yards away from the Capitol, Biggs led chants of “Whose House, Our House” and “1776,” Alonso testified.

Prosecutors contend that Proud Boys relied on “tools” of the alleged conspiracy to pull it off and that included Proud Boys as well as non-members, the  “normies” at the Capitol. In sum, the Justice Department argues Proud Boys believed they could whip the “normies” into a frenzy and this would aid them to breach barricades, subsequently overwhelm law enforcement and get inside the Capitol to stop the certification.

After the Stop the Steal rally just three weeks before the insurrection, positive attitudes toward law enforcement among Proud Boys had dried up, prosecutors allege, and the group’s anger morphed and hardened into a multi-layered paranoia: Trump’s “victory” was stolen. Cops in D.C. had sided with “antifa.” The Democrats and radical left needed to be stopped. 

In a text chat seized off Tarrio’s phone dubbed “Croqueta Wars,” Tarrio and other Florida Proud Boys including Gabriel Garcia, George Meza, Pedro Barrios, and others, shared messages about efforts to keep Trump in power. On Dec. 17, Alonso forwarded a message to the group that laid out a “plan” for Trump to win. He had “dueling electors from 7 state legislatures [and] he has VP Pence as final arbiter of the ballots to accept,” Alonso’s friend “Tim Moore” wrote in the forward. The message was rich in conspiracy theories invoking Julian Assange, Seth Rich, and Sidney Powell’s “Kraken.” 

In the transcript from Alonso’s testimony, during a sidebar with Judge Kelly, Nordean’s defense attorney Nick Smith objected to the introduction of evidence indicating Michael Priest had something a “little less complex in mind” than the theories Alonso forwarded to the Croqueta Wars chat.

While Smith argued it was irrelevant, Mulroe managed to convince Judge Kelly to let in Alonso’s exchange in the next sequence. Priest, as a member of the Ministry of Self-Defense and “tool” of the conspiracy—something Kelly agreed with during the sidebar—was fed up. 

“Unleash the Kraken. Trust the plan. Blah. Blah. Blah. When do we start stacking bodies on the White House lawn?” Priest wrote. 

“Jan. 7,” Alonso replied. 

When Priest told him they would stack the bodies of “RINOs,” or “Republicans in Name Only” first and make Democrats watch, Alonso affirmed in court this week that he said “yes.” But it was just “locker room talk, if you will,” he said. 

In the Ministry of Self-Defense chat on Jan. 3, a day before Tarrio would be arrested and three days before the insurrection, Gabriel Garcia shared a message with MOSD members. It was a blog post from the Hal Turner Radio Show promoting the false claim that a “1776 flag” was flying over the White House that night. But the image wasn’t new. Trump White House deputy chief of staff Dan Scavino posted an image of a colonial-era flag over the White House in June 2019 though that image was doctored too.

But Garcia seemed to believe it was realand so did others in the Ministry like one Proud Boy identified in chats only as “BrotherHunter Jake Phillps.” When Phillips asked whether the “normies and ‘other’ attendees” were going to “push thru police lines and storm the capitol buildings,” and invoked the violence that unfolded in D.C. on December, Alonso replied: “cue in the music… let the bodies hit the floor, let the bodies hit the floor.” 

On direct, Alonso told Jauregui the “bodies” were “regular people” not the police. The police, he said, were going to make people hit the floor at the Capitol. On cross, he told Mulroe it was just a song. It was just locker room talk. It was all just a joke. 

Norm Pattis, for Biggs, argued during a bench conference that Alonso’s comments were protected under the First Amendment and “no more prohibited than saying you’re going to line up capitalists against the wall and shoot them.” 

At the end of his testimony on Tarrio’s behalf, Fernando Alonso said under oath that as far as overtaking the U.S. government was concerned or storming the Capitol, he had no part in it or wanted no part in it. It was a reprehensible suggestion. That was behavior that wouldn’t make him proud. 

Yet, Mulroe pointed out to him, he sat in court today with a yellow shirt bearing the Proud Boys laurel on its chest, hiding just beneath his fleece. And he didn’t seem insulted when Priest talked about storming the Capitol. No one else seemed put off by the suggestion in MOSD either, that Alonso could recall. And though he had claimed he knew Tarrio’s intent, he wasn’t ever a witness to meetings or calls or chats that Tarrio may have had with elders, leaders, or even local police in advance of a Proud Boys official event. 

There was no indication one way or the other to Alonso, Mulroe elicited, that Tarrio had even told local police Proud Boys would plan to meet at the Monument on the morning of the 6th. And he certainly had ample opportunity: Tarrio was arrested on the 4th and ordered by law enforcement to stay out of Washington after his release on the 5th. 

Yet, Mulroe elicited, there was no indication that law enforcement was hipped to the Ministry of Self-Defense’s plan to gather at the Monument with what Alonso said was at least 100 men.

Alonso never went into the Capitol on Jan. 6. He never went with the defendants or anyone else that day to hear Trump, their man of the hour, speak at the Ellipse. When people were breaching the Capitol, he told the jury he thought it would be “too extreme” for anyone to go inside or past police lines. Police could shoot them, he testified.  Alonso, like other Proud Boys on Jan. 6, carried a radio but like other members, he claimed “there was no communication” on it. He downplayed evidence of him railing over Proud Boy Eddie Block’s decision to circulate  footage from Jan. 6 just a week after the insurrection. The wheelchair-bound Block, he told Mulroe, was doxxing them. 

“Crip or not,” Alonso wrote in a Proud Boy chat. “Snitches get stitches.” He added later: “That fuck needs to be duct taped to the National Mall, his scooter placed at the top of it.” 

Congress went into recess on Jan. 6 ultimately stopping the certification for several hours after the mob had rushed past police barriers, subsumed the Capitol steps, tunnels, archways, and inaugural scaffolding before streaming through broken windows or doors like the 20,000-pound Columbus Doors that were ripped from their hinges. 

Tarrio, it appears now, is unlikely to testify on his own behalf. 

Following suboptimal testimony from Tarrio’s witnesses this week, defendant Ethan Nordean squeezed in witness testimony from an FBI confidential human source and Proud Boy who appeared in court using only his middle name, “Ehren.” 

Unfortunately for the defense, “Ehren,” testified under cross-examination that he was not at the Capitol on Jan. 6 as an FBI informant in any meaningful sense. He was there, he affirmed, as a member of the Proud Boys. Though the spelling of his name was not reported into the record, “Ehren” would appear to be the individual that Jan. 6 internet sleuths have identified as “TrackSuitPB.”

In video footage, jurors could see how “Ehren” entered the Capitol carrying zip tie cuffs he said he acquired incidentally as a memento of sorts. At another point, he appears in capitol CCTV  footage flanked by Kansas City Proud Boys like William “Billy” Chrestman, Chris Kuehne, and others, as he helps place a podium under an interior electric gate to keep it from closing while others set chairs in the way. Police are seen working over and over to drop the barrier as rioters advanced.

Poking holes in the defense’s direct and indirect suggestions over these many weeks of trial that the FBI was responsible for guiding the violence of Jan. 6, “Ehren” admitted he wasn’t instructed by the bureau to obstruct the gate. Or enter the Capitol. Or impede police. In hindsight, he admitted, he shouldn’t have helped prop open gates police were trying to lower at all.

While he testified, evidence was also presented to strongly support the government’s claim that he was playing up the “informing” he offered to the FBI. 

“Ehren” texted his handler on Jan. 6 at 1:02 p.m. ET just as barriers were overrun: “Pb did not do it, nor inspire. The crowd did as a herd mentality. Not organized. Barriers down at capital [sic] building crowd surged forward, almost to the building now.” 

During his interviews with the FBI in the summer of 2021, he claimed he was standing 100 people back from the front of the first breach. In court, however, footage showed him more like 20 or 30 people back. He was also close to defendant Zachary Rehl at one point as Rehl filmed from the fore of the crowd.

FBI Agent Nicole Miller testified earlier in the trial that in this particular clip shot by Rehl, she was able to identify the Philadelphia chapter president’s voice screaming “Fuck them! Storm the Capitol” moments before Proud Boy William “Billy” Chrestman is seen scrambling over snow fencing and outnumbered police start to run backward. “Ehren” told the jury he followed Chrestman. The crowd’s chants of “fight for Trump” reverberated as they ran closer to the Capitol. There were hundreds of people behind them, he affirmed. 

When he approached the terrace of the Capitol, he said in court that he saw people topple barricades. 

And yet, he told his handler that the Proud Boys didn’t inspire the breaches.

“Ehren” said he had sent his text vouching for the Proud Boys to his handler earlier than the handler received it but bad cell service caused his message to go through on delay. His testimony around the timing of the message changed over two interviews with the FBI and diverged again once he appeared in court this last week. 

“Ehren” told Nordean’s attorney on direct that his handler urged him: if he saw a crime committed and was asked to talk about it, he was to be truthful with the bureau. 

On cross, he testified under oath that the FBI never “embedded him” with the Proud Boys. He was tasked to report on “antifa” or leftist violence, then a focus for Trump’s Attorney General Bill Barr. “Ehren” was never part of MOSD or the Boots on Ground chat created just for Jan. 6. He said it was his local chapter president who told him to go to the Washington Monument on the 6th and not to wear Proud Boy colors. He never saw messages from Bertino or Tarrio suggesting otherwise but it would seem that information was passed down to him nonetheless.  When he arrived that morning, it was clear, he testified, that Nordean was in charge. 

Proud Boys were to blend in, he said, making themselves identifiable only to each other by slapping a piece of orange tape on their shoulder or arm. Antifa would infiltrate the crowds on the 6th, they believed, “Ehren” testified, and the orange tape allowed so-called Proud Boys brothers to identify each other.

Adding further ammunition to the prosecution’s “tools” argument, “Ehren” also said that Three Percenter Robert Geiswein approached him that morning and asked to march with the Proud Boys to the Capitol. “Ehren” said he told Geiswein he could stick around for a bit but once his brothers started to get on the move, he would have to go his own way.

On redirect by Dominic Pezzola’s attorney Roger Roots, “Ehren” said “Geiswein “didn’t listen very well about staying back once we met with other Proud Boys.”

Indeed, Geiswein would be spotted shoulder-to-shoulder with Pezzola on Jan. 6 just outside of the Senate Chamber. 

 As for “Ehren,” he wouldn’t leave the Capitol until after police told him a woman had been shot. Prior to that moment, he said, he didn’t attempt to de-escalate the situation because he figured if there was an “emergency situation” he “might be asked about it” by his handler. But this testimony ran up against video footage of “Ehren” also pumping his fist in the air in celebration after breaching. 

He rather sheepishly conceded that, in the moment, it all seemed “funny” and “exciting.” 

Witnesses for defendant Zachary Rehl didn’t fare much better this week, save for the largely innocuous testimony of Rehl’s wife, Amanda. Cutting a sympathetic figure, her voice was gentle as she testified and admitted to Rehl’s attorney, Carmen Hernandez, that she was nervous. They married after Rehl graduated from Temple University; she told jurors how three of her uncles were policemen and his father and grandfather were policemen, too. Jurors saw pictures of Zachary’s father and grandfather in their uniforms, including one photo of a young Rehl in tow. They also saw a photo of her child with Zachary, a cherubic-looking little girl of maybe two or three years old. 

On Jan. 6, her husband, she said, left out for D.C. with Isaiah Giddings, Brian Healion, and Freedom Vy. She didn’t come. On the witness stand, Amanda Rehl said she couldn’t distinguish her husband’s voice in the video he shot from the first breach at the Peace Circle. She could hear someone say “Fuck them! Storm the Capitol” but if it was her husband’s, she couldn’t say. 

Testimony from Rehl’s next witness, former West Virginia Proud Boy chapter president Jeff Finley followed. 

Finley was easygoing on the stand with responses neatly tailored on direct. He pleaded guilty to a misdemeanor charge of entering restricted grounds in last April and was sentenced to 75 days. Finley’s first reporting to prison was delayed so he could appear at the trial on Rehl’s behalf. 

Though not a member of MOSD, he was part of the Boots on the Ground chat using the handle “El Jefe.” Finley was often in close proximity to Biggs and the co-defendants on Jan. 6 including at the west terrace where some of the worst fighting of the day occurred. He couldn’t recall whether any police officers asked him not to come inside the capitol that day, however, and he couldn’t identify any of the  Proud Boys Rehl had brought to DC from Philly when Hernandez asked. 

But, he testified succinctly, “no,” he didn’t do anything that day to stop legislators from certifying the election. He was in and out in 10 minutes, he said. 

Finley was a fourth-degree Proud Boy deeply invested in the club—he has a tattoo etched across his chest declaring him a “West Virginia Proud Boy” jurors learned. And in the run-up to the insurrection, prosecutors brought out texts and video showing Finley looking to Nordean as the leader. In his guilty plea, he said as much to investigators and from the witness stand, Finley testified that while Proud Boys marched on the Capitol, it was Biggs, Nordean, and Charles “ Yut Yut Cowabunga” Donohoe, who would sometimes break off from the group for chats he was not privy to. Rehl, Biggs, and Donohoe did the same, he testified. 

Donohoe pleaded guilty to conspiracy to obstruct an official proceeding a year ago this week. 

Finley told the jury he never saw any of the defendants throw projectiles at police and didn’t hear any conversations that led him to believe a plan to stop the certification was in place. He presented Jan. 6 as an opportunity he seized on to “make my voice heard” about potential discrepancies in the 2020 election. 

Yet, prosecutors presented pages of text messages to the jury where Finley urged Proud Boys to delete their communications. Some of the messages showed Finley was furious with Eddie Block for filming, just like Alonso had been. In the weeks after the attack, Finley steadily discouraged Proud Boys from saving information or from having mementos, like challenge coins commemorating Jan. 6, mocked up.

“It would just place you in D.C. give more ammo against you,” he wrote on Jan. 12.

 He deleted his own socials after the 6th but not before making a podcast appearance where he told the interviewer he didn’t know a single Proud Boy who was remotely close to being in the Capitol on Jan. 6. 

“But you were a Proud Boy and you went in with Rehl and three other Philadelphia Proud Boys?” prosecutor Nadia Moore asked Finley in court on March 30. 

He did, he admitted, but in the podcast, the host wasn’t a member of law enforcement so he was in no way obligated to tell the truth. 

When the trial resumes starting Monday, it is expected that defendant Joe Biggs will start to come into focus as his attorneys, Norm Pattis and Dan Hull, make their case. Dominic Pezzola’s attorneys Steven Metcalf and Roger Roots shouldn’t be far behind. While it seemed that Biggs would likely take the stand earlier in the trial, after grueling days for the defense without any immediately obvious pay-off, that likelihood now seems low.

It may behoove Pezzola to try his luck or admit to charges that will be the hardest for him to beat because of compelling video evidence compiled by prosecutors, including video footage of him smashing open a window and allegedly stealing a police riot shield. In the first Oath Keepers case, which in many ways is quite similar to this one, defendant Jessica Watkins admitted to jurors that she impeded officers. In the end, her remorse from the stand may have helped her. She was convicted for impeding officers during a civil disorder (and conspiracy and obstruction) but she evaded a destruction of property charge despite being in the thick of a quite brutal push into the Capitol. She also was not convicted of seditious conspiracy. 

The light is now visible at the end of the tunnel in this three-month-long trial and this week, parties are expected to hash out jury instructions. If there are any Hail Mary moves to be made by the remaining defendants, the window to make them is inching closed.

From emptywheel, 4/2: Thanks to the generosity of emptywheel readers we have funded Brandi’s coverage for the rest of the trial. If you’d like to show your further appreciation for Brandi’s great work, here’s her PayPal tip jar.

The first witness for Henry Tarrio at the now 43-day-old trial was George Meza, a former Proud Boy turned self-professed rabbi who also goes by “Ash Barkoziba.” Meza was discharged from the U.S. military after going AWOL for over six months. These days, as prosecutors elicited, Meza offers prospective converts to Judaism medical exemptions for the Covid-19 vaccine online. 

If the aim of Meza’s testimony was, in some fashion, meant to persuade jurors that the Proud Boys as an organization were tolerant, ideologically passive, or nonviolent or further, that Tarrio’s oversight of the group meant greater standards were enforced that put checks on members who engaged in bigotry or hate, then Meza was unsuccessful. 

Appearing before jurors wearing angular dark-rimmed glasses and a long button-down shirt, Meza’s testimony was often contradictory. On direct examination, he told Tarrio’s counsel Nayib Hassan that he became a third-degree member of the extremist organization but he couldn’t recall when. He told the January 6 committee he joined the group in September or October of 2020.

He told Hassan the Proud Boys were a “reactionary movement” aimed to protect patriotic Americans from communist leftists and flag-burners. Anyone who held supremacist views would be kicked out of the Proud Boys or “should have been,” he said. 

When he was a member and participated in the Ministry of Self-Defense (MOSD) group chat he said he policed it for anti-Semitic and racist commentary. It was a responsibility he took upon himself, he admitted, because the group didn’t “do enough” to eject bigots from its ranks. 

They did, however, eject Meza. 

He was cagey about why he was ousted, his memory foggy on the finer points. During a pointed exchange with prosecutors during cross-examination, Meza also could not remember the exact date he was ousted but insisted it must have been prior to Jan. 3, 2021. Incidentally, Jan. 3 was the same date that members like Proud Boy Gabriel Garcia of Miami texted Tarrio, Biggs, and other members in MOSD that “yes sir, time to stack those bodies in front of Capitol Hill.” 

Prosecutors say evidence shows Meza was in the MOSD chats through Jan. 6 and wasn’t kicked out until after the insurrection. 

When he was an insider, Meza was a member of MOSD as well as the group’s Boots on Ground channel yet another text forum where, according to prosecutors, Tarrio and his now co-defendants Ethan Nordean, Joseph Biggs, Zachary Rehl, and Dominic Pezzola (as well as a host of other Proud Boys charged in separate indictments) coordinated efforts directly or indirectly aimed at disrupting Congress on Jan. 6, 2021. 

The defendants claim the groups were innocuous and largely served as spaces where members could sketch out methods of self-defense against antifa and other perceived enemies of patriots like Donald Trump or his supporters when pro-Trump events were underway. 

The mission of MOSD was about ensuring the “safety of other Proud Boys,” Meza testified.  There was talk of Jan. 6 in MOSD, he said, but he couldn’t recall specific discussions. He also brushed aside suggestions that the group used the space to do things like find “real men” willing to confront police when Jan. 6 rolled around. 

MOSD, he said, was a place where leadership could work toward things like the “thinning out” of members who were unable to curb binge drinking or other unruly behavior at rallies. But at the same time, Meza said Proud Boys did not shy away from taking matters into their own hands when they felt under duress.

After two pro-Trump events in D.C. in November and December 2020 —the Million MAGA March on Nov. 14  and the ‘Stop the Steal’ rally on Dec. 12—the Proud Boys were keyed up. Members had been stabbed during street brawls with antifa, he said. But, he admitted, he didn’t see the stabbings with his own eyes or who started it. 

People got bored. Bored and drunk. And stabbings occurred, he said.

But, he testified, this boys club also sincerely believed it was in the middle of a civil war with antifa. Meza described it as “somewhat of a peaceful civil war… for the most part.” 

Yet, he downplayed the Proud Boys as a drinking club akin to a “fraternity” where “locker room talk” flowed. When one member in MOSD discussed breaking people’s legs or hunting antifa down, for example, Meza said it was hyperbole. 

“It was always reactionary,” he volunteered to Assistant U.S. Attorney Jason McCullough. “It was a lot of poetic hyperbolic statements.” 

“When you’re on the receiving end of violence, does it feel better if it’s just hyperbole?” McCullough asked. 

Defense attorneys objected before he could answer. 

By the time Jan. 6 arrived, Meza testified that he was specifically focused on providing security for Latinos for Trump founder Bianca Gracia. He had been admitted to MOSD after the December 12 rally, he said. Text exhibits indicate Meza was a participant in the MOSD Main chat when Tarrio first out an invitation for a critical video conference hosted on Dec. 29, 2020. 

Ahead of that meeting, defendant Joseph Biggs eagerly told members in MOSD they would soon discuss the “need to make sure guys understand the chain of command” for Jan. 6. In clips from the teleconference played for the jury this February, Proud Boy Charles Donohoe—who has already pleaded guilty conspiracy to obstruct proceedings—is heard emphasizing a need for secrecy among MOSD’s operations.

There would be no social media posts about MOSD, Donohoe urged and at the meeting, Tarrio reiterated this point. Even in the MOSD text channel jurors saw this point was one of several Tarrio listed in a reminder post that was pinned at the top of the channel. When FBI Special Agent Peter Dubrowski testified about the Dec. 29 teleconference, he said while Tarrio, Biggs, and other leaders on the call did not discuss a strategic objective for January 6 that he heard, there was interest for those details expressed by other members. 

Tarrio just wouldn’t come out with it openly, Dubrowski said. He opted to keep information siloed. There was more than one teleconference for MOSD members in the run-up to Jan. 6, Dubrowski testified, but investigators were unable to successfully locate recordings of those videos if they existed. 

As for Meza, he would arrive in Washington on Jan. 5 to stay at the Phoenix Park Hotel.

His mission, he told the jury, was to escort Gracia and others in her entourage as a representative of the Proud Boys on Jan. 6. 

He was to ensure she got to and from the hotel and to the group’s rally. Tarrio, he said, was meant to speak at the Latinos for Trump rally from 10 a.m. to noon though he admitted, Tarrio’s name was never listed on the Latinos for Trump publicity flyer for the 6th. 

The Proud Boys ringleader was arrested on Jan. 4 and promptly received an order to stay out of  D.C. from law enforcement. 

Despite being tapped as security for the high-profile pro-Trump event that the very leader of the Proud Boys was supposed to speak at, Meza testified that he and Tarrio never had any communications about it before Jan. 5.

Further stretching the limits of logical belief, in addition to security for Gracia, Meza told jurors he was there on Jan. 6 as an “independent licensed journalist.” Putting aside the fact that there is no license issued to journalists independent or otherwise, McCullough elicited from the former Proud Boy turned rabbi that he was also interviewing people on the 6th who had never met Proud Boys before. 

The prosecution has alleged that the Proud Boys activated fellow members of their organization on Jan. 6 to breach police lines but further, that they understood their success in applying force to stop the certification would hinge also on raising the hackles of “normies” or everyday people at the rally in Washington. These “normies” were “tools” of the conspiracy, at times, almost as much as some members of the organization were, the government contends. 

McCullough pressed Meza on this point asking him several times if he was positive that he was ousted from MOSD prior to Jan. 3. Presenting a MOSD text chain to the jury, McCullough showed him where a Proud Boy using the handle “BrotherHunter Jake Phillips” told MOSD members: “So are the normies and ‘other’ attendees going to push through police lines and storm the capitol buildings? A few million v. a few hundred coptifa should be enough. I saw a few normie groups rush police lines on the 12th.” 

“Ever see that?” McCullough asked. 

“Never seen it,” Meza said. 

Meza also testified that he didn’t see another comment where “BrotherHunter Jake Phillips” asked, “what would they do if 1 million patriots stormed and took the capitol building. Shoot into the crowd? I think not.” 

Meza did not meet with Proud Boys, including some of the defendants, who gathered at the Washington Monument on the morning of Jan. 6. He told the jury he did not march with any of them when they descended on the Capitol. He said too that he had no cellphone communication with any of them and carried no radio. McCullough, however, showed Meza a picture of himself where a radio is clearly visible on his chest. He stands next to a Proud Boy from Miami he identified as “The Greek.” Also appearing alongside them in the picture is Josh Macias, the co-founder of Vets for Trump. 

This jogged his memory, Meza said. They had radio for the Latinos for Trump event, he said. But they never used them. Someone had given the radios to him but he couldn’t recall who and he said, in any event, they “never figured out how to use them.” 

Former Proud Boy Matthew Greene—who has pleaded guilty to conspiracy and obstruction of an official proceeding already—testified this January that he was tasked to program radios for Proud Boys on Jan. 6 but it wasn’t Tarrio, he told Nayib Hassan, who set him about this project.

When Nick Smith, defense attorney for Proud Boy leader and defendant Ethan Nordean, asked Greene whether those radios were ever used to plan an invasion on the Capitol, Greene also said no. 

Though he said he heard no specific plan for Jan. 6 if it existed, Greene said Proud Boys had steadily grown angrier and angrier as the day approached and members, by December, fully and openly expected a civil war was imminent. 

When Greene traveled to D.C with defendant Dominic Pezzola in a two-car caravan (Pezzola rode in a separate car, Greene rode with New York Proud Boy William Pepe), that hadn’t changed. When things finally clicked into place in his mind, he said, was when he saw Proud Boys lead rioters over barricades for the first time on Jan. 6. 

“Oh shit, this is it,” he recalled thinking.

“I personally had an abstract feeling that Proud Boys were about to be part of something, the tip of the spear, but I never heard specifically what that could be. But as people moved closer to the Capitol, I was in the moment, putting two-and-two together and saying, well, here it is,” Greene testified on Jan. 24. 

Like Meza, Greene was not a high-ranking member of the Proud Boys. 

Greene stuck close to defendant Dominic Pezzola on Jan. 6 as they breached barriers and ascended scaffolding around the Capitol. 

At one point on the 6th, when Greene saw Pezzola clutching a police riot shield, Greene said it was then that he started to question what he was really doing there. Greene stayed close enough to Pezzola long enough to watch him have his picture taken with the riot shield, Pezzola’s hand making the “OK” hand gesture that extremist experts say is associated with the white power movement. Meza told the jury Proud Boys were instructed by the group’s leadership to use the hand signal to antagonize the media. 

Other testimony from Meza was likely just as unhelpful for the defendants.

As video footage played in court from a violent breach of the Columbus Door near the East Rotunda, police clearly struggling to keep the mob at bay, Meza testified that he was escorting two women out of the Capitol after the door was breached. He never saw it breached, he said. He was walking away and three seconds later, the door was open. He asked jurors to believe he never saw protesters stream through that same door 10 to 15 seconds later because things were “so densely populated.” 

He understood the purpose of going to D.C. on Jan. 6 was to “stop the steal,” he testified. And when McCullough asked him plainly whether he believed that the people who went inside the Capitol were “heroes”, Meza was unabashed. 

“Yes I do,” he said. 

Meza’s testimony will resume on Monday since his cross-examination did not conclude Friday. And much to the defense’s chagrin, presiding U.S. District Judge Timothy Kelly has agreed to admit evidence into question that will tie the Proud Boys ever closer to the sedition charge they each face. 

The government wants to cross Meza on a series of key details around Jan. 5 at the Phoenix Park Hotel in downtown D.C. 

This was the same hotel where Tarrio would meet that night with Oath Keepers founder Elmer Stewart Rhodes, who was convicted of seditious conspiracy in November, Bianca Gracia, Joshua Macias, former Oath Keeper attorney Kellye SoRelle and others, in an underground parking garage. 

Prosecutors argue that Meza’s proximity to Gracia as well as his testimony on his stated purpose—security guard for Jan. 6 related events—should grant the government the right to question him about what he heard or what he saw happen in Gracia’s hotel room. 

Judge Kelly was not initially inclined to let this line of examination run, suggesting it was beyond the scope and that conversations in the hotel room prior to a rally were First Amendment-protected activity. But McCullough kept at it. 

“It squarely refutes the idea this is all done for First Amendment [reasons], your honor,” McCullough said. “He is in a room with the head of the Oath Keepers, with the Latino for Trump folks who have just met with Tarrio in a garage earlier that evening and now he is continuing to engage with Bianca who we have heard on direct is thick as thieves—[strike that]. They are very close is what we have heard. That is relevant. There is a connection with this individual when this is all supposed to be about Latinos for Trump and ‘we’re going to a rally from 10 a.m. to 12 p.m.’.”

In a text message extracted from Proud Boy Gabriel Garcia’s phone after Jan. 6, McCullough said Meza said he told other Proud Boys things were “planned in our hotel room the night before by Oath Keepers and Three Percenters. 

In the sentence just before this in the text message, Meza writes, “I’m thrilled with what happened and don’t know why people keep saying it was antifa [or] BLM.” 

Ethan Nordean’s attorney Nick Smith argued this was exculpatory since it appeared to rest responsibility on other extremist groups. But these were Meza’s statements, Kelly found, and therefore, he now agreed with the government: they were relevant and Meza could be questioned about them because “at least,” Kelly said, it was an “implication” that Proud Boys planned to stop the certification with the other groups. 

Tarrio’s next witness is teed up for Monday after much commotion: FBI informant Jennylyn Salinas, also known as “Jenny Loh.” 

Loh’s anticipated appearance threw proceedings into disarray last week as defense attorneys claimed they had no idea Loh was an informant. Loh maintains she told her handlers nothing about her interactions with the Proud Boys and that once the government became aware that she could be called to testify in the case, her informant relationship ended completely. Prosecutors say Loh, who was associated with  Latinos for Trump, was an informant from April 2020 through this January and only received a single payment from the bureau after sharing footage with agents of people harassing her at home. Loh has said that her communications with the FBI were not about Proud Boys but the threat that antifa posed. 

Sabino Jauregui, another defense attorney representing Tarrio, told Judge Kelly on Friday that Loh would be able to testify that in at least 100 different Telegram channels or group chats with multiple Proud Boys, she never saw any chatter of plans to storm the Capitol on Jan. 6. How relevant that will be remains to be seen. There’s no indication that Loh, even if she was a member of dozens of Proud Boy channels, would be hipped to information closely guarded by leadership. 

The government has maintained that Loh never informed on Proud Boys specifically. Jauregui insisted she would often talk to her FBI handler about Biggs and Tarrio in particular. Defense attorneys claim Loh tried to convince one of the defendants to get rid of his attorney.

McCullough offered to share a 36-minute recorded interview with Judge Kelly involving Loh and her FBI handler where, the prosecutor said, it would become clear that Loh was not reporting on Proud Boys.

Kelly has been treading carefully around informant issues that continue to arise in the trial. The defense has issued subpoenas to several witnesses who they say are confidential human sources that would vindicate the Proud Boys. For example, Judge Kelly recently quashed a subpoena from the defense for  Massachusetts Proud Boy Kenny Lizardo. Lizardo attended the meeting with Tarrio and Rhodes in the parking garage at the Phoenix. 

Lizardo, Kelly found,  had a “reporting relationship” with the FBI and intended to invoke his Fifth Amendment right if called. 

Today marks the calendar start of celebration season for Mr. EW and I; all our big dates are squished into a short period that, this year, might well culminate in the first of several indictments for the former President.

For the US political world, though, today marks crime-fraud exception day, the day that at least one of Trump’s attorneys will be obliged to testify about how Trump lied to his lawyers to try to get away with hoarding stolen classified documents.

Because Evan Corcoran (and possibly Georgia attorney Jennifer Little) will testify today, I thought it a good day to update the list of attorneys who were or have been witnesses or who may be subjects in one or more investigations into Trump.

Since the Stormy Daniels payment may lead to Trump’s first indictment, Michael Cohen gets pride of place at number one on this list, a reminder that for seven years, Trump lawyers have been exposing themselves to legal jeopardy to help him cover things up.

The following lawyers have all — at a minimum — appeared in subpoenas pertinent to one or another of the investigations into Donald Trump, and a surprising number have testified before grand juries, including at least three with (Executive Privilege) waivers. To be clear: Many have no legal exposure themselves, but are instead simply witnesses to the efforts made to keep Trump in line before they were replaced with lawyers who were willing to let Trump do whatever he wanted, legal or no. But some of these lawyers have had legal process served against them, and so may themselves be subjects of one or multiple investigations.

1. Michael Cohen (hush payment): convicted felon whose phones were seized April 9, 2018
2. Rudolph Giuliani (Ukraine, hush payment, Georgia, coup attempt): phones seized in Ukraine investigation April 28, 2021, received subpoena for billing records in fundraising investigation around December 2022
3. John Eastman (Georgia, coup attempt): communications deemed crime-fraud excepted March 28, 2022; phone seized June 22, 2022
4. Boris Epshteyn (stolen documents, coup attempt, Georgia): testified in Georgia grand jury; phone seized in September after which he retroactively claimed to have been doing lawyer stuff
5. Sidney Powell (fraud, coup attempt, Georgia): Subpoenas sent in fraud investigation starting in September 2021; testified before Georgia grand jury; appeared in November subpoena
6. Jeffrey Clark (coup attempt): May 26 warrant for cloud accounts and phone seized June 22, 2022
7. Ken Klukowski (coup attempt): May 26 warrant for cloud accounts
8. Victoria Toensing (Ukraine, coup attempt): Phone seized in Ukraine investigation April 28, 2021, on June and November subpoenas
9. Brad Carver (Georgia and fake elector): phone contents seized June 22
10. Jenna Ellis (coup attempt and Georgia): Rudy’s sidekick, censured by CO Bar for lying serial misrepresentations, on June and November subpoenas
11. Kenneth Cheesbro (fake elector, Georgia): included in June and November subpoenas
12. Evan Corcoran (stolen documents): testified before grand jury in January, testifies under crime-fraud exception on March 24
13. Christina Bobb (coup attempt, Georgia, stolen documents): interviewed in October 2022 and appeared before grand jury in January, belatedly asked for testimony in Georgia
14. Stefan Passantino (coup attempt obstruction and financial): included in November subpoenas, alleged to have discouraged full testimony from Cassidy Hutchinson
15. Tim Parlatore (stolen documents): appeared before grand jury in December 2022
16. Jennifer Little (Georgia and stolen documents): ordered to testify under crime-fraud exception
17. Alina Habba (stolen documents, NYS tax fraud): testified before grand jury in January
18. Bruce Marks (coup attempt): included in November subpoena
19. Cleta Mitchell (coup attempt and Georgia): included in November subpoenas
20. Joshua Findlay (coup attempt): included in June subpoenas
21. Kurt Olsen (coup attempt): included in November subpoenas
22. William Olson (coup attempt): included in November subpoenas
23. Lin Wood (coup attempt): included in November subpoenas
24. Alex Cannon (coup attempt, financial, stolen documents)
25. Eric Herschmann (coup attempt, Georgia, financial, stolen documents)
26. Justin Clark (coup attempt and financial): included June and November subpoenas
27. Joe DiGenova (coup attempt): included in June and November subpoenas
28. Greg Jacob (coup attempt): grand jury appearances, including with Executive Privilege waiver
29. Pat Cipollone (coup attempt): grand jury appearances in summer and — with Executive Privilege waiver — December 2
30. Pat Philbin (coup attempt and stolen documents): grand jury appearances in summer and — with Executive Privilege waiver — December 2
31. Matthew Morgan (coup attempt): included in November subpoenas

Tim Parlatore is the latest addition to this list, based off someone’s decision to reveal Parlatore’s testimony to the stolen documents grand jury in December. As ABC reported, Beryl Howell ordered him to testify after he belatedly revealed that investigators he hired had found four documents with classification marks in a box brought back to Mar-a-Lago after the August 2022 search (he emphasizes that he did so without a subpoena, but this was an effort to stave off a finding of contempt).

The Dec. 22 testimony from attorney Timothy Parlatore was ordered after months of wrangling between Trump’s attorneys and officials in the Justice Department, who had grown increasingly concerned that Trump still continued to hold onto classified documents after more than 100 were discovered in the August 8 search, sources said.

In fact, just days before his testimony, Parlatore revealed to the DOJ and D.C. district court Judge Beryl Howell that a search of Mar-a-Lago conducted by Trump’s legal team on Dec. 15 and 16 had discovered four additional documents with classification markings, according to sources.

[snip]

While Judge Howell declined to hold Trump or his legal team in contempt at a Dec. 9 hearing, sources said, she did order Parlatore to testify on issues surrounding a signed certification he had provided that outlined the results of his team’s searches of locations where records responsive to the DOJ’s original subpoena could be located.

Howell also suggested at the hearing that Trump’s legal team include Mar-a-Lago in their list of locations to be searched again, despite the FBI’s previous court-authorized search of the property months earlier, sources said.

On Dec. 16, following a two-day search of Mar-a-Lago, Parlatore submitted a revised certification that acknowledged the discovery of the four additional documents in a closet near Trump’s office, sources said.

This explanation makes no mention of the classified folder found — presumably during the same search of Mar-a-Lago done at Howell’s suggestion — in Trump’s bedroom. Parlatore, who was brought in to do searches to give the patina of reliability to the earlier subpoena non-compliance, did not voluntarily hand over that folder; instead, DOJ subpoenaed it. In the wake of disclosures about that, Parlatore went on TV and made the ridiculous claim that the former President has nothing better to use to cover up a light on his bedside phone than random folders that once contained classified records, random folders that were not found during the FBI’s August 8 search.

Nor does this explanation mention the laptop with the documents marked classified (now numbered as four) also turned over.

Perhaps the most important detail this Parlatore-friendly story left out, however, is the way Trump’s team fought unsuccessfully to keep the names of the people who did the searches secret. After Howell ordered them to share those names in January, they testified before the grand jury, after Parlatore had already done so.

In this story, seeded the day before Corcoran testifies before the grand jury, that belatedly reveals Parlatore’s testimony before the grand jury, he makes claims of prosecutorial misconduct.

Parlatore, when reached for comment by ABC News, said, “I voluntarily and happily chose to go into the grand jury so that I could present my client’s case to them in the context of our search efforts. During my testimony, it was clear that the government was not acting appropriately and made several improper attempts to pierce privilege and, in my opinion, made several significant misstatements to the jury which I believe constitutes prosecutorial misconduct.”

Had Parlatore really believed something amounted to prosecutorial misconduct, we would have heard about it in December — though that would have required revealing how documents marked as classified got moved back to Mar-a-Lago after the August search. Had Parlatore really believed something amounted to prosecutorial misconduct, he would have said that on TV instead of sharing his bullshit story about covering up the light on a phone.

He didn’t. He didn’t make this claim until the night before Corcoran is set to testify about the adequacy of Mar-a-Lago searches Corcoran did six months before the one Parlatore did.

In between the time Parlatore testified to the grand jury in December and today, though, Parlatore made this bizarre claim about the possibility that Boris Epshteyn, described here as the gatekeeper between Trump and the lawyers, could be a subject of the investigation. (This story, dated March 14, followed the February 12 bullshit claim about the light by the side of the bed by just over a month.)

Mr. Epshteyn’s legal role with Mr. Trump, while less often focused on gritty legal details, has been to try to serve as a gatekeeper between the lawyers on the front lines and the former president, who is said to sometimes roll his eyes at the frequency of Mr. Epshteyn’s calls but picks up the phone.

“Boris has access to information and a network that is useful to us,” said one of the team’s lawyers, Timothy Parlatore, whom Mr. Epshteyn hired. “It’s good to have someone who’s a lawyer who is also inside the palace gates.”

Mr. Parlatore suggested that he was not worried that Mr. Epshteyn, like a substantial number of other Trump lawyers, had become at least tangentially embroiled in some of the same investigations on which he was helping to defend Mr. Trump.

“Absent any solid indication that Boris is a target here, I don’t think it affects us,” Mr. Parlatore said.

As I’ve noted, DOJ almost certainly believes that Trump still has classified documents. DOJ almost certainly believes that the searches Parlatore did in November and December not only weren’t adequate, but were proven to be inadequate when his investigators found classified documents that had been moved back to Mar-a-Lago after the initial search.

They tried to obtain those documents by holding lawyers who had attested to searches in contempt back in December. Instead, Beryl Howell made them do more investigation first, culminating in what may be the last order she issued as Chief Judge ordering Corcoran to testify.

One possible outcome of today’s testimony is that someone finally gets held in contempt, someone finally risks jail time until such time as an adequate search of all of Trump’s properties is conducted. And that may be why Tim Parlatore chose this moment to announce his inclusion on the ever-growing lists of Trump lawyers who may be witnesses or may be subjects of his investigations.

Update: Going through old posts and thought I’d link this one from August 23, 2022, where I noted that two of Trump’s lawyers were either witnesses or co-conspirators in the stolen document case. It seemed prescient then, but jeebus, the number turns out to be at least 11 by now.

When I wrote up initial reports of Christina Bobb’s first interview with investigators in the stolen documents case, I noted,

Bobb’s testimony will clarify for DOJ, I guess, about how broadly they need to get Beryl Howell to scope the crime-fraud exception.

Here we are five months later, and Beryl Howell has indeed, very predictably, scoped out the crime-fraud exception for Evan Corcoran’s testimony and the DC Circuit has refused Trump’s request of a stay to fight that ruling.

In fact, ABC reported a list of the things that Judge Howell ruled Evan Corcoran must share with Jack Smith’s prosecutors, the scope I predicted she’d draw up five months ago.

As you read it, keep in mind that DOJ likely suspects that Trump still is hoarding classified documents. I say keep that in mind, because these questions will help to pinpoint the extent to which Trump or Boris Epshteyn masterminded efforts last June to hide classified documents, which may help DOJ to understand whether someone has masterminded efforts to hide remaining classified documents since.

The six things Corcoran has been ordered to testify about, per ABC, are:

1. “[T]he steps [Corcoran] took to determine where documents responsive to DOJ’s May subpoena may have been located”
2. Why Corcoran “believed all documents with classification markings were held in Mar-a-Lago’s storage room”
3. “[T]he people involved in choosing Bobb as the designated custodian of records for documents that Trump took with him after leaving the White House, and any communications he exchanged with Bobb in connection with her selection”
4. “[W]hether Trump or anyone else in his employ was aware of the signed certification that was drafted by Corcoran and signed by Trump attorney Christina Bobb then submitted in response to the May 11 subpoena from the DOJ seeking all remaining documents with classified markings in Trump’s possession”
5. “[W]hether Trump was aware of the statements in the certification, which claimed a “diligent search” of Mar-a-Lago had been conducted, and if Trump approved of it being provided to the government”
6. What Corcoran “discussed with Trump in a June 24 phone call on the same day that the Trump Organization received a second grand jury subpoena demanding surveillance footage from Mar-a-Lago that would show whether anyone moved boxes in and out of the storage room

Questions 1 and 2 are a test of whether Corcoran wrote the declaration that Christina Bobb signed on June 3 in good faith. Given the fact that boxes were moved out of the storage room, it’s quite plausible that Corcoran did do a good faith search of the remaining boxes. So the answer to question 2 — why did he think all the classified documents were in that room? — will help pinpoint who has criminal liability for that obstructive act. Someone told him only to search the storage room and he took Jay Bratt to that storage room on June 3 and falsely (but likely unwittingly) told them that’s where all the classified documents would have been stored. Who told him that was true?

Questions 4 and 5 go to Trump’s awareness of the attempt to mislead DOJ on June 3. Did he know about the signed certification, and if so was Trump aware that Corcoran and Bobb had, between them, claimed the search of a storage room out of which boxes had been moved amounted to a diligent search? Since he reportedly ordered Walt Nauta to move boxes out of there, does that mean he knew the declaration was false?

Question 3 is more interesting though: The fact that Corcoran wouldn’t sign the certification himself is testament that he had doubts about the search he did himself or, at least, that someone knew enough to protect him. Per reporting from after she spoke to investigators the first time (see this post), Boris Epshteyn contacted Bobb the night before the search to serve the role she played.

She told them that another Trump lawyer, Boris Epshteyn, contacted her the night before she signed the attestation and connected her with Mr. Corcoran. Ms. Bobb, who was living in Florida, was told that she needed to go to Mar-a-Lago the next day to deal with an unspecified legal matter for Mr. Trump.

When she showed up the next day, Bobb complained that she didn’t know Corcoran, which is one of the reasons she wisely caveated the document before signing it.

“Wait a minute — I don’t know you,” Ms. Bobb replied to Mr. Corcoran’s request, according to a person to whom she later recounted the episode. She later complained that she did not have a full grasp of what was going on around her when she signed the document, according to two people who have heard her account.

And Bobb wasn’t the custodian of records. Someone decided to have someone unaffiliated with the Office of the Former President sign as custodian of records, thereby protecting Trump’s legal entity — the one served with the subpoena — from liability for the inadequate response.

She was, however, someone who — like Boris Epshteyn — likely has significant exposure for January 6, and even (per her testimony to January 6 Committee) witnessed Trump’s call to Brad Raffensperger.

But either Corcoran knew or suspected his own search was inadequate, or someone built in plausible deniability for him. DOJ may find out which it was on Friday.

As noted, this may help DOJ understand what has happened since Bobb’s initial testimony. Reports of her testimony came in the same days as initial reports that DOJ had told Trump they believed he still had classified records. Both Bloomberg and NYT described the tensions that arose among Trump’s lawyers as a result, with some objecting to any further certification.

Christopher M. Kise, who suggested hiring a forensic firm to search for additional documents, according to the people briefed on the matter.

But other lawyers in Mr. Trump’s circle — who have argued for taking a more adversarial posture in dealing with the Justice Department — disagreed with Mr. Kise’s approach. They talked Mr. Trump out of the idea and have encouraged him to maintain an aggressive stance toward the authorities, according to a person familiar with the matter.

That was in October. In November, Merrick Garland appointed Jack Smith. In late November, Trump hired Tim Parlatore to do the search Kise had recommended over a month earlier. The search found, and returned to DOJ, two documents with classification markings found in a separate storage facility.

But even as Trump lawyers were dribbling out details of the result of that search, they were hiding at least two more details: that a Trump aide had been carting around — and had uploaded via the cloud — White House schedules that included once-classified information. And, Parlatore’s searchers had discovered, there was another empty classified folder on Trump’s bedside table that hadn’t been discovered in the August search. Whether willful or not, both likely show that additional documents with classification markers were brought back to Mar-a-Lago after the August search.

Since the time in December DOJ tried to hold Trump in contempt for refusing to comply with the May subpoena, they have chased down the box of schedules and the computer to which they were uploaded and subpoenaed the extra empty classified folder. They have interviewed the people who did the search, as well as the lawyers that Boris Epshteyn was giving orders. Significantly, they also interviewed Alina Habba, whose own search of Mar-a-Lago for documents responsive to Tish James’ subpoena had obvious gaps, most notably the storage closet full of documents where a bunch of classified documents were being stored. And finally, after five months, they will answer the questions first made obvious after Bobb’s initial interview in October: what Trump told Corcoran to get him to do an inadequate search.

Which brings me to Question 6: What Trump said to Corcoran after he received a subpoena for security footage that Trump knew — but Corcoran may not have known — showed Walt Nauta moving boxes that would thereby be excluded from the search Corcoran had done in May and June. Since this was a call, it may well be one of the things about which Corcoran took notes or even a recording that he later transcribed. Also recall that there was a discrepancy as to the date of the subpoena (as well as whether Trump greeted Jay Bratt and others when they were at MAL) when the search was originally revealed last year, a discrepancy that led me to suspect DOJ first served a subpoena on Trump’s office and only then served a subpoena on Trump Organization. June 24 may have been the first date that Corcoran became aware that his representations about the search for documents was incomplete.

Here’s the point, though. Trump played a shell game in advance of the search that Corcoran did last summer. Alina Habba’s declaration, on its face, reflects a shell game. There’s reason to believe — given the box containing additional documents marked classified and the empty classified folder — that Trump played another shell game when Parlatore’s investigators searched in November and December. And Howell reportedly also approved a crime-fraud waiver for Jennifer Little, a lawyer representing Trump in conjunction with the Georgia investigation.

If Corcoran does testify tomorrow, it may crystalize DOJ’s understanding of that shell game, at least. Not only will that help DOJ understand if another shell game, one involving Parlatore, managed to hide still more documents in November and December. But it may help to understand any other shell games Trump engaged in in NY and GA.

It may also finally provide the basis to hold Trump in contempt for withholding further documents.

From emptywheel, 4/2: Thanks to the generosity of emptywheel readers we have funded Brandi’s coverage for the rest of the trial. If you’d like to show your further appreciation for Brandi’s great work, here’s her PayPal tip jar.

There was a moment outside of the Capitol on January 6, 2021, when Proud Boy Travis Nugent turned to Proud Boy elder and leader in the neofascist network, Ethan Nordean, and asked him: “Are we doing this?” 

Then, Nugent testified this week at the seditious conspiracy trial unfolding in Washington, D.C., Nordean said nothing. But he watched Nordean move toward the Capitol and ahead to barriers thinly held—for that moment—by a scattering of police already wildly outnumbered by the crowd. 

“You felt shocked but you still knew you were not supposed to go past the barriers?” Assistant U.S. Attorney Conor Mulroe asked Nugent, both of his hands resting on the edge of the courtroom podium as he leaned in toward the witness on Monday. 

“Correct,” Nugent replied. 

His voice was quiet, as it so often was as he testified throughout the day. 

“So you fell back on the chain of command?” Mulroe said. 

At almost a whisper though Nugent’s mouth was near the microphone in the witness box, he testified: “Fair statement.”

And then, Mulroe elicited, Nordean just looked at Nugent. Two years after that day, Nugent struggled to recall “exactly what totally came out” in that moment between the men as they stood in a thick crowd surrounding the Capitol. But he did remember Nordean looking at him, unresponsive to his question: Are we doing this?

When Mulroe asked Nugent whether he remembered asking Nordean a more specific question next— “are we going in?”—Nugent wasn’t sure. 

But he knew he didn’t need to be told to follow when Nordean moved ahead and though he agreed with the prosecution that he is the final arbiter of his own decisions, he still rested his hand on Nordean’s shoulder as they moved together toward metal fencing that would very soon be ripped from concrete and broken into pieces. 

Tensions in the crowd were high, he recalled. Nugent remembered feeling uneasy. 

Yes, he said, it was true that he asked Nordean to get on a megaphone and try to calm the crowd. Yes, he said, he even went so far as to approach a police officer on site and request to borrow that officer’s bullhorn. Yes, he agreed, if they could just get their hands on that megaphone and have a Proud Boy speak to the masses, a person the crowd would respect because this was a crowd that respected and adored Proud Boys, there might be a chance to turn the temperature down. 

But that chance didn’t come. When Nugent was interviewed by the FBI on May 5, he told them Nordean wouldn’t listen to him. 

“I don’t think that was my exact words but it was along those lines,” he told the jury Monday. 

He would go no further with Nordean and he didn’t enter the Capitol on Jan. 6. He said “correct” when asked if he understood that day that if he went ahead, he would be breaking the law. Nugent said he understood their presence interfered with police. But, he said, he didn’t know at the time what politicians were doing inside the Capitol. 

Nordean stayed after Nugent left and to his knowledge, Joseph Biggs, one of Nordean’s co-defendants in the now ten-week-long trial, stayed too. 

Nugent has not been charged with any crimes and it was the Proud Boys who called him as their witness with the aim of having the Washington state, fourth-degree Proud Boy tell the jury only of how there was no plan on Jan. 6 to stop the certification and that members of the group showed up merely to air their frustrations and support Donald Trump’s grievances, as well as their own, over a “stolen election.”

When Nugent came under direct from Nordean’s defense attorney Nick Smith, his answers were brief and amenable to those core arguments, even if, at times, it seemed any rehearsal or preparation for his testimony may have already gone stale in Nugent’s mind. 

As a member of Henry Tarrio’s specially-created Ministry of Self Defense text channel where Proud Boys frequently discussed Jan. 6, and as a member of the group’s Boots on the Ground chat just for those Proud Boys on-site on Jan. 6, Nugent was privy to communications that prosecutors have said are integral to the alleged conspiracy to stop the certification. 

When Smith questioned Nugent, he steered clear of what the witness may have seen in those communications, keeping his questions generic and short-lived. 

Nugent did tell Smith, however, that when he met with Proud Boys at the Washington Monument before heading to the Capitol on Jan, 6, he didn’t remember what was said as the group congregated. Present there were defendants Biggs, Nordean, and Zachary Rehl. 

He had partied the night before with Nordean and other Proud Boys at an AirBnB, he testified. A lot of people drank heavily. The next morning hangovers were in abundance. He told Smith he couldn’t recall what was said on the night of the 5th but there were discussions, he said, about what would happen the next day. 

The group met at the Washington Monument and by the time they had moved from the Monument to a smattering of food trucks near the Capitol to eat, Nugent told Smith the Proud Boys, and in particular, Ethan Nordean, had said repeatedly they just wanted to go back to their hotels or AirBnBs to relax for the day. A conversation ensued among Proud Boys at the food trucks too but Nugent told Smith he couldn’t recall whether it was then that a “decision was ever really made” about where to go next. 

He described it as “chaotic” and struggled to pin down particulars. The situation, he offered, “devolved” quickly. 

When Proud Boys went to the nearby Peace Circle next, Smith didn’t work to fish out specifics. 

He, like Mulroe, elicited that Nugent was “shocked” when people started going over barriers at the Peace Circle and prompted by Smith, Nugent said it felt “spontaneous.” He told the jury, he “just didn’t know it was going to happen.” People were taking pictures of them that day wherever they went and although Nugent and Nordean stayed close to each other and often conversed, Nugent couldn’t say whether Nordean brought up using force at the Capitol as they marched toward it. 

“I kind of perceived the whole thing as a photo op,” Nugent said. “A publicity stunt.” 

 He later told Smith Proud Boys were “pushed up” by the crowd into areas he knew they shouldn’t be. 

Like the cows, pigs, and chickens that Nugent raises, he said, it was a “herd mentality.” 

Then, touching on another core theory from the defense—that Proud Boys were incited not the other way around—Nugent testified that a man who introduced himself as a pastor had approached Nordean and asked Nordean to go through the barriers. Nugent recalled Nordean had “basically denied” the request but Nugent had no further particulars. 

When Smith asked him about a rowdy man in a star-spangled jacket—identified as Proud Boy Chris Quaglin of New Jersey—who appeared to be in an altercation with police, Nugent in one breath told Smith he could see Nordean grabbing the man as if to stop him but in another breath, Nugent testified that he couldn’t get a clear read on what was actually happening. It was just his perception, he said, that Nordean was trying to stop the man. Quaglin now faces multiple charges, including assault. He has pleaded not guilty. 

After the 6th, Nugent stayed in the Proud Boys text channels for a day or two. He suggested to members that the chats be deleted. He was worried, he testified, that “antifa groups” would infiltrate the chats and doxx him or others. He was “highly doxxed,”he said. 

Under the friendly glow of direct examination, Nugent, in sum, aligned himself with the defense’s narrative: Proud Boys weren’t at the Capitol on Jan. 6 to incite violence or to force their will. 

But once Mulroe began asking the questions, evidence emerged of Nugent celebrating violence and in particular, the violence exacted by the Proud Boys.

That evidence included an illustration of Proud Boys strangling people, the animated eyes of their victims bulging. This was found on Nugent’s Google drive. He admitted, there were times he also celebrated the aggressive use of force. He admitted that violent propaganda videos showing Proud Boys clashing at events or at rallies or in the streets were effective recruitment tools. And when Mulroe asked Nugent if Proud Boys, like himself, recruited people aggressively to “attack people he didn’t agree with,” Nugent affirmed. 

And key to the prosecution’s argument that Proud Boys developed a growing disdain for law enforcement in the run-up to Jan. 6 that fueled the intensity of the violence that day, Mulroe showed jurors a series of texts where Nugent urged Proud Boys less than a week after the 2020 election that they couldn’t allow cops “to become social justice warriors.” 

Most cops were “good dudes,” Nugent wrote on Nov. 9, 2020, but if they chose to “play games” then it would be “time to play.” And if necessary, Proud Boys would turn their back on police, he added. Other text messages showed Nugent discussing how Proud Boys shouldn’t “wear colors” or their traditional black and yellow, at events. He testified this could help them conceal their identities in public. 

This direction was one Tarrio had handed down to members for pro-Trump rallies in November and December 2020. And the same directions came down in the group’s “New Ministry of Self Defense” channel on Jan. 6, 2021. 

That channel was created after Tarrio was arrested on Jan. 4 for burning a Black Lives Matter banner and included many of the same participants as the original Ministry of Self Defense chat like Biggs, Nordean, and Rehl. Nugent testified on cross that he told Proud Boys the original chat should be nuked. They knew police had Tarrio’s phone and they worried, he said, that chats could potentially come into law enforcement’s hands.

With Tarrio arrested, it was Proud Boy Charles Donohoe who told the “new” ministry on Jan. 6 what to do, where to meet, and importantly, not to wear colors. Less than a week before that text from Donohoe, jurors saw messages where Nugent told Proud Boys “the big thing with this event is we need to get everyone focused on the goal of the event and not getting Proud Boys their fourth [degrees].” 

In another Ministry chat dubbed “MOSD Main 2,” Nugent worked to fill the vacuum left by Tarrio’s arrest. It wasn’t his idea, he testified, but he told the group they needed to fall under Nordean. People looked up to Nordean, he said in court this week. He was a leader. It was fair, Nugent agreed, to describe Nordean as having a “heroic” reputation among Proud Boys because of his fighting skills. Namely, for his “punch heard round the world.” (Prosecutors were unable to persuade presiding Judge Timothy Kelly to admit footage featuring the punch that made Nordean famous among the far right.)

Nugent wasn’t a hero like Nordean, he testified. He was a “nobody.” 

“I’m nobody but I’m doing what I can to help my brothers,” Nugent wrote in a text on Jan. 5 in the MOSD Main 2 chat. 

They were “working a plan,” Nugent wrote. They would meet in the morning and continue on with the plan, he added. Things had clearly “went south” after Tarrio’s arrest, Nugent wrote, “but they are continuing on with it tomorrow.” 

When Mulroe asked Nugent about his use of the word “they,” Nugent said it was a “grammar mistake.” 

Though he had told Smith he couldn’t remember much, and in particular, the meeting at the AirBnB on the eve of the attack, he told Mulroe “yes” when asked if they discussed tactics for Jan. 6, including using radios, breaking into small teams and following the command’s leadership. 

“Even if you didn’t fully understand the plan, you were supposed to follow?” Mulroe asked.

“Fair statement, yeah,” Nugent replied. 

In addition to Nugent’s testimony, jurors also heard from defense witness Michale Emanuel aka Michale Graves, a former singer from the punk band The Misfits. Graves became a Proud Boy in 2020 and traveled to D.C. for Jan. 6 though he didn’t march on the Capitol. 

The only plan Graves could speak of was a plan to play a concert at an AirBnB on Jan. 5. That concert was moved to Jan. 6 after Tarrio was arrested. On the 6th, Graves sang the National Anthem at a Latinos for Trump rally in the morning, and then, he testified, he and the Proud Boys had considered going back to the AirBnB around 3 p.m. to hang out before Graves’ nighttime performance. 

Graves told defense attorneys on direct he wanted the concert because it would “keep people off the street.” Yet, despite all testimony about the concert, he told Assistant U.S. Attorney Jason McCullough on cross, he and the Proud Boys didn’t communicate on Jan. 6, really, at all. The only text he sent to Nordean on Jan. 6 was a singular “I’m safe” long after the Capitol had been breached. 

There was no apology for missing the show and no discussion otherwise found. 

When McCullough began grilling him about his conduct on social media, Graves grew defensive. He had posted messages online saying Proud Boys were having lunch when the Capitol was breached. Graves said he may have read that in a media report. 

“And you told the public that Nordean and Biggs did nothing wrong?” McCullough asked. 

Graves said so online, but in court, he conceded that maybe they had trespassed. 

“What I know is a fact is there was not some elaborate plan to take over the Capitol on Jan. 6,” he said before acknowledging that he was never part of the Ministry of Self Defense chat nor Boots on Ground chats. 

On Tuesday, the defense’s third witness, Proud Boy photographer Eddie Block took the stand, his service dog, a St. Bernard named Donald J. Trump, at his side. 

Block told defense attorneys that Proud Boys didn’t come to Washington on Jan. 6 with plans for violence or to interfere with police or the certification. 

“No sir,” he told Nordean’s attorney Nick Smith, “we were just there to get our voices heard.” 

Proud Boys only engage in violence when they need to self-defend, he said. They only brought radios to D.C.  on Jan. 6 purely because they were worried about being able to “scout antifa out” and warn each other if “antifa” were spotted. From the stand Tuesday, Block said he believes antifa had a large presence at the Capitol on Jan. 6. This has not been supported by any credible evidence. Block told jurors it was a “gut feeling.” 

A self-proclaimed documentarian, Block filmed Proud Boys, including the defendants, marching on the Capitol on Jan. 6. He thought they would get as close as they could to the barriers but not past them, he said. Appearing to play things down further, Block said for two weeks before Congress met to certify the election, “everyone was saying you gotta storm the Capitol” on social media. “Normies” would use that phrase all the time, he added. 

Prosecutors have argued that “normies” and Proud Boys alike were tapped by the defendants on Jan. 6 as “tools” of their alleged conspiracy. In effect, prosecutors have argued Proud Boys needed more muscle and more numbers than they had available to stop the certification and knew it. 

Like Nugent, Block testified that Jan. 6 was a full day of photo opportunities for the Proud Boys. Block fawned over Joseph Biggs, calling him a hero and telling jurors on Tuesday anyone would want their picture taken with the former InfoWars contributor because he had won a Purple Heart. 

As Smith guided Block through video clips from Jan. 6, the same arguments emerged: there were mysterious men in the crowd who appeared to speak to the defendants before the breach kicked off. (Ray Epps has been pointed to indirectly and directly with zeal by defense attorneys over the course of the trial but that conspiracy theory has long been debunked.) 

There was no plan, Block said, not to stop Congress and not to interfere with police. 

Under cross-examination by Assistant U.S. Attorney Erik Kenerson, Block first said planning was non-existent and that no one prior to 9:45 a.m. on Jan. 6 invited him to film the Proud Boys. Nordean didn’t ask nor did Tarrio, he testified. They just knew he was going to be there and they knew, he said, “wherever I am, there’s cameras.”

Ultimately, he did livestream from Washington on Jan. 6. He told prosecutors he’s not made much money on his footage from that day. Unprompted, Block said he averages about $40 a month from his channel featuring Jan. 6 footage on YouTube. 

“It’s not like I’m making money on this,” he said. 

But one of the ways he could make money, Kenerson pressed, was to get his name out there.  

Agreeing easily with the prosecutor, Block replied: “That’d be correct.” 

There was nothing wrong with filmmakers or videographers trying to earn a buck for their work, Kenerson argued. Then the prosecutor shared information with jurors they might not otherwise have heard. Block drove across country from Fresno, California to Washington, D.C. to testify. He live-streamed that too and set up a fundraiser online. 

“And one of the things you said was, if you got $1,000, you would put your dog in a Donald Trump vest?’ Kenerson said. 

“Yeah,” Block said. “It’s his name. Donald J, Trump. I call him Donnie because I live in California and if I say Trump in public, someone may attack me.”

Ever the self-proclaimed adherents of self-defense, Block told jurors that Proud Boys didn’t start fights, they finished them. 

Testing that claim, Kenerson brought Block’s attention to footage from Portland, Oregon. A man with Proud Boy garb approaches a van in a parking lot. There are several men surrounding the vehicle before suddenly, a Proud Boy starts unloading a stream of chemical spray with some sort of paintball-gun-looking apparatus into the van, overwhelming the driver and forcing the person to drive off road. 

As the video played, Block testified unprompted. Again.

The van had come to the location to attack Proud Boys. The government was taking things out of context, he said.

“You’re making it look like we did something to those people. I saw the man pull in there with a can of mace,” Block said. “What were we supposed to do?” 

“You don’t start fights?” Kenerson volunteered. 

‘Right,” Block said. “We’re finishing it.” 

But at another time, it didn’t appear Proud Boys were only about “finishing” fights. Pulling up a series of text messages from Dec. 13, 2020, Kenerson asked if Block had once “concocted” a plan to lure “antifa” so Proud Boys could ambush and assault them. 

In the text chain, Block appeared livid that Proud Boy Jeremy Bertino had been stabbed the night of the Million MAGA March in D.C. just one day earlier. Bertino has since pleaded guilty to seditious conspiracy and testified on behalf of the prosecution last month. 

“I don’t care. I say we let me be the sacrificial lamb next time,” Block wrote. “I’ll sneak in. Get their attention on me.” 

Block, who is disabled, had 60 operations by that point and told Proud Boys that he could “take the pain.” 

“You don’t fuck with my brothers like that,” he groused. 

But he told jurors, at first, no one ever took him up on the offer.

Then Kenerson showed him where a Proud Boy identified by the handle, “RC Proud Nate” told Block: “Be live while your scooter suddenly dies right while the exact street corner you are crossing is visible.”

Block replied: “I’ll just say, don’t worry folks, I’ll catch up like I did last night.” 

Block’s testimony will resume on Wednesday at 9 a.m. and it will be left to the defense to attempt damage control after two hard days where witness testimony has withered under the Justice Department’s scrutiny. 

Update: Exhibits from Nugent’s testimony added.

Update: Correction – an earlier version of this story stated the van video from Oregon was from years prior to Jan. 6. It was from August 2021.

 

From emptywheel, 4/2: Thanks to the generosity of emptywheel readers we have funded Brandi’s coverage for the rest of the trial. If you’d like to show your further appreciate for Brandi’s great work, here’s her PayPal tip jar.

The winding road to a verdict in the Proud Boys seditious conspiracy trial has been rocky but after 39 grueling days featuring bitter objections, delays, and a steady stream of motions for mistrial by the defense, a crucial milestone in the historic case was finally reached after prosecutors called their last witness last week. 

Starting Monday, the defense is expected to take the reins and it will be left to them to attempt an unraveling of weeks of evidence and testimony from nearly two dozen government witnesses including former Proud Boy, Jeremy Bertino, who pleaded guilty to seditious conspiracy already and had intimate ties to the ringleader of the neofascist network now on trial, Henry “Enrique” Tarrio. 

Soon, it is expected that Tarrio will take the stand and offer his take on the insurrection at the U.S. Capitol. His co-defendant, the one-time Infowars contributor Joseph Biggs—who seemingly never met a microphone he didn’t want to get in front of—is also expected to testify. Whether their alleged seditious cohorts Ethan Nordean, Zachary Rehl, and Dominic Pezzola will risk joining them, is unclear for now. 

In a trial that has been anything but a one-two punch for the Justice Department, it will be the next (estimated) two to three weeks of proceedings that could ultimately make or break the historic case for prosecutors. 

When the Proud Boys trial opened on January 12,  assistant U.S. Attorney Jason McCullough presented the thrust of the government’s argument to jurors. On its face, the premise was simple enough: Tarrio, Biggs, Nordean, Rehl, and Pezzola coordinated unflinchingly to stop the certification of the 2020 election by sheer force. 

Motivated by Donald Trump’s lie of a “stolen” election and fueled by the fear of a societal collapse triggered by any number of perceived boogeymen (namely, leftists, antifa, communists, and Joe Biden to name a few), McCullough argued the defendants planned to stop the certification by recruiting scores of people—some Proud Boys, some not—to aid them in their coming revolution so when the time for Congress to certify the results of the election finally arrived on Jan. 6, they were ready to strike. 

Witting and unwitting midwives of their revolt alike were the “tools” that Proud Boys needed to help them physically breach police lines, push past barriers, and get inside the Capitol, the prosecution has argued. Some of those “tools” of the conspiracy were members of the organization and others, as government witness and former Proud Boy Jeremy Bertino testified, were “normies” or just anyone who supported Trump and showed up at the Capitol willing to let loose.

From Tarrio, who allegedly oversaw the storming of the U.S. Capitol from afar while cheering it on in private and public alike; to Biggs, Nordean, and Rehl, who whipped people into a frenzy as they stalked to, around, and in the Capitol; and to Pezzola, who prosecutors say smashed apart a window that ultimately allowed a stream of rioters to flow inside the building; the government alleges each defendant played their specific role in leading or executing the greater attempt to upend democracy. 

The Proud Boys as an organization is not on trial and the government has been adamant in defending this point in the last ten weeks of proceedings, always leaving a wide berth for the First Amendment to protect the group’s virulent expression of its “western chauvinist” me-first, America-first, men-first, “fuck-your-feelings” philosophy.

Much energy has been expended by the defense on claims that Tarrio and his co-defendants only stand trial because they are the convenient “scapegoats” of a politically corrupt judicial system that has found them an all-too-easy target when holding the main culprit of Jan. 6 to account, former president Donald Trump, is too challenging.

A week after the second anniversary of the Capitol attack, Tarrio’s attorney Sabino Jauregui introduced himself to the jury for the first time with a concession and then a question: “Jan. 6 was horrible, we agree. But was Enrique responsible?” he said.

The defendants are not on trial for their internal communications, unsavory or steeped in racist misogyny they may be. Nor are they facing charges for the overheated and often paranoid nature of their engagements leading up to and on Jan. 6. And indeed, Donald Trump is not on trial in this case though at one point defense attorney Norm Pattis, for Biggs, did launch a stalled attempt to subpoena Trump for testimony. 

Responsibility. Time and place. Motive. Intent. These have been the prosecution’s focus for its case in chief and through the testimony of Capitol police officers, FBI agents, forensic analysts, and two former Proud Boys themselves. it has been a sweeping case for the government to lay out amid a battery of objections from its multi-defendant opponent. The defense has often spent time twisting itself into knots litigating and re-litigating the admissibility of certain pieces of evidence with little fruit to bear. The central theme to the objections, regardless of the defense attorney, is that the government’s case is overblown and unfounded. For others, like Pezzola’s attorney Roger Roots, or Tarrio’s attorneys, Sabino Jauregui and Nayib Hassan, there have been more regular winks, nods, or at times, outright assertions, during questioning that the FBI has cooked up a sort of deep-state plot against innocent if now rowdy protesters like the Proud Boys. 

Drawn-out fights over evidence have often prompted trial days to begin with jurors forced to enter or reenter the courtroom late or after waiting for a long period of time. 

One recent snarl midday was triggered by what had surfaced in a Proud Boys elder chat known as “Skull and Bones.” It showed chat members referencing Nazi propaganda or users with handles featuring Nazi-affiliated phrasing. Tarrio’s attorney jumped on a motion for mistrial when a text chain appeared to show a “tool” of the conspiracy “Chris Cannon PB” sharing that Nazi propaganda video with Tarrio on Jan. 6. It featured World War II footage of Adolph Hitler saluting victorious Nazi soldiers, among other images from the period. Though jurors saw the video and the surrounding conversation, the defense managed to convince presiding U.S. District Judge Tim Kelly to strike it from the record and instruct jurors to ignore it. 

Nonetheless, the jury saw shades of the world Tarrio operated in and the people he engaged with. That message was sent to Tarrio after the first breach on Jan. 6 and after he had already sent out the message: “make no mistake…we did this.” 

In that same private elders chat, Cannon asked Tarrio: “Are we a militia yet?”

“Yup,” Tarrio replied in a voice note.

Where early weeks of the trial were aimed at establishing the Proud Boys patterns of behavior that trended towards violence at political rallies before the 6th or tracking things like the group’s internal rancor as Trump’s bid to stay in power failed in the courts, more recently, it has been the prosecution’s “tools” theory that has dominated the jury’s attention. 

One of those many alleged “tools” utilized by the Proud Boys on Jan. 6 was former police officer and Proud Boy Nathaniel Tuck of Florida. Tuck appeared in a video after the breach, taking what seems to be a celebratory group photo outside of the Capitol. He appears with defendants Biggs and Nordean and other Proud Boys who marched from the Washington Monument that morning to the Capitol that afternoon, per a previous discussion had among members of the Proud Boys Ministry of Self Defense. 

Tuck makes what appears to be a Nazi “heil” gesture in the footage

The prosecution, as it turned out, didn’t focus on that gesture, letting the images speak for themselves. Instead, the jury’s attention was brought to Tuck’s greater alleged conduct and his association with the defendants on trial as one of many “tools.” 

The defense has rejected this legal theory vehemently, arguing, in short, that it is a roundabout way of achieving a conviction when evidence of a hard and fast plan to stop the certification is too attenuated. But as other sedition trials of Jan. 6 have shown, like the first Oath Keepers case with that ringleader Elmer Stewart Rhodes, the evidence of an explicit plan is not necessarily needed for a jury to convict on seditious conspiracy. 

The government’s argument that Proud Boys incited the mob to join their revolt may be sufficient. On Monday, when witness Travis Nugent is expected to testify for the defense, he is largely expected to tell the jury that Proud Boys had no plan at all. 

Persuasive evidence of a concrete plan or not, the prosecution has continually pointed to the disruptive element that Proud Boys brought to each site they marched through on Jan. 6. Police testified on at least two occasions in the last several weeks that before Proud Boys showed up, people were calm. It was the Proud Boys who got edgy. It was the Proud Boys who were ready for a fight and had been for months, the government contends. 

To that end, when Tarrio and “Chris Cannon PB” were texting about the deteriorating scene at the Capitol in the Proud Boys elder chat and Tarrio appeared to take credit for it, prosecutors showed jurors simultaneous surveillance video footage that shows defendant Joe Biggs, with  “tools” like Nate Tuck or others like Arthur Jackman and Eddie George. Prosecutors also presented footage of Biggs reaching the Senate chamber with some of these same men in tow. Jurors saw evidence of how Biggs was part of a breach on both the east and west sides of the Capitol, and how he entered the building twice that day. Other evidence, like call logs extracted from the defendants’ phones, showed Tarrio’s phone connecting to Biggs for just under a minute moments before the national ringleader posted “1776” on Parler. It was also around this time that some of the worst violence of the day by rioters against police would explode. 

As for Ethan Nordean, the government relied on extensive frame-by-frame footage from the very front lines of the mob where Nordean so often appeared with Biggs. Nordean was also seen often striking a defiant posture toward police that morning. Before noon, as he marched toward the Capitol he used a bullhorn and told anyone within earshot how police had “just took our boy in” and that police “gotta prove your shit to us now” or the people would “do your goddamn job for you.”

“Our boy” was Tarrio. Tarrio had been arrested two days before for the burning of a Black Lives Matter banner at a historic church in the district in December. 

Nordean’s rantings whipped people up, FBI agent Nicole Miller explained during testimony. Jeremy Bertino had said too that the “normies” looked at Proud Boys like “superheroes” and would follow wherever they went if they led the way. 

By the time Nordean, Biggs, and Rehl got to the Capitol on Jan. 6, Nordean had already told those gathered around him “We represent 1776” and urged people to support and defend the Constitution against enemies foreign and domestic. 

“Let us remind those who have forgotten what that means,” Nordean said. 

On the way to the Capitol, Nordean at one point brought the marching group to a halt and was overheard in footage saying they needed to wait so they could “link up with Alex Jones.” Roughly 15 minutes later and moments before reaching the Capital, Nordean was overheard in another recording saying, “we have a plan. They can adjust.” 

Prosecutors used video from the initial breaches to show Nordean and Biggs standing along metal inaugural fencing in a thick crowd. Both men were touching the fencing, at the very least, in the moments before the fencing was rocked back and forth and ripped up from its embedded posts in the concrete.

Other surveillance footage played for jurors has depicted defendant Zachary Rehl, a Proud Boy chapter president, entering through the same door Biggs had come in at one point. At an earlier point, when he is outside, he is in proximity to Dominic Pezzola and it was around this time that Pezzola was, prosecutors allege, forcefully stealing a police riot shield away from a clearly outnumbered officer. 

Pezzola would use that shield to smash open a window to the senate wing hallway. CCTV footage shows Pezzola later standing on the other side of that window, appearing to look through it for several moments while using what prosecutors and one FBI agent said appeared to be a radio. Pezzola’s defense attorney described his client repeatedly as a “lost puppy dog.” An FBI case agent testified that Pezzola looked like he was searching for someone or something before taking off toward the Capitol crypt. The same agent testified that Rehl would eventually go to the crypt too followed by “tools” of the conspiracy like Proud Boy Isaiah Giddings and others. The same agent said it was Rehl’s voice she was able to identify saying “fuck it, storm the Capitol” in a video from earlier that morning filmed at the Peace Circle just moments before a crowd surged past police barricades there. 

Many of the alleged “tools” tapped by the Proud Boys are awaiting trials all their own. Tuck, for example, has pleaded not guilty to a number of charges including obstruction. A motion hearing for Tuck and several alleged “tools” including Arthur Jackman, Paul Rae, Edward George, and Tuck’s own father, fellow Florida police officer, Kevin Tuck was continued from February to May 5. 

The Proud Boys have, by and large, defended themselves as a fraternity-style drinking club with unserious political aims or interests. They have worked to paint themselves as rough-and-tumble “patriots” akin to the Hells Angels who seek out brotherhood and camaraderie where they can mutually defend America ideologically and peacefully from an increasingly hostile woke population. 

But when the insurrection at the Capitol was over, the prosecution argued text messages showed the group’s real intent. Nordean, for one, was livid with Trump after he released a statement a week after the insurrection saying there was “never a justification for violence.” Where once Proud Boys had been jubilant, Nordean was now in the elders chat with Tarrio, expressing his fury. 

“Fucking disgusting, I’m so pissed,” Nordean wrote in one message.

“What a load of shit that whole thing has been. All Trump did was get us to reveal ourselves to the enemy. Basically butt naked and unarmed against this new regime…. Fuck Trump… Fuck that cocksucker,” he added. 

The defendants may likely present a case to the jury in the days ahead that largely relies on varied claims of victimization of one kind or another by Donald Trump, or assertions that the Proud Boys were good old-fashioned protesters made unwilling pawns of the “deep state” and its legion of spooks. 

A few weeks ago, Peter Baker marked the day that the January 6 investigation has taken as long as the time between the burglary to Nixon’s resignation.

I reacted poorly to Baker’s claim to offer perspective; even on past presidential investigations, he has been overly credulous. And there’s really no comparison between Watergate and January 6, particularly if one compares — as Baker does — time-to-resignation under a still-sane Republican party with time-to-indictment in the MAGAt era. The comparison offers no perspective.

But I thought I’d take Baker up on the challenge, because the Watergate investigation offers a worthwhile way to demonstrate several of the reasons why the January 6 investigation is so much harder. (I plan to make running updates of this post because I expect feedback, particularly from people who know the Watergate investigation better than me, will help me fine tune this explanation.)

Same day arrests

In Watergate, the burglars were arrested in the act of breaking into the DNC headquarters.

On January 6, the cops tried to (and in a relative handful of cases, did) arrest people onsite. But this is the challenge they faced when they tried: Every attempted arrest required multiple officers to focus on one individual rather than the mob of thousands poised to invade the Capitol; every arrest was a diversion from the effort to defend the Capitol, Mike Pence, and members of Congress, with a woefully inadequate force.

In the case pictured above, the cops made a tactical decision to let Garret Miller go. After assuring the cops he only wanted to go home, just 33 minutes later, Miller burst through the East door with the rest of the mob.

There wasn’t a great delay in arrests of January 6 rioters, though. Nicholas Ochs, the first Proud Boy arrested, was arrested on January 7 when his flight home from DC landed in Hawaii.

Q-Shaman Jacob Chansley was arrested on January 8. The first person who would be convicted of a felony by a jury, Guy Reffitt, was arrested on January 15 (his son had tipped the FBI about him before the attack). The first person known to later enter into a cooperation agreement, Jon Schaffer, was arrested on January 17. Miller, pictured above, was rearrested January 20. VIP Stop the Steal associates Brandon Straka and Anthime “Baked Alaska” Gionet — the former of whom did provide and the latter of whom likely provided useful information on organizers to earn misdeamenor pleas — were arrested on January 25 and January 17, respectively. Joe Biggs — now on trial for sedition and an utterly critical pivot between the crime scene and those who coordinated with Trump — was arrested January 20, the same day that Joe Biden would, under tight security, be sworn in as President, the same day Steve Bannon’s last minute pardon was announced.

Kelly Meggs, the Oath keeper who facilitated cooperation among three militias who was convicted with Stewart Rhodes of sedition last November, was arrested on an already growing conspiracy indictment on February 19.

In the first month then, DOJ had already taken steps in an investigation implicating those who worked with Trump. The table below includes the arrests of some of the witnesses who will have an impact on an eventual Trump prosecution. There are others that I suspect are really important, but their role is not yet public.

Trial delays

The Watergate burglars didn’t go to trial right away. They were first indicted on September 15, 1972, 90 days after their arrest. Those who didn’t plead out went on trial January 8, 1973, 205 days after their arrest. Steps that John Sirica took during that trial — most notably, refusing to let the burglars take the fall and reading James McCord’s confession publicly — led directly to the possibility of further investigation. Nixon wouldn’t even commit his key crimes for over two months, in March.

That’s an important reminder, though: the Watergate investigation would have gone nowhere without that trial. That’s unsurprising. That’s how complex investigations in the US work.

Many people don’t understand, though, that there were two major delays before anyone could be brought to trial for January 6. First, COVID protocols had created a backlog of trials for people who were already in pretrial detention and for about 18 months, would limit the number of juries that could be seated. Efforts to keep grand jury members safe created similar backlogs, sometimes for months. In one conspiracy case I followed, prosecutors were ready to supersede several defendants into a conspiracy in April 2021, but did not get grand jury time to do so until September.

To make that bottleneck far, far worse, the nature of the attack and the sheer volume of media evidence about the event led DOJ to decide — in an effort to avoid missing exculpatory evidence that would undermine prosecutions — to make “global production” to all defendants. That required entering into several contracts, finding ways to package up media that started out in a range of different formats, getting special protective orders so one defendant wouldn’t expose personal details of another (though one defendant is or was under investigation for doing just that), then working with the public defenders’ office to effectively create a mirror of this system so prosecutors would have no access to defense filings. It was an incredibly complex process necessitated by the thing — the sheer amount of evidence from the crime scene — that has made it possible to prosecute so many of the crime scene culprits.

Here’s one of the memos DOJ issued to update the status of this process, one of the last global updates. Even at that point over a year after the attack, DOJ was just starting to move forward in a few limited cases by filling in what remained of discovery.

The first felony trial coming out of January 6 was that of Guy Reffitt, which started on March 3, 2022, a full 420 days after the event. Bringing him to trial that was made easier — possible even — because Reffitt never went into the Capitol itself, so didn’t have to wait until all global discovery was complete, and because there were several witnesses against him, including his own son.

The delays in discovery resulted in delays in plea deals too, as most defense attorneys believed they needed to wait until they had seen all of the discovery to make sure they advised their client appropriately.

Lots of people thought this process was unnecessary. But the decision to do it was utterly vindicated the other day, as DOJ started responding to defendants claiming that Tucker Carlson had found video that somehow proved their innocence. As I noted, prosecutors were able to point to the video shown by Tucker Carlson that he said vindicated Jacob Chansley and describe specifically when an unrelated defendant, Dominic Pezzola, had gotten what was effectively Chansley’s discovery.

The footage in question comes from the Capitol’s video surveillance system, commonly referred to as “CCTV” (for “closed-circuit television”). The Court will be familiar with the numerous CCTV clips that have been introduced as exhibits during this trial. The CCTV footage is core evidence in nearly every January 6 case, and it was produced en masse, labeled by camera number and by time, to all defense counsel in all cases.3 With the exception of one CCTV camera (where said footage totaled approximately 10 seconds and implicated an evacuation route), all of the footage played on television was disclosed to defendant Pezzola (and defendant Chansley) by September 24, 2021.4 The final 10 seconds of footage was produced in global discovery to all defense counsel on January 23, 2023. Pezzola’s Brady claim therefore fails at the threshold, because nothing has been suppressed. United States v. Blackley, 986 F. Supp. 600, 603 (D.D.C. 1997) (“For an item to be Brady, it must be something that is being ‘suppress[ed] by the prosecution.’”) (quoting Brady v. Maryland, 373 U.S. 83, 87 (1963)).

While discovery in this case is voluminous, the government has provided defense counsel with the necessary tools to readily identify relevant cameras within the CCTV to determine whether footage was produced or not. Accordingly, the volume of discovery does not excuse defense counsel from making reasonable efforts to ascertain whether an item has been produced before making representations about what was and was not produced, let alone before filing inaccurate and inflammatory allegations of discovery failures.

You may think the thirteen month delay for discovery was a waste of time. But it just prevented Tucker Carlson from being able to upend hundreds of prosecutions.

Obviously, most of the trials that have occurred in the last year won’t directly lead to Trump. Some will. I’ve said for 22 months that I think the Proud Boy trial is critical — and that won’t go to the jury for another two or three weeks yet. There are a number of steps that, I suspect, DOJ has been holding on pending the results of that trial, because so much else rides on it.

The Stewart Rhodes trial was likely helpful. I’ve suggested DOJ may use Danny Rodriguez as a way to tie Trump and Rudy Giuliani to the near-murder of Michael Fanone on an aid-and-abet theory. And there are a few more sleeper cases that seem to have greater significance than what went on at the Capitol that day.

Update: On May 4, 2023, a jury found four of the five Proud Boy leaders guilty of sedition. This trial was an important precursor for other investigative steps.

The legal uncertainty

In the Nixon case, there were fairly well established crimes: burglary, and obstruction of a criminal investigation.

I won’t say too much on this point, because I already have. But in this case, prosecutors were (and undoubtedly still are) trying to apply existing statute to an unprecedented event. One law they’ve used with a lot of the rioters — civil disorder — was already being appealed elsewhere in the country when prosecutors started applying to the January 6. Since then its legal certainty has been all-but solidified.

Far more importantly, the way prosecutors have applied obstruction of an official proceeding, 18 USC 1512(c)(2), has been challenged (starting with Garret Miller–the guy in the aborted arrest photo above) for over a year. That’s precisely the crime with which the January 6 Committee believes Trump should be charged (I advocated the same before their investigation even started in earnest); but I’m not sure whether Jack Smith will wait until the appeals on the law get resolved.

Still, DOJ has spent a great deal of time already trying to defend the legal approach they’ve used with the investigation.

Update: On April 7, the DC Circuit reversed Carl Nichols, holding that 18 USC 1512(c)(2) does not require a documentary component. That opinion raised new questions about the meaning of “corrupt purpose” under the statute. The Circuit rejected Fischer’s request for a rehearing, clearing the possibility of an appeal to SCOTUS. On May 11, the DC Circuit heard Thomas Robertson’s challenge to the same statute. Its decision in that case will almost certainly be the first DC Circuit ruling on “corrupt purpose” under the statute.

The insider scoop

For all the delays in setting up the January 6 Committee, it (and an earlier Senate Judiciary Committee inquiry into Jeffrey Clark’s efforts to undermine the vote) got started more quickly than Sam Ervin’s committee, which first started 11 months after the burglary.

Yet it only took Ervin’s Senate investigators about two months to discover their important insider, whose testimony would provide critical to both Congressional and criminal investigators. On July 13, 1973, Alexander Butterfield first revealed the existence of the White House taping system.

For all the January 6 Committee’s great work, it wasn’t until her third interview, on May 17, 2022, before Cassidy Hutchinson began to reveal more details of Trump’s unwillingness to take steps against his supporters chanting “Hang Mike Pence.” Even Hutchinson’s remarkable public testimony on June 28, 2022, when she described Trump demanding that his supporters be allowed to enter the Ellipse rally with the weapons Secret Service knew them to be carrying, is not known to have provided the kind of Rosetta stone to the conspiracy that disclosure of Nixon’s White House taping system did. In later testimony, Hutchinson provided key details about a cover-up. And her testimony provided leverage for first J6C and then, in at least two appearances, grand jury testimony from Pat Philbin and Pat Cipollone, the latter appearance of which came with an Executive Privilege waiver on December 2, 2022, 23 months after the attack.

Cell-xploitation

This brings us to the biggest difference in the timeline. Once the Senate and prosecutors learned that Nixon had effectively wiretapped himself, it turned the investigation into a fight over access to those materials.

The parts of the draft Nixon indictment that have been released describe a fairly narrow conspiracy. The proof against Nixon would have comprised, in significant part:

• The report John Dean did disclaiming a tie to the break-in
• Proof of payments to Howard Hunt
• White House recordings, primarily from several days in March 1973, proving that Nixon had the payments arranged

That is, in addition to the James McCord confession and John Dean’s cooperation, any charges against Nixon relied on recordings Nixon himself had made, the import of which were made all the more salient with the disclosure of the 18-minute gap.

One thing likely made the January 6 prosecution easier: The sheer amount of data available to prosecutors using subpoenas. We have yet to see any of that with regards to organizers (though we know that Denver Riggelman, with far weaker subpoena power, was able to do a detailed map of ties between Trump, organizers, and mobsters).

There will undoubtedly be a great deal of evidence obtained from cloud companies. The only hint of this process we know about yet involves the emails from Jeffrey Clark, Ken Klukowski, John Eastman, and one other person, who is not a lawyer. DOJ had obtained emails from them with a warrant by last May. They have undoubtedly done the same for dozens of other subjects (beyond those arrested from the crime scene, where they have done so as well), but we won’t know about it until we see it in indictments.

But even that is not always easy. DOJ has spent seven months so far getting Peter Navarro to turn over emails from his Proton Mail account covered by the Presidential Records Act. Judge Colleen Kollar-Kotelly just issued an order requiring him to turn the emails over, but it’s not clear whether he’ll further obstruct this effort to simply enforce his normal record-keeping obligations.

But one challenge that didn’t exist fifty years ago makes prosecutors jobs much harder: the need to obtain and exploit individual cell phones to obtain encrypted communications — things like Signal and Telegram chats — not otherwise available. In Enrique Tarrio’s case, simply breaking into the phone took most of a year. In Rudy Giuliani’s case (his phones were first obtained in the Ukraine investigation starting on Lisa Monaco’s first day on the job, but the results would be available with a separate warrant here), it took a nine month Special Master review. In Scott Perry’s case, his speech and debate claims will be appealed to SCOTUS. The table below shows whose phones we know to have been obtained, including how long it took to exploit the phones to the extent that became public (It does not show known cloud content obtained; much of that remains secret.)

The point being, even for the Proud Boys and Oath Keeper cases, you had to get one phone, use it to get probable cause on the next guy, then get his phone to use it to get probable cause on the next guy. This process is very obviously at the stage where both Alex Jones and Roger Stone would be in prosecutors’ sights, as well as much of the fake elector plot. But that’s still several steps away from people like Mark Meadows, who would necessarily be involved in any Trump prosecution.

Privilege

When DOJ subpoenaed the two Pats last summer, multiple media outlets reported that subpoenaing the White House counsels was particularly “aggressive.”

Two top lawyers who worked in the White House under former President Donald Trump have been subpoenaed to appear before a federal grand jury investigating the events leading up to the Jan. 6, 2021, attack on the Capitol, people familiar with the matter said, in the latest sign that the Justice Department’s probe is entering a more aggressive phase.

Mr. Trump’s White House counsel Pat Cipollone and his deputy Pat Philbin received subpoenas in recent days seeking documents and testimony, the people said. [my emphasis]

But as coverage of, first, Mike Pence’s two aides and, then, the two Pats being compelled to testify about topics Trump had claim was privileged noted, it’s not actually a new or particularly aggressive thing to ask White House counsels to testify. Indeed, John Dean’s cooperation — the most important part of holding Nixon accountable — arose after he had gotten himself deeper and deeper into Nixon’s cover-up.

And in spite of the Nixon precedent that said there were limits to Executive Privilege, and in spite of the DC Circuit ruling that the import of investigation January 6 overcame Trump’s Executive Privilege claims, even with Congress, Trump has used — and DOJ has been obligated to navigate — a series of privilege claims to delay the investigation.

As I’ve noted, there are close to thirty key witnesses or subjects whose attorney-client claims have to be carefully addressed to avoid blowing both that case and those of any downstream investigation.

In the case of Scott Perry, DOJ has spent six months trying to get into his phone. That delay is not a sign of lassitude. On the contrary, it’s a sign they’re including subjects who very rarely get investigated in the investigation.

Update: On April 21 and 22, seven-plus months after DOJ seized his phone (which is often how long exploitation takes), Boris Epshteyn spent two days interviewing with Jack Smith’s prosecutors though not — at least by description — appearing before the grand jury. He played a key role in both January 6 and the stolen documents case.

Cooperating witnesses

According to this timeline, John Dean started cooperating on April 6, 1973, almost ten months after the arrest of the burglars, though just a few weeks after the day of Nixon’s crimes as alleged in the draft indictment.

As noted on this table, there were people who entered into cooperation agreements more quickly than that, but it’s not clear who of them will help prosecute those closer to Trump. As I keep noting, I’m really dubious of the value of Brandon Straka’s cooperation.

There are maybe 30 to 35 known known cooperators in January 6, but most only cooperated against their buddies, and most of those prosecutions didn’t much build prosecutions related to Trump.

This table only includes a few of the cooperating witnesses — the first (Schaffer, the nature of whose cooperation is still totally obscure), the dubious cooperation of Straka and, potentially, Gionet, the most important of at least five Proud Boy cooperators, Jeremy Bertino, and the most important of at least eight Oath Keeper cooperators, Joshua James.

James, along with a few of the other Oath Keeper cooperators, might help prosecute Roger Stone. But there is no one on this list who has the goods on Trump, like John Dean did. No one even close.

That said, we wouldn’t necessarily know if someone closer to Trump were cooperating. Even some people who are secondary cooperators remain entirely obscure, both that they are cooperating, and the extent of their knowledge. I suspect several people are cooperating — I even have specific people in mind, based on other details. But we won’t know anytime soon if someone has flipped on Donald Trump.

And given the ferociousness of his supporters and the aggressiveness of Trump’s obstruction that’s a good thing.

Update, May 26: I’ve updated the table below to reflect the Oath Keeper sentences and the Proud Boy verdict.

As I noted, Judge Beryl Howell ended her tenure as DC’s Chief Judge yesterday decisively, ruling that Evan Corcoran must testify about topics she has found to be crime-fraud excepted.

By dint of age and tenure, Howell was appointed Chief Judge just in time to preside over the most remarkable set of investigations against a sitting and former President: the Mueller investigation and certain follow-on investigations, the January 6 investigation, and the stolen documents investigation.

And now Jeb Boasberg gets to pick up her work. Like Howell, he’s an Obama appointee; he already did a stint presiding over the FISA Court.

Howell’s decision requiring Corcoran to testify elicited all sorts of superlative language about the import of the decision. I’ll return to the number of other Trump lawyers against whom Howell has already approved legal process. The Corcoran decision really is not that unusual in the twin Jack Smith investigations. Or even in the other grand juries over which Howell has presided.

Indeed, the fruits of a warrant Howell approved on August 1, 2017 as part of an investigation into suspicious payments (especially those from Viktor Vekelselberg) to Michael Cohen’s Essential Consultants’ bank account, will likely yield Donald Trump’s first criminal indictment next week. Referrals of part of the resulting investigation to SDNY led to Cohen’s 2018 prosecution, including on the hush payments scheme. NYC has started making security preparations for Trump’s arrest on the same campaign finance scheme next week.

To repeat: a fairly uncontroversial decision Howell made six years ago — to approve the first of a series of warrants targeting Trump’s personal lawyer, Michael Cohen — will have played a part if and when Alvin Bragg indicts Trump next week.

Howell’s colleagues razzed her yesterday about all the secrets she may keep from the past seven years.

Howell seemed to freeze in her seat as the most senior jurist on the court, Judge Paul Friedman, publicly described her still-secret rulings in grand jury-related matters, pointing to press accounts of Howell ruling in favor of Trump in a contempt dispute over his office’s response to a grand jury subpoena for classified records and against Trump on an effort to assert attorney-client privilege in the same probe.

“What fascinating issues!” Friedman declared wryly as Howell remained stone-faced on the dais. “We’d all love to read her opinions, but we can’t,” he said to laughter.

Friedman did note, however, that Howell had issued 100 secret grand jury opinions during her seven-year term.

Another colleague, Judge Tanya Chutkan, also alluded to Howell’s work resolving disputes related to the court’s grand juries over the past seven years.

“There’s so much work Chief Judge Howell has done that we may never know about,” Chutkan said.

In an interview with Zoe Tillman, though, Howell suggested she expects some of it will be unsealed.

Howell said she was still processing the past seven years.

“A lot of my work in the grand jury arena remains under seal, so it is going to be very hard to say what my legacy will be until after some of that work gets unsealed and people are able to evaluate it,” she said.

I expect a good deal of her recent work will be unsealed, in fairly short order.

It bears reminding, though, that Judge Howell attempted to share information about what she had been overseeing in a grand jury with the House Judiciary Committee in 2019. In a 75-page opinion invoking the Federalist papers and defending separation of powers, Howell issued a ruling that should have been uncontroversial: that the House could have grand jury materials in contemplation of impeachment.

In her opinion, Howell cited a number of the things the House might get with grand jury testimony. They included Paul Manafort’s description of how Trump ordered him to chase the documents stolen from Hillary.

Again, the Mueller Report recounts an incident when then-candidate Trump spoke to associates indicating that he may have had advance knowledge of damaging leaks of documents illegally obtained through hacks by the Russians, stating “shortly after WikiLeaks’s July 22, 2016 release of hacked documents, [Manafort] spoke to Trump [redacted]; Manafort recalled that Trump responded that Manafort should [redacted] keep Trump updated. Deputy campaign manager Rick Gates said that . . . Manafort instructed Gates [redacted] status updates on upcoming releases. Around the same time, Gates was with Trump on a trip to an airport [redacted], and shortly after the call ended, Trump told Gates that more releases of damaging information would be coming.” Id. at II-18 (footnotes omitted) (redactions in original, with citation in footnote 27 redacted due to grand jury secrecy).

They included Don Jr’s refusal to testify to the grand jury about the June 9 meeting.

[A] discussion related to the Trump Tower Meeting contains two grand jury redactions: “On July 12, 2017, the Special Counsel’s Office [redacted] Trump Jr. [redacted] related to the June 9 meeting and those who attended the June 9 meeting.” Id. at II-105 (redactions in original).

They included Manafort’s details of his discussions with Konstantin Kilimnik.

The Mueller Report further recounts evidence suggesting that then-candidate Trump may have received advance information about Russia’s interference activities, stating:

Manafort, for his part, told the Office that, shortly after WikiLeaks’s July 22 release, Manafort also spoke with candidate Trump [redacted]. Manafort also [redacted] wanted to be kept apprised of any developments with WikiLeaks and separately told Gates to keep in touch [redacted] about future WikiLeaks releases. According to Gates, by the late summer of 2016, the Trump campaign was planning a press strategy, a communications campaign, and messaging based on the possible release of Clinton emails by WikiLeaks. [Redacted] while Trump and Gates were driving to LaGuardia Airport. [Redacted], shortly after the call candidate Trump told Gates that more releases of damaging information would be coming.

Id. at I-53–54 (footnotes omitted) (redactions in original, with citation in referenced footnote 206 redacted due to grand jury secrecy).

But Bill Barr’s DOJ, after having challenged the uncontroversial notion that the House should be permitted to receive what was obviously an impeachment referral, appealed to the DC Circuit, lost, and then stalled long enough to outlast Congress. Bill Barr effectively refused to let Congress receive and act on an impeachment referral. But Howell did her constitutionally mandated part.

It’s an action DOJ took during precisely the period when Barr was stalling long enough to outlast Congress that, in my mind, is the biggest secret Howell takes from her tenure: What happened with an investigation into a suspected $10 million donation in September 2016 from an Egyptian-owned bank that allowed Trump to stay in the race when he was running out of funds. Though aspects of the investigation were dribbled out in grand jury unsealings from Howell along the way, CNN first confirmed the Egyptian bank angle in 2020.

For more than three years, federal prosecutors investigated whether money flowing through an Egyptian state-owned bank could have backed millions of dollars Donald Trump donated to his own campaign days before he won the 2016 election, multiple sources familiar with the investigation told CNN.

The investigation, which both predated and outlasted special counsel Robert Mueller’s probe, examined whether there was an illegal foreign campaign contribution. It represents one of the most prolonged efforts by federal investigators to understand the President’s foreign financial ties, and became a significant but hidden part of the special counsel’s pursuits.

The investigation was kept so secret that at one point investigators locked down an entire floor of a federal courthouse in Washington, DC, so Mueller’s team could fight for the Egyptian bank’s records in closed-door court proceedings following a grand jury subpoena. The probe, which closed this summer with no charges filed, has never before been described publicly.

Prosecutors suspected there could be a link between the Egyptian bank and Trump’s campaign contribution, according to several of the sources, but they could never prove a connection.

Shortly after the investigation was killed, Barr went up to Hillsdale College and ranted about prosecuting corruption.

This criminalization of politics is not healthy. The criminal law is supposed to be reserved for the most egregious misconduct — conduct so bad that our society has decided it requires serious punishment, up to and including being locked away in a cage. These tools are not built to resolve political disputes and it would be a decidedly bad development for us to go the way of third world nations where new administrations routinely prosecute their predecessors for various ill-defined crimes against the state. The political winners ritually prosecuting the political losers is not the stuff of a mature democracy.

The Justice Department abets this culture of criminalization when we are not disciplined about what charges we will bring and what legal theories we will bless. Rather than root out true crimes — while leaving ethically dubious conduct to the voters — our prosecutors have all too often inserted themselves into the political process based on the flimsiest of legal theories. We have seen this time and again, with prosecutors bringing ill-conceived charges against prominent political figures, or launching debilitating investigations that thrust the Justice Department into the middle of the political process and preempt the ability of the people to decide.

This criminalization of politics will only worsen until we change the culture of concocting new legal theories to criminalize all manner of questionable conduct. Smart, ambitious lawyers have sought to amass glory by prosecuting prominent public figures since the Roman Republic. It is utterly unsurprising that prosecutors continue to do so today to the extent the Justice Department’s leaders will permit it.

Even at the time — with the Mike Flynn, Roger Stone, and Paul Manafort cases — it was clear that Barr was engaged in fairly unprecedented corruption of DOJ to protect Trump. Since then, we’ve learned of more. Most notably, as we await a potential Bragg indictment, Geoffrey Berman described how, after Cohen pled guilty in the hush payment case, Barr not only shut down any investigation of Trump on the charge, but attempted to reverse Cohen’s own prosecution.

While Cohen had pleaded guilty, our office continued to pursue investigations related to other possible campaign finance violations. When Barr took over in February 2019, he not only tried to kill the ongoing investigations but—incredibly—suggested that Cohen’s conviction on campaign finance charges be reversed.

Barr summoned Rob Khuzami in late February to challenge the basis of Cohen’s plea as well as the reasoning behind pursuing similar campaign finance charges against other individuals. Khuzami was told to cease all investigative work on the campaign finance allegations until the Office of Legal Counsel, an important part of Main Justice, determined there was a legal basis for the campaign finance charges to which Cohen pleaded guilty—and until Barr determined there was a sufficient federal interest in pursuing charges against others.

Barr even attempted to put supervision of the case in the hands of Richard Donoghue, as he did do with the Rudy Giuliani case.

Given that Barr didn’t think Trump should be prosecuted for the Cohen illegal contribution case, there’s no telling what he thought of the suspected Egyptian bank donation. Certainly, he was in complete control of DC USAO at the time, if he wanted to shut down an otherwise viable investigation.

We are, as Howell herself said, likely to know much of what she has been doing for the last two years. But her biggest secret is whether Bill Barr prevented DOJ from fully attempting to learn whether Donald Trump was beholden to Egypt or some other foreign country for the entirety of the time he served as President.

Multiple outlets are reporting that Judge Beryl Howell, in what may be her last ruling as Chief Judge, has ruled that Evan Corcoran must testify about his conversations with Trump.

This follows the news, from ABC, that Jack Smith’s team is particularly interested in a conversation Trump and Corcoran had on June 24, 2022, after prosecutors sent a subpoena to Trump Organization for surveillance footage that would show Walt Nauta moving boxes out of the storage room where the FBI would later find 70 classified documents. As I noted last year, in the early weeks of Trump’s efforts to stall the investigation, there was a discrepancy about what date this subpoena was served, which I suspected might suggest DOJ had to file subpoenas to two different entities before Trump agreed to comply.

So now we’ve ended up where it was clear we were going to end up in September, with another of Trump’s lawyers whose communications with him are found to be crime fraud excepted.

Corcoran is in good company. He is probably at least the fourth Trump lawyer whose comms were deemed crime-fraud excepted in the last five years. The others are:

• Michael Cohen, April 2018
• Rudy Giuliani, January 2022
• John Eastman, March 2022

Indeed, the first such instance, the conversation Cohen recorded of Trump agreeing to a hush payment, will likely lead to the first (or possibly second, depending on what Fani Willis is doing) indictment of Trump, perhaps early next week.

With both Cohen and Rudy, the lawyers withdrew objections after Special Master Barbara Jones deemed the comms not to be privileged.

Corcoran should feel pretty good, though. He may be the first Trump crime-fraud contestant who manages to avoid legal exposure himself.

That’s got to count for something in the Trump Crime-Fraud Reality Show, right?

 

For at least six years — from Rick Gates sharing stuff with Maggie as a way to share it with Roger Stone, to Stefan Passantino sharing Cassidy Hutchinson’s damaging testimony because “Maggie’s friendly to us. We’ll be fine” — people in Trump’s camp explicitly state they go to Maggie Haberman because she’s useful to their goals. The results are obvious, such as the time when Maggie buried the news that Trump had spoken to Vladimir Putin about adoptions immediately before crafting a bullshit cover story for the June 9 meeting that claimed it was all about adoptions; Maggie buried the story by repeating Trump’s threats to fire Jeff Sessions first.

That’s why it’s useful to look at two damaging details Maggie buried in what purports to be a profile of Boris Epshteyn, the non-Breaking News parts of which I covered here and other parts that WaPo covered in November.

First, NYT buried the news that SDNY has opened an investigation into the crypto currency scam Epshteyn and Steve Bannon grifted loyal Trump supporters with beneath not one, not two, but three flashy quotes about Epshteyn from Bannon himself, followed by 22 paragraphs, many focused on how Boris charged campaigns for keeping them on Trump’s good side, then one  paragraph that included 17 words of tortured Enhanced Euphemism Techniques in an 83 word paragraph, only then to reveal that Bannon is under investigation for the crypto currency scheme, too.

A cryptocurrency with which [Epshteyn] is involved has drawn scrutiny from federal prosecutors.

[snip]

“Boris is a pair of heavy hands — he’s not Louis Brandeis,” said Stephen K. Bannon, a close ally of Mr. Epshteyn and former adviser to Mr. Trump, referring to the renowned Supreme Court justice. But Mr. Trump, he said, “doesn’t need Louis Brandeis.”

“You need to be a killer, and he’s a killer,” Mr. Bannon added.

But Mr. Epshteyn’s attacking style grates on other people in Mr. Trump’s circle, and he has encouraged ideas and civil lawsuits that have frustrated some of Mr. Trump’s lawyers, like suits against the journalist Bob Woodward and the Pulitzer Prize committee. His detractors see him as more of a political operative with a law license than as a provider of valuable legal advice.

“As soon as anybody starts making anything happen for Trump overall, the knives come out,” Mr. Bannon said. He described Mr. Epshteyn as “a wartime consigliere.”

[21 paragraphs, many focused on Epshteyn’s dodgy consulting gig]

[This paragraph, in which 17 tortured words out of 83 are Enhanced Euphemism Techniques:

]

More recently, a pro-Trump cryptocurrency that Mr. Epshteyn and Mr. Bannon are involved with managing is facing an inquiry from federal prosecutors in the Southern District of New York, according to a person familiar with the matter.

Breaking: A key source for this story, Steve Bannon, is under investigation for the shameless grift of printing pro-Trump money, then bilking Trump supporters every time they bought it.

Compare how ABC reported the same story when they covered it a few hours later:

A cryptocurrency linked to former Trump White House strategist Steve Bannon and Trump adviser Boris Epshteyn has caught the attention of federal prosecutors in New York, who have started looking into it, sources familiar with the matter told ABC News.

News of federal prosecutors’ interest in the Bannon and Epshteyn-fronted cryptocurrency comes on the heels of an ABC News investigation into the cryptocurrency, which looked at allegations of internal chaos and mismanagement by the two high-profile Trump associates over the past year, including accusations that they’ve failed in their commitment to continue to donate portions of the coin’s proceeds to charities.

The New York Times was the first to report the news of the inquiry from federal prosecutors.

MORE: Internal chaos plagues Bannon-fronted $FJB cryptocurrency, critics say
The cryptocurrency — dubbed $FJB from the shorthand version of the vulgar MAGA expression “F— Joe Biden” and now officially said to stand for Freedom Jobs and Business — has lost 95% of its value amid internal turmoil, at least in part due to an industry-wide downturn.

Critics say $FJB represents the latest in a string of ill-fated efforts to leverage MAGA support for financial returns — particularly on the part of Bannon, who in September pleaded not guilty to unrelated charges that he defrauded donors with the promise of building a wall on the U.S.-Mexico border.

Acquired by Bannon and Epshteyn from original lead creator Grant Tragni and two other co-founders in late 2021, $FJB was promoted as a rejection of President Joe Biden and an alternative financial institution for conservatives by the two MAGA influencers — who also emphasized that part of the currency’s 8% transaction fee would go to charities including the Wounded Warriors Project, Tunnels To Towers, Semper Fi and Patriot Freedom Project.

But according to a spokesperson for the Wounded Warriors Project, as of January this year, no donations had been made by $FJB to the organization since Bannon and Epshteyn took over in December 2021. Wounded Warriors told ABC News that they had only received the one donation from $FJB in November 2021 — prior to Bannon and Epshteyn’s involvement.

NYT, apparently, thought it more important to string out a bunch of quotes from a suspected serial fraudster — “heavy hands — he’s not Louis Brandeis,” … “You need to be a killer, and he’s a killer,” … “a wartime consigliere” — rather than ask the serial fraudster if he had knowingly defrauded a bunch of MAGAts or at least describe how he exploited Trump’s loyal followers. (Note, this scam is also covered in Denver Riggelman’s The Breach, which is better than I thought it’d be.)

The other thing buried twelve paragraphs into a story covering stuff many people have already covered is that Ephsteyn tried to retroactively claim he was providing legal advice after the search of Mar-a-Lago.

After the search last summer of Mar-a-Lago by F.B.I. agents looking for classified documents still in Mr. Trump’s possession, Mr. Epshteyn retroactively changed his agreement with the political action committee. The agreement, which had been primarily for communications strategy, was updated to include legal work, and to say it covered legal work since the spring of last year, a campaign official said. His monthly retainer doubled to $30,000.

But he dropped a separate effort to have Mr. Trump sign a letter retroactively designating him as a lawyer for Mr. Trump personally, dating to March of last year, soon after Mr. Trump’s post-presidency handling of classified documents became an issue. The letter specifically stated that their communications would be covered by attorney-client privilege, multiple people familiar with the request said.

Now, credit where credit is due. As I noted when I described Maggie’s recent solo foray into campaign finance journalism, after a slew of stories in which Maggie called Epshteyn Trump’s “in-house counsel,” once she looked at the FEC documents, she described that Boris had billed all this as strategic consulting.

NYT has, in various stories including Maggie in the byline, described Epshteyn’s role in the stolen documents case as “an in-house counsel who helps coordinate Mr. Trump’s legal efforts,” “in-house counsel for the former president who has become one of his most trusted advisers,” and “who has played a central role in coordinating lawyers on several of the investigations involving Mr. Trump.” Another even describes that Epshteyn “act[ed] as [a] lawyer [] for the Trump campaign.” The other day, Maggie described his role instead as “broader strategic consulting.”

In this story, the story that reveals that after the search of MAL Epshteyn attempted to retroactively declare that he had been providing legal advice all along, Maggie calls him the, “self-described in-house counsel.”

I guess we know who was describing him as “in-house counsel” for all those stories stating as fact that he was the in-house counsel?

Epshteyn’s attempted retroactive claim that he had been providing legal services is not a minor detail.

Effectively what Epshteyn did was, after playing a key role in Trump’s coup attempt followed by a year of grifting off his access to Trump, he swooped back into Trump’s orbit when it became public that Trump had been fighting to withhold documents from the government; who knows what more details Ephsteyn had about all the highly sensitive documents stored in a leatherbound box in his office when he swooped in. And over the course of the next five months, Ephsteyn brought in a group of lawyers who are highly inappropriate to advise on a classified documents case, including Evan Corcoran, who treated a potential Espionage Act case as an 18 USC 1924 case, Chris Kise, fresh off his work for the Maduro regime, and, for a bit part playing the fall gal, former OAN host Christina Bobb. Some of these people are accomplished lawyers, but they’re not remotely appropriate to this investigation.

It’s unclear whether Epshteyn assembled such an inappropriate team because he wants Trump to go down, with all the chaos that will cause, because he’s stupid and wildly unsuited to this role, or because Trump was desperate. But after ensuring there was no one who could be called an adult in the terms of Espionage Act investigations left in the room, Epshteyn then reportedly masterminded a shell game on June 3 in which Trump boarded his jet to Bedminster at the moment that Corcoran handed over a packet of documents that Bobb claimed, with no way of knowing, constituted everything Trump had left.

“Wartime consiglieres,” as Bannon called his brother in cryptocurrency scam, don’t orchestrate such transparently stupid schemes.

And then after DOJ called Trump’s bluff with a search of Mar-a-Lago on August 8, according to this story, Epshteyn attempted to make all the conversations he had in the run-up to that search privileged, retroactively. Epshteyn appears not to have considered this legal advice until the moment it became clear his shell game had failed.

And given that some of Maggie’s best sources — including some of the sources who’ve long had the knives out for Epshteyn — have chatted with prosecutors since the search, prosecutors likely know that Epshteyn only belatedly decided he had been playing a lawyer all along. Maybe they even found it out before they seized Ephsteyn’s phone in early September under a January 6 warrant. Or maybe some of the recent activity in the stolen documents case, including the effort to get crime-fraud testimony from Corcoran, aims to shore up a warrant for stolen documents-related Epshteyn phone content that the FBI already has in its possession.

Indeed, this new detail explains something else in the story, something that NYT and others have already covered. Among the questions that Bobb and Corcoran and others have gotten from prosecutors pertains to Epshteyn’s attempt to set up a common-interest agreement.

Prosecutors investigating Mr. Trump’s handling of classified material have looked at whether Mr. Epshteyn improperly sought a common-interest agreement among witnesses as a shield against the investigation, the people familiar with the matter said.

Til now, this detail has always been reported without explanation of why it would be wrong — why it would deviate from normal white collar practice. The line of questioning didn’t make sense to me. It makes far more sense, however, if Epshteyn did so after his shell game blew up on him. It makes more sense if Epshteyn was trying to shield his own behavior, just as retroactively declaring his advice legal advice would do.

The question is why. Why Epshteyn advised Trump to take such a catastrophically stupid approach to stolen classified documents. By embedding this breaking news in a profile about the way Epshteyn monetized access to Trump, NYT seems to suggest that’s the motive (and I’ve heard similar descriptions from others): Epshteyn was just giving Trump what he wanted when no one else would as a way to make sure his other grift could continue.

That’s not the only possible motive, though: there are other more obvious reasons someone who failed to get clearance, even in Trump’s White House, might want to help Trump hoard highly classified documents (NYT reports that “the issue has been resolved”).

The question of why Epshteyn did all this has likely become closely intertwined with prosecutors’ attempts to assess why Trump withheld the documents in the first place, as well as attempts to understand why two separate searches found 47 empty classified document folders.

Tim Parlatore — another lawyer who is woefully ill-suited for a stolen documents case — is quoted by the NYT stating that the rest of the lawyers Epshteyn has assembled will be good so long as Epshteyn, himself, doesn’t become a target, as if the seizure of his phone is not some kind of tip off.

“Boris has access to information and a network that is useful to us,” said one of the team’s lawyers, Timothy Parlatore, whom Mr. Epshteyn hired. “It’s good to have someone who’s a lawyer who is also inside the palace gates.”

Mr. Parlatore suggested that he was not worried that Mr. Epshteyn, like a substantial number of other Trump lawyers, had become at least tangentially embroiled in some of the same investigations on which he was helping to defend Mr. Trump.

“Absent any solid indication that Boris is a target here, I don’t think it affects us,” Mr. Parlatore said.

I don’t even know what to make of Parlatore’s quote explaining that Boris’ network “is useful to us.” To do what? Isn’t the goal to keep Trump out of prison?

But I do know that none of these people seem to be sufficiently worried about 18 USC 793(g), the built-in conspiracy clause in the Espionage Act. Even if Epshteyn’s motives are no more ignoble than attempting to monetize his access to Trump — and, again, his motives are likely as much a focus as Trump’s at this point — that doesn’t exempt him from exposure to conspiracy charges himself if he agreed to help Trump hoard the classified documents. Indeed, adding Epshteyn as a co-conspirator might have several advantages for prosecutors.

Epshteyn is, as this profile and others have laid out, someone monetizing access to Trump. The more salient detail, for the investigation, is why Epshteyn only retroactively tried to protect his own involvement in the alleged attempt to withhold classified documents.