The *How* of Owen Shroyer’s Arrest

About an hour after I wrote this in my post on the problems with a Reuters article about the January 6 investigation…

Because of the other problems with this article, I don’t know what to make of the single piece of news in it. As noted above, a former senior law enforcement official claims that, “there was no grand scheme with Roger Stone and Alex Jones and all of these people to storm the Capitol and take hostages.” That makes sense with respect to Alex Jones; his videographer was arrested long ago and remains charged only with trespass.

Zoe Tillman first reported that InfoWars’ Owen Shroyer had been charged. A picture from the affidavit shows Shroyer on stage with Alex Jones and (though he’s harder to see) Ali Alexander, a key organizer for the events underlying the riot. Jones and Alexander were critically responsible for bringing the crowd first to DC and then to the Capitol, and Jones also allegedly paid for some of the rally (at a time when his show was in real financial trouble).

How DOJ charged Shroyer — at this point, just for trespassing charges — is as interesting that they did.

Shroyer is not alleged to have gone into the Capitol. The closest the affidavit places him is on the East side steps, right behind Jones and (I believe) with Alexander right in front of Jones.

The inclusion of this picture reminds me of how often Oath Keepers filings talk about the others who were also on the East side at the time they breached the Capitol.

Not entering the Capitol is not itself a bar on charges. After all, Couy Griffin was charged for his presence on the West steps, charges that Trevor McFadden didn’t throw out when he had a chance.

But Shroyer is a media personality with a claim to being a journalist. So DOJ offers more to justify it.

As the affidavit lays out, back during Impeachment 1.0 on December 9, 2019, Shroyer got himself arrested for accusing Jerry Nadler of treason.

He wasn’t charged for that until January 17, 2020, and so didn’t resolve the case with a Deferred Prosecution Agreement until February 25, 2020. What happened with Shroyer is what other January 6 defendants claim should have happened to them: misdemeanor charges in DC Superior Court, followed by a deferral.

As part of Shroyer’s DPA, he was required to do 32 hours — just four days! — of community service. He seems to have fiddled around with what entity he was going to do service with, but at one point he claimed he was going to do it with the Sinai Pentecostal Church’s Reverend Samuel Montoya, who also happens to be the father of InfoWars’ videographer, who himself got arrested in April.

Which is another way of saying that Shroyer was dicking around with the meager community service he was required to do as part of his DPA.

The other part of Shroyer’s DPA, aside from the community service he was clearly dodging, was a requirement that he not similarly engage in such disorderly conduct again at the “Capitol,” which was defined by a map that Shroyer signed, which actually may be broader than the protected space that DOJ is charging in the January 6 cases (and so easily encompasses the stage on which Shroyer appeared with Alex Jones).

Due to the nature of the offense, the DPA included the following special conditions for SHROYER:

1. The defendant agrees not to utter loud, threatening, or abusive language, or to engage in any disorderly or disruptive conduct, at any place upon the United States Capitol Grounds or within any of the Capitol Buildings with intent to impede, disrupt, or disturb the orderly conduct of any session of the Congress or either House thereof, or the orderly conduct within any such building of any hearing before, or any deliberations of, any committee or subcommittee of the Congress or either House thereof.

2. The defendant agrees not to parade, demonstrate, or picket within any of the Capitol Buildings. 3. The term “Capitol Buildings” means the United States Capitol, the Senate and House Office Buildings and garages, the Capitol Power Plant, all subways and enclosed passages connecting 2 or more of such structures, and the real property underlying and enclosed by any such structure.

In addition, the term “United States Capitol Grounds” was defined to include an area delineated in a map attached to the DPA spanning the Capitol grounds from 3rd Street NW on the west side of the Capitol building, to 2nd Street SE on the east side of the Capitol building (see Exhibit A). SHROYER and his attorney each signed an Acceptance and Attorney’s Acknowledgement, respectively, for the DPA. As a result of the DPA, SHROYER had special knowledge of what areas in Washington, D.C. in and around the U.S. Capitol constituted the U.S. Capitol Grounds. [my emphasis]

In other words, whereas the thousands of other people participating in the January 6 riot might believe they’d only get into trouble if they walked in the building, Shroyer had notice that the protected grounds were broader than that. And he not only may have been subject to a broader protected grounds than those other thousands of people, but it was a violation of his DPA to do it.

Plus, the government claims he played fast and loose with his community service, which meant that even though his crime was committed on December 9, 2019, his DPA remained in place until … well, it’s still in place because Shroyer did only 30 hours, rather than 32 hours, of community service, but it certainly was in place on January 6, because he had done none of his community service at that point.

As of January 6, 2021, the DPA remained in effect. SHROYER had not completed, nor reported the completion of, any of the 32 hours of community service as required pursuant to the DPA. On February 5, 2021, counsel for SHROYER emailed the Government to report that SHROYER allegedly “has completed his 32 hours of community service.” An attached log provided by SHROYER’s counsel reported that SHROYER, in fact, performed only 30 hours of community service beginning on January 19, 2021 through February 4, 2021. Thus, as of January 6, 2021, SHROYER had not completed any hours of community service as required by the DPA, and as of February 5, 2021, his community service obligation remained incomplete.

The rest of this arrest affidavit is gratuitous, a speaking document to nod to where they might go with him. After all, Shroyer was uniquely prohibited from entering the grounds and being an asshole on January 6. That’s all the government would need to charge him.

But the rest is interesting because it clearly lays out evidence — at a minimum! — that he could be charged with obstruction because he specifically talked about obstructing the vote certification on January 5.

SHROYER traveled to Washington, D.C. in January 2021, and in advance of January 6, 2021, spoke of stopping the certification of the Electoral College vote. In a video1 posted to the Infowars website on January 5, 2021, SHROYER gave an address in Freedom Plaza in Washington D.C., during which he stated: “Americans are ready to fight. We’re not exactly sure what that’s going to look like perhaps in a couple of weeks if we can’t stop this certification of the fraudulent election . . . we are the new revolution! We are going to restore and we are going to save the republic!”

In another video2 posted to the Infowars website on January 5, 2021, SHROYER called into an Infowars live broadcast and said: “what I’m afraid of is if we do not get this false certification of Biden stopped this week. I’m afraid of what this means for the rest of the month . . . Everybody knows election was stolen . . . are we just going to sit here and become activists for 4 years or are going to actually do something about this . . . whatever that cause or course of cause may be?”3

That is, this is where these charges could go, once they arrest Shroyer and maybe even search his phone. They’re not charging it here — and Shroyer was legally entitled to be an asshole at Freedom Plaza on January 5, as opposed to the Capitol. But they’re making it clear where they could go.

I suspect they hoped to arrest Shroyer at a status hearing scheduled for today, but he didn’t show.

Shroyer was supposed to appear in DC Superior Court on Friday for a hearing to update the judge on the status of his case, but he did not show up, according to the docket. The prosecutor didn’t ask for a bench warrant to arrest him for failing to appear, and the judge set another hearing for Sept. 23. A lawyer listed as counsel for Shroyer said that was a mistake and he was not involved in the case.

Instead, he announced the charges on his InfoWars show, looking a hell of a lot more panicked than a well-funded white guy facing misdemeanor trespass charges should be, even as a recidivist.

This is just one of 580 arrest affidavits accusing someone of trespassing. But it certainly seems to be more than that.

Update: In my post on how one would prosecute Donald Trump, I noted that DOJ has been coy about what went down at a December 12 Stop the Steal rally, probably because (I mused) they haven’t included Enrique Tarrio in any of the conspiracy indictments. As Just Security reported back in February, Shroyer was part of that event, too.

In the video, Owen Shroyer, an Infowars personality, speaks to the crowd on a bullhorn. He is standing next to Tarrio. Shroyer hands Stone the bullhorn. Stone gives brief remarks standing beside Nordean, who appears to have his hand on Stone’s shoulder. “We will fight to the bitter end for an honest count of the 2020 election. Never give up, never quit, never surrender, and fight for America!” Stone tells the crowd. After his brief remarks, Stone passes the bullhorn back to Shroyer. Tarrio joins Stone and Nordean. Tarrio and Stone engage in an inaudible dialogue as Shroyer continues to rouse the crowd. “We got stabbed in the back by the Supreme Court tonight,” shouts Shroyer. “This was never their revolution. This is our revolution!”

Update: Apparently the stage on which Owen and Jones were is within what DOJ is treating as restricted area, but thus far has not arrested anyone for. I do believe it is the case, however, that Owen’s restricted area is larger than the one DOJ has used for January 6.

Update: Corrected that Reverend Montoya is the father of videographer Sam Montoya, per JK.

Reuters Doesn’t Mention Terrorism When Claiming DOJ Won’t Charge Serious Offenses in the January 6 Investigation

Reuters has a story claiming to report that, “FBI finds scant evidence U.S. Capitol attack was coordinated,” that has elicited a lot of consternation. I’d like to look at what it does and does not say. Most of it is true — and not news — but somewhere along the way someone (either the reporters or the sources) misunderstood parts of what they’re looking at.

Reuters or its sources don’t understand how DOJ is charging this

One detail shows this to be true.

The Reuters piece makes much of the fact that DOJ is not charging what it calls “serious” charges.

Prosecutors have filed conspiracy charges against 40 of those defendants, alleging that they engaged in some degree of planning before the attack.

They alleged that one Proud Boy leader recruited members and urged them to stockpile bulletproof vests and other military-style equipment in the weeks before the attack and on Jan. 6 sent members forward with a plan to split into groups and make multiple entries to the Capitol.

But so far prosecutors have steered clear of more serious, politically-loaded charges that the sources said had been initially discussed by prosecutors, such as seditious conspiracy or racketeering.

[snip]

More than 170 people have been charged so far with assaulting or impeding a police officer, according to the Justice Department. That carries a maximum sentence of 20 years.

But one source said there has been little, if any, recent discussion by senior Justice Department officials of filing charges such as “seditious conspiracy” to accuse defendants of trying to overthrow the government. They have also opted not to bring racketeering charges, often used against organized criminal gangs.

Not once does the story mention obstruction, which also carries a maximum sentence of 20 years. If you don’t mention obstruction — and your sources don’t explain that obstruction will get you to precisely where you’d get with a sedition charge, but with a lot more flexibility to distinguish between defendants and a far lower bar of proof (unless and until judges decide it has been misapplied) — then your sources are not describing what is going on with the investigation.

Furthermore, Reuters purports to rule out “more serious, politically-loaded charges,” but it never mentions terrorism.

One reason it wouldn’t, though, is because for domestic terrorists, you don’t charge terrorism, you charge crimes of terrorism or you argue for an enhancement under U.S.S.G. §3A1.4 at sentencing. And that has and will continue to happen. For example, both the Oath Keepers and Proud Boys  conspiracies include 18 USC 1361 charges (damage to a government building exceeding $1,000, a charge that is a bit of a stretch for the Oath Keepers) that constitutes a crime of terrorism, and the government has raised that and noted it is a crime of terrorism in a number of bail disputes. Effectively, DOJ has already called the leaders of the militia conspiracies terrorists. But Reuters doesn’t think that’s worth noting.

Similarly, for both the assault pleas DOJ has obtained thus far, the government has reserved the right to invoke a terrorism enhancement at sentencing. In the case of Scott Fairlamb, who also pled guilty to obstruction, which effectively amounts to pleading guilty to having a political purpose for his assault, I suspect such an enhancement is likely.

Somehow this entire story got written without mentioning what DOJ is using instead of seditious conspiracy: obstruction (which has been charged against over 200 defendants) and terrorism enhancements; civil disorder is likewise not mentioned, but has been charged against around 150 defendants. DOJ isn’t using seditious conspiracy because it doesn’t need it (again, unless and until the courts reject this use of obstruction).

Reuters mis-describes the Proud Boys’ role in the riot

Much of the rest of the story includes details that are true, and public, but arguably misleading.

A “former senior law enforcement official” (most former senior people who had visibility on the investigation have been gone for some time) claims that 90 to 95% of these cases are “one-off” cases, seemingly distinguishing between the 40 people Reuters describes to have been charged in conspiracy from the 540 or so who have not been charged with a conspiracy.

“Ninety to ninety-five percent of these are one-off cases,” said a former senior law enforcement official with knowledge of the investigation. “Then you have five percent, maybe, of these militia groups that were more closely organized. But there was no grand scheme with Roger Stone and Alex Jones and all of these people to storm the Capitol and take hostages.”

On paper, that’s true, and in key places a really important detail. But in other places it doesn’t mean what Reuters suggests it says.

For example, consider the nine men charged in the assault of Daniel Hodges. None of them knew each other before they started beating the shit out of some cops in the Tunnel of the Capitol. But several of the men charged nevertheless managed to orchestrate the assault (indeed, that’s most of what David Mehaffie did do — make other assailants more effective) and so, even while these individuals did not conspire to beat the shit out of cops, they worked in concert when they did so. The same is true for the men jointly accused of assaulting Michael Fanone (though Daniel Rodriguez has not been charged with the other men involved, many people believe because he’ll be charged in a conspiracy with others from Southern California).

Plus, the number cited to Reuters is probably wrong. Ten percent of the 580 people charged would be around 60. There were that many people on the Proud Boys’ organizational Telegram channel that day (though not all those people were present). There are a bunch of Proud Boys already charged individually, including some (like Dan Scott) who could easily be added to existing conspiracy indictments, others charged as groups (like the five Floridians on the Arthur Jackman indictment), and a father-son pair Jeffrey and Jeremy Grace who just got a terrorism prosecutor added. There are five Oath Keepers not included in that conspiracy (four cooperating against the others). And DOJ is only beginning to unwind the 3%er networks involved. So even just considering militias, the number is likely closer to 80.

And there are other important affiliations represented at the riot — with QAnon and anti-maskers being two of the most important — that actually created networks that were in some ways more effective than the militias. The QAnoners didn’t conspire with each other but they sure as hell were directed from the same place. And anti-mask protests were actually one place where a goodly number of rioters were radicalized, and those localized networks manifested as cells of cooperation in some key incidents in the riot.

More importantly, this claim can only have come from people who misunderstand what the investigation has shown:

Prosecutors have also not brought any charges alleging that any individual or group played a central role in organizing or leading the riot. Law-enforcement sources told Reuters no such charges appeared to be pending.

Conspiracy charges that have been filed allege that defendants discussed their plans in the weeks before the attack and worked together on the day itself. But prosecutors have not alleged that this activity was part of a broader plot.

It’s true that the Proud Boys are not known to have had a detailed plan describing who would move where in the Capitol. But it’s also true that both before and after the riot, the Proud Boys discussed mobilizing the “normies,” because normies have no adrenalin control. And the Proud Boys’ success at doing this is what made the initial assault on the West side of the Capitol work (and therefore the attack generally). The Proud Boys weren’t ordering the 1,000 rioters what to do at each step (though probably 100 people at the riot had some interaction with the Proud Boys), but they did give the riot a kind of structure that was crucial to its success.

Maybe Roger Stone isn’t involved?

Because of the other problems with this article, I don’t know what to make of the single piece of news in it. As noted above, a former senior law enforcement official claims that, “there was no grand scheme with Roger Stone and Alex Jones and all of these people to storm the Capitol and take hostages.” That makes sense with respect to Alex Jones; his videographer was arrested long ago and remains charged only with trespass.

But Stone has continued to appear in Oath Keeper filings long after the time that someone very senior would have left. And the two cooperators who might confirm or deny Stone’s involvement — Graydon Young (who did an Oath Keeper event with Stone in Florida) and Mark Grods (who was present with the Oath Keepers who were with Stone the day of the attack) — only pled guilty at the end of June, meaning if they confirmed Stone wasn’t involved (even in the planning for the attack known to have taken place in December, in Florida), it wouldn’t have happened all that long ago.

Particularly given the mention of kidnapping — which was a real question at the beginning of the investigation because of the zip ties that Larry Brock and Eric Munchel picked up inside the Capitol — this seems like a denial of a very dated misunderstanding of what happened.

I don’t think this story is meant maliciously. For example, I’m unimpressed with concerns raised about Tass’ ownership; this is Mark Hosenball and he’ll do the same reporting regardless of who signs his paycheck. Nor am I all that concerned by the anonymity of the sources; I’m more interested in how dated some of this information might be and which corners of the sprawling investigation those who actually worked on it were personally involved with.

It reads like the end result of a game of telephone asking questions that were raised in January, not a report about the investigation as public filings reveal it to be in August.

Update: DOJ just charged InfoWars host Owen Shroyer. The initial charges are just trespassing (leveraging a prior charge and Deferred Prosecution Agreement he entered), but he’s likely to be charged with obstruction based on stuff in his arrest affidavit.

How a Trump Prosecution for January 6 Would Work

Jeffrey Toobin wrote a shitty piece arguing — seemingly based exclusively on Trump’s request to Jeffrey Rosen to delegitimize the election results in Georgia and Trump’s January 6 speech — that Merrick Garland should not prosecute Trump.

Toobin’s piece sucks for the same reason that all the mirror image articles written by TV lawyers, the ones explaining how DOJ might prosecute Trump, also suck: because none exhibit the least familiarity with how DOJ is approaching January 6, much less what allegations it has already made in charging documents. They are, effectively, nothing more than throwing a bunch of laws at the wall to see whether any stick (and in Toobin’s estimation, none do).

Almost none of these TV lawyers engage with how DOJ is applying obstruction as the cornerstone of its January 6 prosecutions. For example, Toobin considers whether Trump obstructed justice, but he only analyzes whether, when, “Trump encouraged the crowd to march to Capitol Hill but he did not explicitly encourage violence,” Trump obstructed the vote certification. Of around 200 January 6 defendants charged with obstruction, I can think of few if any against whom obstruction has been charged based solely on their actions on the day of the riot, and Trump is not going to be the exception to that rule. As with other January 6 defendants, DOJ would rely on Trump’s words and actions leading up to the event to prove his intent.

In this post, I want to lay out how a DOJ prosecution of Trump for January 6 would work. I’m not doing this because I’m sure DOJ will prosecute. I’m doing it to make the commentary on the question less insufferably stupid than it currently is.

Assumptions

The piece makes three assumptions.

First, it assumes that DOJ’s current application of 18 USC 1512(c)(2) to cover the vote certification survives judicial review. It’s not at all clear it will, either because the courts (this will go to SCOTUS) don’t believe Congress intended to include Constitutionally-mandated official proceedings like the vote certification in a law covering official proceedings, because the courts will decide that rioters had no way of knowing that interrupting Constitutionally-mandated official proceedings was illegal, or because courts will decide that rioters (all of them, as opposed to one or another making a compelling case to a jury) did not have the requisite corrupt purpose. There are currently at least nine challenges to the application of the law (at least two more have been raised since Judge Randolph Moss had prosecutors put together this list). If TV lawyers want to argue about something, this might be a more productive use of their time than arguing about whether Trump can be prosecuted more generally, because the question doesn’t require knowing many actual facts from the investigation.

This piece also assumes that DOJ would apply two things they asserted in a filing pertaining to Mo Brooks to Trump as well. That filing said that the scope of federal office holder’s job excludes campaign activity, so any campaign activity a federal office holder engages in does not count as part of that person’s duties.

Like other elected officials, Members run for reelection themselves and routinely campaign for other political candidates. But they do so in their private, rather than official, capacities.

This understanding that the scope of federal office excludes campaign activity is broadly reflected in numerous authorities. This Court, for example, emphasized “the basic principle that government funds should not be spent to help incumbents gain reelection” in holding that House or Senate mailings aimed at that purpose are “unofficial communication[s].” Common Cause v. Bolger, 574 F. Supp. 672, 683 (D.D.C. 1982) (upholding statute that provided franking privileges for official communications but not unofficial communications).

DOJ also said that conspiring to attack your employer would not be included in a federal office holder’s scope of employment.

Second, the Complaint alleges that Brooks engaged in a conspiracy and incited the attack on the Capitol on January 6. That alleged conduct plainly would not qualify as within the scope of employment for an officer or employee of the United States, because attacking one’s employer is different in kind from any authorized conduct and not “actuated . . . by a purpose to serve” the employer. Id. § 228(1)(c).

These two principles, taken together, would get beyond some of the challenges involved in investigating someone covered by Executive Privilege and making orders as Commander-in-Chief. Importantly, it would make Trump’s activities in conjunction with the January 6 rally subject to investigation, whereas they broadly wouldn’t be if they were done in Trump’s official capacity.

Finally, if DOJ were to charge Trump, they would charge him in a conspiracy to obstruct the vote count that intersected with some of the other conspiracies to obstruct the vote count, possibly with obstruction charges against him personally. In general, I don’t think DOJ would charge most of Trump’s discrete acts, at least those conducted before January 20, as a crime. There are two possible exceptions, however. His call to Brad Raffensperger, particularly in the context of all his other efforts to tamper in the Georgia election, would have been conducted as part of campaigning (and therefore would not have been conducted as President). It seems a clearcut case of using threats to get a desired electoral outcome. It’s unclear whether Trump’s request that Mike Pence to commit the unconstitutional action — that is, refusing to certify the winning electoral votes — would be treated as Presidential or electoral. But that demand, followed closely with Trump’s public statements that had the effect of making Pence a target for assassination threats, seems like it could be charged on its own. Both of those actions, however, could and would, in the way DOJ is approaching this, also be overt acts in the conspiracy charged against Trump.

The other conspiracies

If DOJ would only charge Trump in the context of a conspiracy to obstruct the vote (with whatever other charges added in) that intersects with some or all of the other conspiracies charged, it helps to understand what DOJ has done with those other conspiracies. Here’s what the currently charged conspiracies look like:

DOJ has been treating the multiple Proud Boy conspiracies as one (about which Ethan Nordean is complaining); I think they’re doing that — and excluding other key players who could be in one of the conspiracies, including all the most serious assaults committed by Proud Boy members — as a way to show how the cell structure used on the day worked together to serve a unified purpose, while also managing visibility on different parts of their ongoing investigation. For my purposes here, I’ll focus on the Leadership conspiracy, with the understanding that (notwithstanding Nordean’s complaints) DOJ credibly treats the others as the implementation of the conspiracy the Proud Boy Leaders themselves have laid out.

All of these conspiracies, as well as a disorganized militia conspiracy DOJ has been saying they’ll charge, share the same object: to stop, delay, or hinder Congress’ certification of the Electoral College win. Basically, all these conspiracies, as well as a hypothetical one that DOJ might use against Trump, would involve ensuring that he still had a route to remain in power, that he lived to fight another day. By themselves they did not involve a plan to remain in power (though Trump could be charged in a broader conspiracy attempting to do that, too).

They also all allege common Manners and Means (to be clear, these defendants are all presumed innocent and I’m speaking here of what DOJ claims it will prove). Those include:

  • Agreeing to plan and participate in an effort to obstruct the vote certification
  • Encouraging as many people as possible, including outside their own groups, to attend the operation
  • Funding the operation
  • Preparing to make participants in the operation as effective as possible, in all cases including communication methods and in most cases including some kind of defensive or offensive protections
  • Illegally entering the Capitol or its grounds and occupying that space during the period when Congress would otherwise have been certifying the vote

While all of those conspiracies follow the same model, there are some unique characteristics in four that deserve further mention:

Proud Boy Leaders Conspiracy: Operationally, those charged in the Proud Boy Leaders conspiracy managed to assemble a mob, including Proud Boy members (many organized in sub-cells like the Kansas City cell Billy Chrestman led), fellow travelers who met up and marched with the Proud Boys that morning, and those who knew to show up at 1PM (while Trump was still speaking). With apparent guidance from the charged co-conspirators, the Proud Boys managed to kick off the riot and — in the form of the Proud Boy Front Door co-conspirator Dominic Pezzola wielding a stolen shield — break into the building. Thus far (probably in part because Enrique Tarrio is not currently charged in this or any conspiracy), the government has been coy about what evidence it has of coordination with others, including at a December MAGA March in DC. Key planning steps, however, involve deciding not to show Proud Boy colors the day of the riot and fundraising to buy gear and support travel (Christopher Worrell got to DC on a bus paid for by the Proud Boys but that has not yet been charged in any conspiracy). On top of radios and blow horns, two Telegram channels — the larger of which had 60 members — appear to have played key roles in organizing events the day of the riot. To the extent that Proud Boys came armed, they appear to have done so individually, and thus far, DOJ has not included the worst assaults committed by Proud Boys in any of the conspiracies. Several of the charged co-conspirators started talking about war in the days and weeks after the election and those who gathered with the Proud Boys on the morning of the riot skipped Trump’s rally, making their focus on the vote certification much clearer than many others that day.

Oath Keeper Conspiracy: The indictment alleges this conspiracy started on November 9 with a plan both to use Antifa as a foil to excuse violence and in expectation that that violence would be Trump’s excuse to invoke the Insurrection Act and/or respond to that call. The conspiracy used the promise of serving as security — both at the rally and for Roger Stone and other “dignitaries” — to recruit people to come to DC, and in fact a number of the charged co-conspirators were present with Stone the morning of the riot. In addition to kitting out in various Oath Keeper gear at different events on the day of the event, the militia had a serious stash of weapons at the Ballston Comfort Inn in case things did turn violent. The key thing, operationally, this conspiracy achieved was to provide organized brawn to an effort to open a second front to the attack via the East Door of the Capitol. The nominal head of this conspiracy, Florida State head Kelly Meggs, claimed to have set up an alliance with other militias in Florida (he first made the claim a day after the militia had provided “security” for Stone at an event in Florida). Over the course of the investigation, the government has also gotten closer to alleging that Meggs expressed the desire to and took steps to target Nancy Pelosi personally while inside the Capitol.

3%er Southern California Conspiracy: The men charged in this conspiracy — who occupy the overlap between 3%ers and the anti-mask community in Southern California — organized themselves and others to come armed to the Capitol. As alleged, they started organizing formally in explicit response to Trump’s December 19 advertisement for the event. Both online and in an appearance by Russell Taylor at the rally on January 5, they called for violence. They organized in advance via Telegram chat and on the day with radios. Operationally, these men personally participated in the fighting on the west side of the Capitol (most never went in the building but the government contends they were in restricted space outside). But from a larger standpoint, these men form one intersection between the more formal Trump organization behind the rallies and a group of radicalized Trump supporters from across the country.

Disorganized Conspiracy: You’ve likely never heard of Ronnie Sandlin and Nate DeGrave, nor should you have. Their conspiracy (DOJ has not yet charged it but has been planning to do so since April) started when Sandlin responded to Trump’s calls for people to attend the event on December 23 and started looking online to join up with others. “Who is going to Washington D.C. on the 6th of January? I’m going to be there to show support for our president and to do my part to stop the steal and stand behind Trump when he decides to cross the rubicon.” They’re an excellent example of a bunch of guys — along with Josiah Colt, who entered into a cooperation agreement against the other two — who got radicalized via a messy stew of ideologies online, armed themselves for insurrection, raised money and traveled to DC together planning for violence, and allegedly engaged in assaults at two key points inside the Capitol that allowed the occupation of the Senate chamber, and in Colt’s case, Mike Pence’s chair itself. Here’s a video of the two (in orange and all black) fighting to get into the Senate just released today:

Colt has admitted (and may have GoPro video showing) that the three went from learning that Pence had refused Trump’s demand — the government doesn’t say whether they learned this via Trump’s tweet — to forcibly occupying the Senate in response. So while you haven’t heard of them and they’re not members of an organized militia, they still played a tactically critical role in forcibly occupying the Capitol in direct response to Trump’s exhortations.

Questions

There are still a slew of questions about Trump’s actions that have — publicly at least — not been answered. Some that would be pertinent to whether he could be charged with conspiracy include:

  • When Trump said, “stand back and stand by” to the Proud Boys on September 29 — after they had already threatened a Federal judge to serve Trump’s interest, and whose threats had been dismissed by Bill Barr as a technicality — did he intend to signal some kind of relationship with the Proud Boys as the Proud Boys in fact took it to be? Was this part of an agreement to enter into a conspiracy?
  • When both the Proud Boys and the Oath Keepers started planning their January 6 operation in the days after the election, speaking already then of being called by the President to commit violence, was that based on any direct communications, or was it based on things like the earlier Proud Boys comment?
  • When Proud Boys and Oath Keepers who would later lead the operation on January 6 formed an alliance to keep Trump in office in December at an event with Roger Stone, was Stone involved?
  • What conversations did Trump and Stone have about his pardon even as these militia plans were being put in place?
  • What evidence does DOJ have about the Proud Boys’ decision — and their communication of that decision to at least 60 people — not to attend the Trump speech but instead to form a mob that would later march on the Capitol and lead the breach of it while Trump was still speaking?
  • Did Trump time the specific lines in his speech to the Proud Boys’ actions, which were already starting at the Capitol?
  • What orders were given to the Park Police about various crowd sizes and planned events that explains their failure to prepare?
  • Trump told Acting Secretary of Defense Christopher Miller to use the National Guard to protect his protestors on January 3. On January 6, some Proud Boys expressed surprise that the Guard was not protecting them. Did the Proud Boys have reason to believe the Guard would not protect the Capitol but instead would protect them? Why was the Guard delayed 4 hours in responding? Why was there a 32 minute delay during a period when the Proud Boys and Oath Keepers were considering a second assault in relaying an order from Miller to the Guard Commander who had the Guard in buses waiting to deploy? Did the militias call off their second assault based on advance information that the Guard was finally being deployed?
  • Both Rudy and Trump made calls to Members of Congress on January 6 making specific asks for delays at a time when the rioters had already breached the building. Did that include a request to Paul Gosar, and did that result in the delay in evacuating the House side that led to Ashli Babbitt’s death, which Gosar (and Trump) have been key figures in celebrating? Would DOJ be able to get either Gosar or Tuberville’s testimony (they already have the voice mail Rudy left for Tuberville, and because Rudy’s phones have otherwise been seized, if they can show probable cause they have access to anything on his phone).
  • Rudy had texts from a Proud Boy affiliate within 9 days after the riot about implementing a plan to blame it all on Antifa. That guy  had, in turn, been in contact with at least six people at the riot. Were they in contact before and during the riot? Again, DOJ has the phones on which Rudy conducted those conversations, and they happen to have his cell location for other purposes, so the question is do they have probable cause to get the same data for the Jan 6 operation?

What a Trump conspiracy might look like

Even without answers to those questions, however, there are a number of things that Trump did that might form part of a conspiracy charge against him (this timeline from Just Security has a bunch more, including magnifying threats from people who would later take part in the insurrection). The Manners and Means would mirror those that appear in all the charged conspiracies:

  • Agreeing (and ordering subordinates) to plan and participate in an effort to obstruct the vote certification
  • Encouraging the Proud Boys to believe they are his army
  • Personally sowing the Big Lie about voter fraud to lead supporters to believe Trump has been robbed of his rightful election win
  • Asking subordinates and Republican politicians to lie about the vote to encourage supporters to feel they were robbed
  • Encouraging surrogates and campaign staffers to fund buses to make travel to DC easier
  • Using the January 6 rally to encourage as many people as possible to come to DC
  • Applauding violence in advance of January 6 and tacitly encouraging it on the day
  • Recruiting members of Congress to raise challenges to the vote count
  • Asking members of Congress to delay evacuation even as the rioters entered the building, heightening the chance of direct physical threat (and likely contributing to Ashli Babbitt’s death)
  • Asking Mike Pence to do something unconstitutional, then targeting him after he refused, virtually ensuring he would be personally threatened
  • Possibly muddling the line of command on which civilian agency would coordinate response, ensuring there would be none
  • Possibly taking steps to delay any Guard response at the Capitol
  • Possibly ignoring immediate requests from help from leaders of Congress

DOJ knows exactly what happened with Trump’s requests that DOJ serve as the civilian agency to lead response on Janaury 6, and some of the witnesses have given transcribed interviews to Congress and probably DOJ IG. Some details about which there remain questions — who delayed the National Guard — would be available to subpoena. The big question, and it’s a big one, is what kind of communications Trump had with members of Congress to ensure there was maximal conflict and physical risk on that day.

But much of this, including the illegal request of Mike Pence and the specific targeting of him in the aftermath, which directly affected the actions of the disorganized conspiracy, are already public. Both the computer Enrique Tarrio brought to DC and Rudy’s phones have been accessible if DOJ wanted to obtain a warrant for them.

None of this addresses the complexities of whether DOJ would charge a former President. None of this guarantees that DOJ will get key charged defendants to flip, whose cooperation might be necessary to move higher in the conspiracy.

I’m not saying DOJ will charge Trump.

But if they were considering it, it’s most likely this is how they would do so.

Update: Per Quake’s suggestion I’ve added the funding of buses.

Update: Reuters reports that FBI has found “scant” evidence of central coordination in the attack, specifically naming Stone.

Joseph Hackett’s Detention Argument: Guns, Operational Security, and Involvement in Kelly Meggs’ Plans for Nancy Pelosi

In a status hearing in the Oath Keeper conspiracy case on August 10, Kathryn Rakoczy revealed the government had provided “certain information” to defendants that might limit or shape defense theories. She then mentioned uncharged individuals or unindicted co-conspirators.

How Person Fifteen became D-2

Then yesterday, in a memo supporting continued pretrial detention for Joseph Hackett, the government rolled out a new way to refer to those who’ve entered into cooperation agreements against their former co-conspirators (and siblings): D-1 and D-4, as opposed to Person One, Person Two, and Person Ten.

D-1, who shared details of the organizational structure of the Florida Oath Keepers, may be Graydon Young, whom the indictment describes getting operational security instructions from Hackett shortly after he joined the Oath Keepers and who lives about 30 miles from Sarasota.

According to a defendant who has pled guilty pursuant to a cooperation plea agreement (and who will be referred to as D-1), Defendant Hackett was the “leader” of the Oath Keeper CPT5 group of approximately five men from the Sarasota area. According to D-1, the organization’s hierarchy had D-1 reporting to the CPT team leader (here, Hackett), who would report to the State lead (here, Kelly Meggs).

5 D-1 did not know what CPT stood for, but other Oath Keeper materials suggest it stood for “community preparedness team.”

D-4, who shared details of what Hackett did on January 7, may be Caleb Berry, who drove to and from the insurrection from Florida.

According to a defendant who has pled guilty pursuant to a cooperation plea agreement (and who will be referred to as D-4), Defendant Hackett was one of the members of the Oath Keepers who deposited long guns at the Comfort Inn Ballston on January 5 and collected them on January 7.

[snip]

In other words, while Defendant Hackett had his phone with him at the Capitol – he is seen on surveillance video holding it up to take a picture or video, and he admitted to D-4 that he had recorded a video that he later deleted – he took substantial efforts to ensure that he would not be linked to the phone, and that the phone would not be linked to the Capitol attack.

[snip]

According to D-4, on January 7, 2021, while Defendant Hackett was in a car driving from Washington, D.C., to Florida, with co-defendant Kelly Meggs and others, he admitted that he had already deleted from his iPhone a video he had taken while inside the Capitol the prior day

But the numbering system is bound to make Oath Keepers and conspiracists like Darren Beattie, Tucker Carlson, and Glenn Greenwald more paranoid. That’s because, if my assumptions above are correct, the counting appears to start with Young, not the first Oath Keeper known to enter a cooperation agreement, Jon Schaffer, who did so on April 14 (Young was second, Mark Grods was third, and Berry was fourth; the subtitle of this section is based on a wildarse guess that in this scheme, Grods, who was described before he flipped as Person Fifteen, would become D-2). That suggests someone else may have flipped, possibly between June 28 (when Grods pled) and July 7 (when Berry did).

Checking the East Door

The detention motion includes a long description of Hackett’s attempts to use operational security while hanging out with a bunch of people who weren’t, such as this picture showing him using his customary face covering while hanging out with a bunch of people who didn’t.

It also elaborates on a narrative that had shown up in earlier detention motions. It describes Hackett moving inside the Capitol with (it says) Kelly Meggs and Kenneth Harrelson, from the Rotunda to outside of Nancy Pelosi’s door. From there, Hackett walked back to the East Door of the Capitol, as if he was waiting for someone, and then returned to (the government presumes, though they may have video of this now from other defendants) Pelosi’s door.

Attached as Exhibit 3 is a compilation of Defendant Hackett’s movements within the Capitol for the approximately 12 minutes he remained inside, as captured on surveillance video. Notably, he spent most of his time with his co-conspirators Kelly Meggs, Moerschel, and Harrelson. At around 2:45 p.m., Defendant Hackett left the Rotunda through the south door, headed towards the House of Representatives (and the office of Speaker Pelosi).

[snip]

Defendant Hackett was not visible on camera for approximately one minute. He then went to check on the exterior doors through which the group entered, before returning to his coconspirators south of the Rotunda, near the Speaker’s office, where he remained, off camera, for approximately 5 minutes. This is the area and the time that Kelly Meggs and Harrelson were similarly not visible on surveillance video.

Exhibit 3 consists of 26 photos showing which of his actions from inside the Capitol were captured on CCTV — far more detail than the three paragraphs describing Hackett’s movement included in the indictment.

146. After they penetrated the Capitol building, CROWL, WATKINS, SANDRA PARKER, Young, STEELE, KELLY MEGGS, CONNIE MEGGS, HARRELSON, HACKETT, DOLAN, ISAACS, MOERSCHEL, Berry, and the others in the Stack collectively moved into an area inside the building known as the Capitol Rotunda.

[snip]

155. At2:45 p.m, KELLY MEGGS, CONNIE MEGGS, HARRELSON, HACKETT, DOLAN, MOERSCHEL, and Berry walked southbound outof the Rotunda and towards the House ofRepresentatives.

[snip]

158. At2:54 p.m. HACKETT and MOERSCHEL exited the Capitol.

After milling about the Rotunda, Hackett walks across it to talk to Meggs and Harrelson. Berry — who may be D-4, but who definitely has agreed to tell the government everything he knows — was present.

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

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

Joseph Hackett’s detention motion is about Kelly Meggs

The government largely substantiates their argument that Hackett is too much a threat to be released with their evidence that he’s a leader of an organized militia, armed, and went to great lengths — both in real time and after the fact — to obscure his actions. Hackett’s actions inside the Capitol — unlike many of his co-defendants, he is not charged with an additional resisting cops or civil disorder charge for anything he did inside the building — would seem to add little.

The government gets there, repeatedly, by tying Hackett’s own actions to those of Meggs, to whom (D-1 has testified) he reported in the Oath Keeper hierarchy. In Hackett’s detention motion, for example, the government adds to a text they had included, in similar associative fashion, in Kenneth Harrelson’s detention motion showing Meggs admitting that “we looked for[] her.

In Hackett’s detention memo, they show that the night of the election (they get the conversation from UTC wrong and falsely claim this happened very late the night of the election; it would have happened before polls closed in much of the country), Meggs was threatening to “go on a killing spree … Pelosi first.”

And, almost gratuitously, the government uses a reference to the DC Circuit’s decision upholding Christopher Worrell’s detention as a way to remind Judge Amit Mehta that Meggs had purportedly orchestrated a plan with the Proud Boys.

In Worrell, the D.C. Circuit held that the “district court’s dangerousness determination was [not] clearly erroneous,” based in part on the defendant’s “membership in and alleged coordination with the Proud Boys, some of whose members have been indicted for conspiring to attack Congress.” 848 F. App’x at 5-6.8 The same heightened dangerousness applies here, as the actions of self-proclaimed members of the Proud Boys and Oath Keepers are similarly situated in terms of their dangerousness based both on their personal actions and their coordination with their coconspirators. And not only have 18 Oath Keeper members and affiliates (Defendant Hackett included) been indicted in this case, but there is also evidence of coordination between the Oath Keepers and the Proud Boys. (See Gov’t Opp to Kelly Meggs’ Motion for Pretrial Release (ECF 98) at 8 (quoting December 22, 2020, Facebook message: “we have made Contact with PB and they always have a big group”)), and 10 (quoting December 25, 2020, Facebook message: “we have orchestrated a plan with the proud boys. I have been communicating with [redacted] the leader.”).)

It’s as if to say that Hackett is dangerous by himself, but he’s especially dangerous (or just as likely, important to flip) because he was part of what Kelly Meggs was involved with on the day of the insurrection.

The pictures included as an exhibit seem to suggest that not just Hackett — but also Connie Meggs (who would have spousal privilege but who also just got a new lawyer) and Caleb Berry, who may be D-4, a witness to efforts to try to destroy evidence about what happened during the insurrection — were witnesses to whatever Meggs was up to when he went to the office of the woman he threatened to kill on the night Biden won the election. What Hackett would know is why he went back to the door of the Capitol, as if awaiting someone.

According to the government, that makes him dangerous and likely to obstruct the investigation.

Update: This analysis adds to the evidence that Berry is the guy standing by the stair doors at the QRF hotel, and therefore almost certainly D-4.

Don’t Ignore What Trevor McFadden Has to Say about January 6

Tierney Sneed had a good article yesterday summarizing how starkly some of the judges presiding over January 6 cases have described it. For example, Sneed quoted liberally from the comments Randolph Moss made in sentencing Paul Hodgkins, comments that the government and other judges are quoting frequently.

“It means that it will be harder today than it was seven months ago for the United States and our diplomats to convince other nations to pursue democracy,” Judge Randolph Moss said at a July 19 sentencing hearing. “It means that it will be harder for all of us to convince our children and our grandchildren that democracy stands as the immutable foundation of this nation. It means that we are now all fearful about the next attack in a way that we never were.”

[snip]

Moss, a nominee of President Barack Obama, said that the attack “threatened not only the security of the Capitol, but democracy itself,” as he sentenced Paul Hodgkins, a rioter who pleaded guilty to obstructing an official proceeding.

“Our elected representatives from both political parties came together that day to perform their constitutional and statutory duty to declare, in the word of the statute, the person elected president,” Moss said at the July 19 hearing. “The mob’s objective was to stop that from happening. They were prepared to break the law to prevent Congress from performing its constitutional and statutory duty. That is chilling for many reasons.”

She includes judges appointed by Democrats (in addition to Moss, Amy Berman Jackson and Beryl Howell) and Republicans (Reggie Walton and Royce Lamberth).

As someone who thinks January 6 was exceptionally dangerous, it’s comforting to hear some judges agree. But I think that, to make a case about how judges are interpreting January 6, you would need to include the statements of a judge like Trevor McFadden, as well.

Of the District Judges carrying the heavy January 6 case load, four — Carl Nichols, Dabney Friedrich, Tim Kelly, and McFadden — are Trump appointees. Unlike some of Trump’s DC Circuit appointees, they’re all serious judges, with time as prosecutors or in other DOJ roles. Trump appointees aren’t necessarily going to be more favorable for January 6 defendants. While Nichols may have burnished his right wing bonafides clerking for Clarence Thomas, for example, that means he spent a lot of time with a Justice who is generally awful for non-corporate defendants’ rights. Former public defender and Obama appointee Tanya Chutkan has already made decisions (on bail) that are more favorable to defendants than the Trump appointees, for example, and I expect that to continue (the judge presiding over the Oath Keeper conspiracy case, Amit Mehta, has also served as a public defender).

Still, as recent Republican appointees, the Trump judges are an important read and voice on this investigation. Both by disposition and record on the court, Friedrich is probably the Trumpiest judge, but thus far the most interesting case she has been assigned is that of Guy Reffitt, the III Percenter who threatened his kids if they revealed his role in the riot; in that case, she approved an order allowing prosecutors to use his face to open a laptop with pictures from the insurrection. Nichols has a bunch of cases, such as the Pollocks or former Green Beret Jeffrey McKellop, that may get interesting down the road, but thus far his most active cases have involved presiding over the plea deals of a group of people arrested on trespass charges on the day of the attack. Tim Kelly is presiding over the bulk of the Proud Boy cases, which by itself gives him a pretty full docket (but is also why DOJ really fucked up by treating Ethan Nordean’s invocation of the Kavanaugh protests so blithely); his decisions thus far have been totally fair. The decisions of Trevor McFadden, who is presiding over the omnibus Tunnel assault case, have also been fair.

I think McFadden’s statements should be included in any read of what these judges think of January 6 because he has pulled a number of the ones that, because the defendants’ political speech has been implicated in the cases against them, will provide an early read about how a Republican with solid political ties will view the balancing of political speech and threat posed by January 6.

In addition to the Hunter and Kevin Seefried prosecution (the latter of whom was pictured carrying a Confederate flag through the Capitol), McFadden is presiding over the prosecutions of American Firster Christian Secor, Cowboys for Trump founder Couy Griffin, and Neo-Nazi Timothy Hale-Cusanelli.

In these cases, McFadden has expressed a fair amount of nuance in his views as he has presided over some genuinely difficult decisions.

He did take the way Hale-Cusanelli expressed his bigotry into account when he decided to hold him without bail (which was genuinely one of the most difficult detention decisions, in my opinion, and I was leaning towards release before McFadden made the decision), but in significant part because he may have acted on those views in the past and because his promises of action were alarming and intimidating his colleagues.

Having said all of that, we don’t typically penalize people for what they say or think. I think for purposes of my analysis, I need to — I’m trying to figure out whether this well-documented history of violent and racist language does suggest that the defendant poses a danger to the community.

[snip]

I also note the government’s evidence that the defendant appears to have surrounded himself, to a certain extent anyway, with people who have encouraged this behavior and people who may even agree with him. And I agree with the government’s concern regarding potential escalation of violence at this point given all that has occurred. And I am concerned for the safety of the confidential human source. I think given all of the facts here in the government’s motion, I mention it is pretty obvious to the defendant anyway who this person is. And I am concerned given all of the defendant[‘]s — all of the things he said in the past about committing violence against those who he feels are pitted against him. And given the sum evidence that the defendant has been willing to put these thoughts into action in the past, I think I do have a duty to protect that confidential source.

McFadden did, however, release someone with similarly repugnant views, Secor, even though Secor had been arming himself, in part because Secor had third party custodians — his parents — willing to vouch for him and put up a $200,000 bond. McFadden seems to be seeking to separate out hateful speech from where that speech turns violent and, if nothing else, that struggle deserves close attention.

But he’s also not viewing DOJ’s response to January 6 as driven predominantly by First Amendment issues. In a decision rejecting Griffin’s attempt to throw out one of the trespassing charges DOJ has used — which Griffin, because he did not enter the Capitol, was uniquely situated to challenge — McFadden dismissed Griffin’s claims of political discrimination.

The Government moved to detain Griffin before trial. It described Griffin’s political views as “inflammatory, racist, and at least borderline threatening advocacy.” Gov’t’s Mem. in Supp. of Pretrial Detention at 2, ECF No. 3. The Government also highlighted the gun rights advocacy of Cowboys for Trump, as well as allegedly violent statements made by Griffin.

[snip]

Finally, Griffin complains of discriminatory prosecution. He contends that he was targeted and “selectively charged . . . because the government loathed him and his politics.” Def.’s Reply at 3. “Few subjects are less adapted to judicial review than the exercise by the Executive of his discretion in deciding when and whether to institute criminal proceedings, or what precise charge shall be made, or whether to dismiss a proceeding once brought.” United States v. Fokker Servs. B.V., 818 F.3d 733, 741 (D.C. Cir. 2016) (cleaned up). So “the presumption of regularity” applies to “prosecutorial decisions and, in the absence of clear evidence to the contrary, courts presume that prosecutors have properly discharged their official duties.” Id.

Griffin comes up short on providing the “clear evidence” required for this Court to surmount the presumption of regularity—and the separation of powers. He points to “hundreds or perhaps thousands of other individuals ‘remaining’ in the same area” as him on January 6 who have not faced charges under 18 U.S.C. § 1752. Def.’s Mot. at 24. The Court hesitates to credit these unsupported numbers, especially as the Government continues to charge new individuals with offenses related to January 6. Nor is the Court concerned by the Government’s statements about Griffin when seeking to detain him pretrial; detention hearings require the Court to consider the defendant’s history and personal characteristics, as well as his potential dangerousness.

Griffin highlights the Government’s dismissal of charges under 18 U.S.C. § 1752 in “the interests of justice” in United States v. Christopher Kelly, 21-mj-128 (D.D.C. 2021). According to news reports, the Government moved to drop the charges after determining Kelly did not enter the Capitol building. See Feds move to drop charges for Capitol riot defendant, Politico, June 1, 2021, https://www.politico.com/news/2021/06/01/feds-capitol-riot-defendant-491514 (“‘Since he was not inside, in the interest of consistency in the investigation, the charges were dropped,’ the official said.”). Even so, the Government could rationally forgo federal prosecution as to most trespassers while deciding that Griffin’s leadership role in the crowd, position as an elected official, and more blatant conduct at the scene merited him different treatment. Not all differences amount to discrimination. In any event, presumably Kelly and the other uncharged protestors surrounding Griffin on the Capitol steps share his “politics,” Def.’s Reply at 3, complicating his complaint of bias here.

Griffin also points to the numerous uncharged protestors who broke through USCP barricades to occupy the Capitol steps on the eve of Justice Kavanaugh’s Senate confirmation vote. See Def.’s Notice at 2, ECF No. 39; see also Kavanaugh Protesters Ignore Capitol Barricades Ahead of Saturday Vote, Roll Call, Oct. 6, 2019, https://www.rollcall.com/2018/10/06/kavanaugh-protesters-ignore-capitol-barricades-ahead-ofsaturday-vote/. Disparate charging decisions in similar circumstances may be relevant at sentencing. Cf. 18 U.S.C. 3553(a)(c) (“the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct”). But this is not a basis to dismiss the charges. [My emphasis]

McFadden based his decision on this point in part on separation of powers (the basis for some of his decisions that have been deemed pro-Trump) and presumption of regularity, as well as basic facts. He deemed reasonable the possibility that prosecutors viewed Griffin’s leadership role to be more important to prosecute. He suggested he might sentence Griffin (if he were found guilty) leniently based on a comparison with similarly situated protestors against Kavanugh. But he also based his decision on the notion that Griffin’s threats of violence (raised in a detention challenge conducted before Michael Sherwin departed) could pose a genuine concern to the government.

McFadden is not treating this investigation as a witch hunt against people with right wing views.

But at the same time, McFadden has deviated from his colleagues’ more alarmist language to refer to January 6. At least twice in hearings (including on this Griffin challenge), McFadden admonished an AUSA who referred to January 6 as an insurrection. Have you charged anyone with insurrection, McFadden rightly asked. In a court room, these are not empty terms. They are also names of crimes. And DOJ needs to be careful not to accuse these defendants of crimes that — for whatever reason — they haven’t charged.

It’s not that McFadden thinks January 6 was not serious. In the same Hale-Cusanelli hearing, he described, “Obviously, the January 6th riot was a serious and sui generis threat to our country’s body politic.” But thus far (he has not presided over any of the six cases that have been sentenced yet), he has adopted a more moderate tone in discussing the event.

It’s true that, for the moment, some District Court Judges will frame how we think of January 6. In Munchel, the DC Circuit, too, described January 6 in grave terms (albeit in a passage of Robert Wilkins’ majority opinion not joined by Greg Katsas).

It cannot be gainsaid that the violent breach of the Capitol on January 6 was a grave danger to our democracy, and that those who participated could rightly be subject to detention to safeguard the community. Cf. Salerno, 481 U.S. at 748 (“[I]n times of war or insurrection, when society’s interest is at its peak, the Government may detain individuals whom the government believes to be dangerous.” (citations omitted)).

But ultimately, the six Republican appointees on the Supreme Court will have their say about what this event was — at least about whether hundreds of people committed felony obstruction in trying to halt the peaceful transfer of power. And with that in mind, commentators and DOJ would do well to watch carefully for the specific aspects of January 6 that Trevor McFadden finds most troublesome.

Terrorists in the Tunnel: The Omnibus Indictment for Officer Daniel Hodge’s Assault

One of the most spectacular assaults from January 6 was that charged against Patrick McCaughey for crushing Officer Daniel Hodges in a door.

McCaughey was charged early — on January 19. Over time, though, his indictment has become more than that — an indictment incorporating the worst assailants involved in a long brutal fight that took place in the Lower West Terrace entrance to the Capitol, deemed the Tunnel. First Tristan Chandler Stevens was added in March. Christopher Quaglin and David Judd were added in April. Robert Morss and Geoffrey Sills were added in June.

On August 4, the government rolled out a superseding indictment that adds two newly charged defendants, Steven Cappuccio and David Mehaffie, and incorporates Freddie Klein into the existing one; it was unsealed yesterday after Cappuccio and Mehaffie were arrested.

A notice filed in both the McCaughey and Klein dockets on July 29 explains the logic of this indictment.

All nine of these individuals are or will be charged primarily with assaultive conduct on law enforcement officers in and around the first landing of the Lower West Terrace as well as the Lower West Terrace archway, colloquially referred to as “the tunnel,” of the United States Capitol Building on January 6, 2021, between approximately 1:00 p.m. and 4:30 p.m. This tunnel entranceway to the Capitol Building, which is approximately ten feet wide, was the site of a significant physical confrontation with law enforcement for several hours. Each of these defendants was an active participant in the first wave of rioters to enter the tunnel between 2:40 and 3:18 p.m., at which time law enforcement successfully cleared the tunnel of rioters for the first time that day. Moreover, several of the defendants, including Mr. Klein, committed additional crimes on the first landing of the Lower Wester Terrace before reaching the tunnel for the first time. Accordingly, because the primary criminal conduct alleged against these individuals overlaps both temporally and geographically, and the evidence against them will be mutually admissible, including the testimony of witnesses and their victims, the government is preparing to charge this group in a single indictment and to present evidence against them in a single trial.

The same notice says that while there are “dozens” of people who committed crimes along with these defendants, they do “not expect” to add any other defendants to this one.

I’ve tried to lay out which defendants got charged with what crimes using what weapons in this table. Altogether, I think this indictment does four different things.

First, Cappuccio is charged with grabbing Hodges’ gas mask and pulling if off and then stealing his police baton.

McCaughey is the guy whose name is on this indictment and who has, since the days after the riot, been one of the chief focal points because of that assault. But Cappuccio was actually the guy alleged to be doing to the most harm to Hodges (a point that McCaughey nodded to in a successful bid to get pretrial release). Cappuccio has finally been added alongside McCaughey, charged in one of the signature assaults of the attack.

Second, this indictment charges Mehaffie along with a bunch of people he gave instructions to during the hours long assaults, as captured by his Sedition Hunter moniker, Tunnel Commander and explained by HuffPo.

Dave Mehaffie of Dayton, Ohio, was known to online investigators as #TunnelCommander because he was issuing orders to members of the mob who were attacking officers during a brutal battle at the lower western terrace entrance to the Capitol. Mehaffie was 86-AFO on the FBI’s Capitol wanted list, meaning he was wanted for assault on a federal officer.

A judge signed an arrest warrant for Mehaffie on Aug. 4 after he was indicted by a grand jury as part of an existing case.

Mehaffie was involved in one of the toughest battles of the Capitol siege. Members of the mob had stormed past police barriers and ascended the scaffolding set up for President Joe Biden’s inauguration on Jan. 20, and were attempting to break into the building. During the “medieval” battle, members of the pro-Trump mob kidnapped D.C. Metropolitan Police Officer Michael Fanone, who was repeatedly electroshocked. Rosanne Boyland, a pro-Trump member of the mob, was trampled during the brutal clash. The woman’s brother-in-law said that former President Donald Trump “incited a riot” that killed one of his “biggest fans.”

Alone among these nine defendants, Mehaffie is not charged with assault using a dangerous weapon and/or directly striking the officer victim (that’s roughly speaking the difference between the 111(a)(1) charges and the 111(b) charges in the table). Instead, Mehaffie is charged with one count of assault and abetting assault, lasting from 2:40 to 3:18, presumably amounting to his directing the assaults of the others, along with civil disorder and obstruction. But that doesn’t convey the seriousness of his actions, because he had a role in making the other assaults more effective.

That’s why including him on this omnibus indictment will be important. By charging all nine men together, DOJ will be able to show how these men, who aren’t alleged to have known each other before the assault and aren’t charged with conspiracy, nevertheless worked in concert, always ensuring there were people at the front to press the assault, with Mehaffie playing a key role in making it all work (Morss, too, had a key role in directing traffic in the tunnel, which will also become clearer at trial with all charged together). In isolation, these men’s assaults can be minimized. In concert, their actions had a devastating effect.

Finally, Klein’s inclusion does more than just get him added to what will be a very powerful trial. He was originally indicted, on March 19, with just one count of assault. By April 5, in a detention memo, DOJ described three different assaults. So DOJ was bound to supersede his initial indictment in any case. This superseding indictment charges him in six different assaults (I think I’ve bolded the ones that appeared in the April detention memo), the culmination of seven months of video review to understand his role.

It also might get Klein detained. Of the seven men who had already been charged, Stevens was released on arrest, McCaughey got released with a huge bond payment, and Judd was released after review. The government successfully fought to keep Quaglin and Morss detained, sustaining Quaglin’s detention on appeal.

Klein also fought successfully for release. Along the way, his attorneys pointed to the conduct of McCaughey and two other of his now co-defendants, claiming they were more dangerous.

Contrast these cases, and the allegations against Mr. Klein, with others detained pretrial and alleged to have engaged in far more egregious conduct including having pinned an officer between a door and a riot shield (McCaughey – 21-cr-00040); violently assaulting an officer in the side of the neck with a riot shield and spraying chemical irritant directly into the eyes of an officer (Quaglin – 21-mj-00355); repeatedly throwing objects, including a pole, a desk drawer, some type of pipe/metal rod, and a flagpole at officers (Jenkins – 21-cr-00245); lighting and throwing fireworks at officers (Judd – 21-mj-00334), and striking an officer so violently with a pole that it shatters on his riot shield (Palmer – 21-mj-00301).

John Bates released Klein (in an opinion that significantly lowered the bar on releasing violent assault defendants). And while the release itself was a defensible decision, Bates’ logic (in my opinion) was not. Bates treated Klein’s assault on the Capitol, as a State Department official, as a breach of trust, but also credited him with having held a security clearance, as if having a cleared individual attack his own government isn’t particularly dangerous (as the government successfully argued in Timothy Hale-Cusanelli’s case). Crazier still, Bates said that Klein’s assaults weren’t as bad as others because his objective was not to injure the police but instead to occupy the tunnel, the use of violence for political end.

The government’s contention that Klein engaged in “what can only be described as hand-to-hand combat” for “approximately thirty minutes” also overstates what occurred. See Gov’t’s Br. at 6. Klein consistently positioned himself face-to-face with multiple officers and also repeatedly pressed a stolen riot shield against their bodies and shields. His objective, as far as the Court can tell, however, appeared to be to advance, or at times maintain, the mob’s position in the tunnel, and not to inflict injury. He is not charged with injuring anyone and, unlike with other defendants, the government does not submit that Klein intended to injure officers. Compare Hr’g Tr. 57:12–18 (government conceding that the evidence does not establish Klein intended to injure anyone, only that “there was a disregard of care whether he would injure anyone or not” in his attempt to enter the Capitol), with Gov’t’s Opp’n to Def.’s Mot. to Reopen Detention Hearing & For Release on Conditions, ECF No. 30 (“Gov’t’s Opp’n to McCaughey’s Release”), United States v. McCaughey, III, 21-CR-040-1, at 11 (D.D.C. Apr. 7, 2021) (government emphasizing defendant’s “intent to injure” an officer who he had pinned against a door using a stolen riot shield as grounds for pretrial detention). And during the time period before Klein obtained the riot shield, he made no attempts to “battle” or “fight” the officers with his bare hands or other objects, such as the flagpole he retrieved. That does not mean that Klein could not have caused serious injury— particularly given the chaotic and cramped atmosphere inside the tunnel. But his actions are distinguishable from other detained defendants charged under § 111(b) who clearly sought to incapacitate and injure members of law enforcement by striking them with fists, batons, baseball bats, poles, or other dangerous weapons.

[snip]

Klein’s conduct was forceful, relentless, and defiant, but his confrontations with law enforcement were considerably less violent than many others that day, and the record does not establish that he intended to injure others. [my emphasis]

Klein is now the co-defendant of McCaughey, Judd, and Quaglin, charged in more assaults than McCaughey and Judd, which might make his own prior comparison with them backfire. More importantly, Klein’s inclusion in this larger indictment makes it clear how his actions cannot be viewed — as Bates did — as isolation actions, but were instead an integral part of some of the worst clashes of the day.

I have no idea whether DOJ will use this superseding indictment to move to get Klein’s release revoked. But he’s on the edge anyway: since his release, he has had several release violations for things like drinking enough wine at dinner with his mom that he decided to just stay over the night in violation of curfew. Thus far, John Bates hasn’t deemed Klein’s disrespect for the authority of the Court to be worth detaining him over. Trevor McFadden, under whom Klein’s case will be moved, has similarly been reluctant to revoke bail (though the most notable January 6 defendant where he did revoke bail, Brandon Fellows, is only charged with obstruction and may have mental health issues contributing to his refusal to follow release conditions). But he has far less patience with defendants who openly disdain the Court’s authority, as Klein has.

Last week, I noted that the government had made a record that they are entitled to invoke a terrorist enhancement for Scott Fairlamb at sentencing (his sentencing has been bumped to November to give the probation office time to finish the presentencing memo).

Like Fairlamb, all these defendants are also charged with obstruction. If proven at trial, that would mean a jury found there was an intent behind their serial, extended, coordinated assaults: to occupy the Capitol (as even Judge Bates described it) and in so doing to halt the vote count. These men are accused of violence in the service of preventing the peaceful transfer of power. And as such, I would be shocked if on this most spectacular of assault trials, DOJ didn’t also go after a terrorism enhancement.

In his testimony before the January 6 Commission, Jamie Raskin asked Hodges why he referred to terrorism or terrorists 15 times. Hodges read the legal definition of domestic terrorism:

Activities that involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any state, and, b, appear to be intended to intimidate or coerce a civilian population, or, to influence the policy of a government by intimidation or coercion.

If this omnibus case goes to trial it will demonstrate how all these assaults worked in concert to sustain an assault on our democracy for thirty-eight minutes. Officer Hodges may have his vindication at labeling these men terrorists.

A Tale of Three Capitol Visitor Center Arrests: Why January 6 Is Different from Portland

By the end of the month, all of six January 6 defendants who were arrested in the middle of the riot will almost certainly have pled guilty to misdemeanor trespassing offenses.

The four guilty pleas, thus far, have led me to realize how thin their statements of offense are as compared to others who have pled guilty, even those pleading to the same trespassing offense:

The cornerstone to all these statements of offense is this paragraph describing how, shortly before 2:30 on January 6, after some Capitol Police officers told some rioters to leave and they didn’t, the officers started arresting people (the SOOs vary about whether the defendant claims not to have heard or, as with Curzio, admitted that he refused to leave).

10. Video surveillance depicted Sweet and Fitchett walking down a corridor in the Capitol Visitors Center, which is part of the Capitol building, shortly after 2:30 p.m., toward the end of the corridor area where U.S. Capitol Police officers had formed a defensive line. Other rioters also gathered in this corridor. The officers issued commands for the rioters to leave the building. Sweet maintains he did not hear those commands. When rioters refused their commands, the officers began arresting individuals who had unlawfully entered the building, including Sweet and Fitchett. The Federal Bureau of Investigation (“FBI”) uncovered no evidence that Sweet and Fitchett engaged in violent or disruptive conduct at the Capitol grounds or inside the building.

In Fitchett’s case, the government doesn’t even claim to know when she took a video of her approach to the Capitol with Sweet.

9. Sometime during the early afternoon of January 6, 2021, Fitchett recorded a video of herself and Sweet approaching an entrance into the Capitol with a large crowd around them yelling and making banging noises. Fitchett, with the camera turned on herself, stated in a raised voice, “We are storming the Capitol. We have broken in. Patriots arise.” Shortly after then, Sweet and Fitchett unlawfully entered the Capitol.

I find that interesting because these six arrests, almost alone of the the 560-some arrests so far, replicate a typical arrest from unrest in Portland where — according to a DOJ filing submitted in Garret Miller’s case last month — there’s just far less evidence with which to hold rioters accountable.

More fundamentally, the 45 Oregon cases serve as improper “comparator[s]” because those defendants and Miller are not similarly situated. Stone, 394 F. Supp. 3d at 31. Miller unlawfully entered the U.S. Capitol and resisted the law enforcement officers who tried to move him. Doc. 16, at 4. He did so while elected lawmakers and the Vice President of the United States were present in the building and attempting to certify the results of the 2020 Presidential Election in accordance with Article II of the Constitution. Id. at 2-3. And he committed a host of federal offenses attendant to this riot, including threatening to kill a Congresswoman and a USCP officer. Id. at 5-6. All this was captured on video and Miller’s social-media posts. See 4/1/21 Hr’g Tr. 19:14-15 (“[T]he evidence against Mr. Miller is strong.”). Contrast that with the 45 Oregon defendants, who—despite committing serious offenses—never entered the federal courthouse structure, impeded a congressional proceeding, or targeted a specific federal official or officer for assassination. Additionally, the government’s evidence in those cases often relied on officer recollections (e.g., identifying the particular offender on a darkened plaza with throngs of people) that could be challenged at trial—rather than video and well-documented incriminating statements available in this case. These situational and evidentiary differences represent “distinguishable legitimate prosecutorial factors that might justify making different prosecutorial decisions” in Miller’s case.

In fact, the affidavit used to arrest the six January 6 trespassing defendants shows that the Capitol Police officer who wrote it within a day of fighting rioters for what was likely hours, actually got the time of the arrest wrong by half an hour, an error which would have made it hard to charge felony obstruction if DOJ had considered it with these defendants.

In this context, at or about 3:00 p.m., I responded along with other members of the Capitol Police to a disturbance involving several dozen people who were inside the United States Capitol without lawful authority, under the circumstances described above. I observed the crowd moving together in a disorderly fashion, and I observed members of the crowd engage in conduct such as making loud noises, and kicking chairs, throwing an unknown liquid substance at officers, and spraying an unknown substance at officers.

In a loud and clear voice, Capitol Police Officers ordered the crowd to leave the building. The crowd did not comply, and instead responded by shouting and cursing at the Capitol Police Officers. I observed that the crowd, which at the time was located on the Upper Level of the United States Capitol Visitors Center near the door to the House Atrium, included the six individuals who were later identified to be Cindy Fitchett, Michael Curzio, Douglas Sweet, Terry Brown, Bradley Rukstales, and Thomas Gallgher. These six individuals were positioned towards the front of the crowd, close to the Capitol Police Officers who were responding, and to the officer who issued the order to leave. The six individuals, like others in the larger crowd, willfully refused the order to leave.

Even though they were caught on surveillance video, the Capitol Visitors Center was one of the least filmed places in the riot. To make things worse, Capitol Police Officers were not equipped with Body Worn Cameras that day, so there’s no record of this arrest.

In other words, for six people who entered the building, the FBI may have remarkably little evidence of their doing so, but because they alone among the thousands who did enter were arrested onsite and so were prosecuted.

It’s worth comparing those six arrests and resolution with the prosecutions of three others who were also in the Capitol Visitor’s Center at almost precisely that time, because it demonstrates how the FBI had so much other evidence covering the actions of most defendants.

First, there’s Robert Gieswein. He was arrested quite early in the investigation — on January 19 — based largely on his presence, kitted out in tactical gear and carrying a baseball bat, in some of the most spectacular scenes of the assault on the Capitol, including the initial breach with Dominic Pezzola.

But his initial arrest affidavit written ten days after the riot did not mention Gieswein’s actions inside the CVC at all.

That was only revealed in detention filing submitted in June. It revealed that, at about the same time and place where Curzio and others were being arrested, Gieswein was allegedly assaulting cops to avoid arrest.

Gieswein later went near the Capitol Visitor Center, where he and other rioters encountered a group of U.S. Capitol Police officers, and he again deployed his aerosol spray on those officers. Although there is not video of this incident that undersigned counsel is aware of, the defendant is charged with spraying and then assaulting a U.S. Capitol Police officer in the Capitol Visitor Center. According to that Officer, a person matching largely matching Gieswein’s description took out an unknown chemical-type aerosol agent, which one officer likened to OC spray, and sprayed a group of officers, causing irritation of the eyes. One officer recalls the person who matches the defendant’s description throwing punches at police. When the Capitol Police took the defendant to the ground to arrest him, other individuals around the defendant advanced on the officers, pushed them back, and freed Gieswein, who fled the area. Parts of the aftermath of this incident, including the defendant and Capitol police on the ground, and the defendant fleeing, are captured on Capitol surveillance video.

This is one of the rare assaults charged in January 6 of which there is not (yet, as far as we know) video evidence. If that were all Gieswein were arrested on — if he wasn’t also charged with assaulting two other sets of officers and obstruction — then his lawyers might be pushing to dismiss or plead down the charges, as happened with many Portland defendants.

But the rest of his actions were spectacularly caught on film, including this scene where he sprayed cops with some toxin.

In other words, in Gieswein’s case, police tried, but failed, to arrest him on January 6, probably along with the six who pled to misdemeanors. It took some days to track him down to Colorado and the FBI never recovered the clothes he wore or his phone. But even though he may have succeeded in hiding or destroying evidence he himself controlled, and even though one of his alleged assaults occurred in one of the few blind spots in the riot, there’s still a lot implicating him in the attack on the Capitol.

It took far longer to track down Jamie Buteau, along with his wife, Jennifer. They weren’t arrested until June 23, in Jamie’s case on charges of assault and civil disorder on top of trespassing.

At the moment everyone else discussed in this post was either being arrested or allegedly assaulting cops to avoid arrest, the Buteaus were nearby, with Jamie allegedly throwing chairs at cops on several occasions. As with Gieswein, there appears to be no Capitol CCTV of one of his assaults, one of several times he threw chairs, either. But a video posted to Parler captured him picking up a chair.

And while the closing doors hid Buteau at the moment he allegedly threw that chair (as the door also hid Gieswein’s face in the photo above), the Parler video captured the chair he had just been holding flying through the air.

By the time of their arrest, FBI had tracked the Buteaus from the moment they entered the Capitol at 2:25, to their presence at between the Crypt and CVC from 2:29 to 2:31, to their entry into the CVC just behind Gieswein, back through the Crypt at 2:44, and then out the South Door at 2:46.

Like Gieswein, the Buteaus appear to have succeeded in destroying some evidence of their involvement in the riot. Jennifer was livestreaming onto Facebook the day of the riot, but she deleted that livestream and replaced it with a post blaming Antifa.

But several tipsters — including a former co-worker of another person with whom Buteau was at the riot — told the FBI about her live posts.

Jennifer also changed her Facebook profile to claim she was a Democrat, but one of her family members anonymously informed the FBI about that attempt to deceive — and also offered that both Buteaus had been in a HBO VICE show that another tipster (possibly one of the Sedition Trackers) found based off a BOLO picture showing Jamie’s face. Altogether, four different tipsters were able to provide the FBI information that the FBI (remarkably, in the case of the HBO appearance) wasn’t able to find on their own.

There were blind spots in the panopticon of the January 6 insurrection. But even defendants alleged to have committed assaults in one of those blind spots were still trackable by a slew of other evidence.

The Rebellion Rorschach: The Many Faces of the January 6 Investigation

Four different things happened yesterday to demonstrate how differently judges presiding over the January 6 trial view it, and how little they seem to understand the intersecting nature of this investigation.

DC Circuit ignores its own language about co-conspirators and abettors

The final event was the reversal, by a per curiam panel including Karen Henderson, Judith Rogers, and Justin Walker, of Thomas Hogan’s decision to hold George Tanios pretrial.

As a reminder, Tanios is accused of both conspiring and abetting in Julian Khater’s attack on three cops, including Brian Sicknick, with some toxic substance.

I’m not going to complain about Tanios’ release. By way of comparison, Josiah Colt has never been detained, and he pled out of a conspiracy with Ronnie Sandlin and Nate DeGrave in which they, like Tanios and Khater, planned to arm themselves before traveling to DC together, and in which Sandlin and DeGrave, like Khater, are accused of assaulting cops that played a key role in successfully breaching the Capitol. The main difference is that Khater’s attack injured the three officers he targeted using a toxic spray purchased by Tanios.

It’s how the DC Circuit got there that’s of interest. Tanios had argued that Hogan had used the same language from the Munchel decision everyone else does, distinguishing those who assault or abet in assaulting police which the DC Circuit has returned to in upholding detention decisions since, and in so doing had applied a presumption of detention for those accused of assault and abetting assault.

In assessing Tanios’s risk of danger, the District Court placed too much emphasis on this sentence from Munchel: “In our view, those who actually assaulted police officers and broke through windows, doors, and barricades, and those who aided, conspired with, planned, or coordinated such actions, are in a different category of dangerousness than those who cheered on the violence or entered the Capitol after others cleared the way.” Id. at 1284.

This is only one line in a ten-page opinion written by Judge Wilkins. It is dicta. It was not quoted or adopted by Judge Katsas’s separate opinion. This line does not create a new approach for evaluating detention issues in this Circuit. It does not mandate that defendants be placed in two separate categories. It does not require a separate, harsher treatment for defendants accused of specific violent offenses. Critically, it does not create a presumption of future dangerousness and should not create a presumption of detention. Rather, it seems that the line is merely intended to remind district court judges that violence is one factor to consider in making a determination about dangerousness. [my emphasis]

The DC Circuit specifically ruled against Tanios on his claim that Hogan had misapplied Munchel.

[A]ppellant has not shown that the district court applied a presumption of detention in contravention of the Bail Reform Act and precedent, see United States v. Khater, No. 21-3033, Judgment at *2 (D.C. Cir. July 27, 2021)

They had to! As their citation makes clear, just two weeks ago, a per curiam panel of Patricia Millet, Robert Wilkins, and Ketanji Brown Jackson upheld the very same detention order (which covered both defendants), holding that the same line of the Hogan statement that Tanios pointed to did not do what both Tanios and Khater claimed it had, presume that assault defendants must be detained.

Appellant contends that the district court misapplied our decision in United States v. Munchel, 991 F.3d 1273 (D.C. Cir. 2021), by making a categorical finding, based solely on the nature of the offense charged (assaultive conduct on January 6), that no conditions of release could ever mitigate the per se prospective threat that such a defendant poses. If the district court had proceeded in that fashion and applied some sort of non-rebuttable presumption of future dangerousness in favor of detention, it would have been legal error. See id. at 1283 (“Detention determinations must be made individually and, in the final analysis, must be based on the evidence which is before the court regarding the particular defendant. The inquiry is factbound.”) (quoting United States v. Tortora, 922 F.2d 880, 888 (1st Cir. 1990)). However, while the district court stated, “Munchel delineates an elevated category of dangerousness applied [to] those that fall into the category that necessarily impose a concrete prospective threat,” the district court also explained, “I think Munchel does not set a hard-line rule. I don’t think that the categories are solely determinative, but it creates something like a guideline for the Court to follow . . . .” Detention Hr’g Tr. at 42:21-24; 43:11-13, ECF No. 26 (emphasis added). In making its ruling, the district court discussed at length the facts of this case, and expressly noted that “we have to decide whether the defendant is too dangerous based upon that conduct to be released or is not,” “every circumstance is different in every case, and you have to look at individual cases,” and that “the government may well not overcome the concrete and clear and convincing evidence requirement.” Id. at 43:8-10, 43:16-18, 43:20-21. Based on our careful review of the record, we find that the district court made an individualized assessment of future dangerousness as required by the Bail Reform Act and that appellant has not shown that the district court applied an irrefutable presumption of mandatory detention in contravention of the statute and our precedent.

Yesterday’s panel cited the earlier affirmation of the very same opinion that detained Tanios.

It’s in distinguishing Tanios where the panel got crazy. The panel could have argued that the evidence that Tanios conspired with or abetted Khater’s assault was too weak to hold him — Tanios made a non-frivolous argument that in refusing to give Khater one of the two canisters of bear spray he carried, he specifically refused to join in Khater’s attack on the cops. But they don’t mention conspiracy or abetting charges.

Instead, the DC Circuit argued that Hogan clearly erred in finding Khater’s accused co-conspirator to be dangerous.

[T]he district court clearly erred in its individualized assessment of appellant’s dangerousness. The record reflects that Tanios has no past felony convictions, no ties to any extremist organizations, and no post-January 6 criminal behavior that would otherwise show him to pose a danger to the community within the meaning of the Bail Reform Act. Cf. Munchel, 991 F.3d at 1282-84 (remanding pretrial detention orders where the district court did not demonstrate it adequately considered whether the defendants present an articulable threat to the community in light of the absence of record evidence that defendants committed violence or were involved in planning or coordinating the events of January 6).

Munchel isn’t actually a precedent here, because that decision remanded for further consideration. The DC Circuit ordered Hogan to release Tanios. Crazier still, in citing the same passage from Munchel everyone else does, the DC Circuit edited out the language referring to those who abetted or conspired with those who assaulted cops, the language used to hold Tanios. It simply ignores the basis Hogan used to hold Tanios entirely, his liability in a premeditated attack he allegedly helped to make possible, and in so doing argues the very same attack presents a danger to the community for one but not the other of the guys charged in it.

If this were a published opinion, it would do all kinds of havoc to precedent on conspiracy and abetting liability. But with two short paragraphs that don’t, at all, address the basis for Tanios’ detention, the DC Circuit dodges those issues.

Beryl Howell has no reasonable doubt about January 6

Earlier in the day, DC Chief Judge Beryl Howell grew exasperated with another plea hearing.

This time, it was Glenn Wes Lee Croy, another guy pleading guilty to a misdemeanor “parading” charge. The plea colloquy stumbled on whether Croy should have known he wasn’t permitted on the Capitol steps — he claimed, in part, that because this was his first trip to DC, he didn’t know he shouldn’t have been on the steps, even in spite of the barricades. Croy was fine admitting he shouldn’t have been in the building, though.

Things really heated up when Howell started asking Croy why he was parading (Josh Gerstein has a more detailed description of this colloquy here).

Under oath, pleading to a misdemeanor as part of a deal that prohibits DOJ from charging Croy with anything further for his actions on January 6, he made some kind of admission that Howell took to mean he was there to support Trump’s challenge to the election, an admission that his intent was the same as the intent required to charge obstruction of the vote count.

When she quizzed AUSA Clayton O’Connor why Croy hadn’t been charged with felony obstruction for his efforts to obstruct the vote certification, the prosecutor explained that while the government agreed that contextually that’s what Croy had been doing, the government didn’t find direct evidence that would allow him to prove obstruction beyond a reasonable doubt, a sound prosecutorial decision.

O’Connor is what (with no disrespect intended) might be deemed a journeyman prosecutor on the January 6 cases. He has seven cases, five of which charge two buddies or family members. Of those, just Kevin Cordon was charged with the obstruction charge Howell seems to think most defendants should face, in Cordon’s case for explicitly laying out his intent in an interview the day of the riot.

We’re here to take back our democratic republic. It’s clear that this election is stolen, there’s just so much overwhelming evidence and the establishment, the media, big tech are just completely ignoring all of it. And we’re here to show them we’re not having it. We’re not- we’re not just gonna take this laying down. We’re standing up and we’re taking our country back. This is just the beginning.

O’Connor is prosecuting Clifford Mackrell and Jamie Buteau for assault and civil disorder. But otherwise, all his cases are trespass cases like Croy’s (including that of Croy’s codefendant Terry Lindsey).

This was the guy who, with no warning, had the task of explaining to the Chief Judge DOJ’s logic in distinguishing misdemeanor cases from felonies. Unsurprisingly, it’s all about what the government thinks they can prove beyond a reasonable doubt, based on evidence like that which Cordon shared with a journalist or, just as often, what people write in their social media accounts. This process has made sense to the few of us who have covered all these cases, but like O’Connor, Howell is dealing primarily with the misdemeanor cases and my not see how DOJ appears to be making the distinction.

Howell also demanded an explanation from O’Connor in Croy’s sentencing memo why DOJ is not including the cost of the National Guard deployment in the restitution payments required of January 6 defendants.

Both according to its own prosecutorial guidelines and the practical limitations of prosecuting 560 defendants, DOJ can’t use a novel application of the obstruction statute to charge everyone arrested in conjunction with January 6 with a felony. It’s a reality that deserves a better, more formal explanation than the one O’Connor offered the Chief Judge extemporaneously.

Trevor McFadden believes a conspiracy to overthrow democracy is not a complex case

Meanwhile, the Discovery Coordinator for the entire investigation, Emily Miller, missed an opportunity to explain to Trevor McFadden the logic behind ongoing January 6 arrests.

In advance of a hearing for Cowboys for Trump founder Couy Griffin, prosecutor Janani Iyengar submitted a motion for a 60-day continuance to allow for the government to work through discovery. She brought Miller along to a status hearing to explain those discovery challenges to McFadden, who had complained about them in the past and refused to toll the Speedy Trial Act in this case. Because Iyengar recently offered Griffin a plea deal, his attorney Nick Smith was fairly amenable to whatever McFadden decided.

Not so the judge. He expressed a sentiment he has in this and other cases, that the government made a decision to start arresting immediately after the attack and continues to do so. “There seems to be no end in sight,” McFadden complained, suggesting that if DOJ arrested someone in three months who offered up exculpatory evidence that affected hundreds of cases, those would have to be delayed again. In spite of the fact that several prosecutors have explained that the bulk of the evidence was created on January 6, McFadden persists in the belief that the trouble with discovery is the ingestion of new evidence with each new arrest.

Miller noted that the government could start trials based on the Brady obligation of turning over all exculpatory evidence in their possession, so future arrests wouldn’t prohibit trials. The problem is in making the universe of video evidence available to all defense attorneys so they have the opportunity of finding evidence to support theories of defense (such as that the cops actually welcomed the rioters) that would require such broad review of the video.

McFadden then suggested that because Griffin is one of the rare January 6 defendants who never entered the Capitol, Miller’s team ought to be able to segregate out an imagined smaller body of evidence collected outside. “Were that it were so, your honor,” Miller responded, pointing out that there were thousands of hours of surveillance cameras collected from outside, the police moved in and outside as they took breaks or cleaned the bear spray from their eyes so their Body Worn Cameras couldn’t be segregated, and the Geofence warrant includes the perimeter of the Capitol where Griffin stood.

McFadden then said two things that suggested he doesn’t understand this investigation, and certainly doesn’t regard the attack as a threat to democracy (he has, in other hearings, noted that the government hasn’t charged insurrection so it must not have been one). First, he complained that, “In other cases,” the government had dealt with a large number of defendants by giving many deferred prosecutions or focusing just on the worst of the worst, a clear comparison to Portland that right wingers like to make. But that’s an inapt comparison. After noting the data somersaults one has to do to even make this comparison, a filing submitted to Judge Carl Nichols in response to a selective prosecution claim from Garret Miller explained the real differences between Portland and January 6: There was far less evidence in the Portland cases, meaning prosecutions often came down to the word of a cop against that of a defendant and so resulted in a deferred prosecution.

This comparison fails, first and foremost, because the government actually charged nearly all defendants in the listed Oregon cases with civil-disorder or assault offenses. See Doc. 32-1 (Attachments 2-31). Miller has accordingly shown no disparate treatment in the government’s charging approaches. He instead focuses on the manner in which the government ultimately resolved the Oregon cases, and contrasts it with, in his opinion, the “one-sided and draconian plea agreement offer” that the government recently transmitted to him. Doc. 32, at 6. This presentation—which compares the government’s initial plea offer to him with the government’s final resolution in 45 hand-picked Oregon cases—“falls woefully short of demonstrating a consistent pattern of unequal administration of the law.”3 United States v. Bernal-Rojas, 933 F.2d 97, 99 (1st Cir. 1991). In fact, the government’s initial plea offer here rebuts any inference that that it has “refused to plea bargain with [Miller], yet regularly reached agreements with otherwise similarly situated defendants.” Ibid.

More fundamentally, the 45 Oregon cases serve as improper “comparator[s]” because those defendants and Miller are not similarly situated. Stone, 394 F. Supp. 3d at 31. Miller unlawfully entered the U.S. Capitol and resisted the law enforcement officers who tried to move him. Doc. 16, at 4. He did so while elected lawmakers and the Vice President of the United States were present in the building and attempting to certify the results of the 2020 Presidential Election in accordance with Article II of the Constitution. Id. at 2-3. And he committed a host of federal offenses attendant to this riot, including threatening to kill a Congresswoman and a USCP officer. Id. at 5-6. All this was captured on video and Miller’s social-media posts. See 4/1/21 Hr’g Tr. 19:14-15 (“[T]he evidence against Mr. Miller is strong.”). Contrast that with the 45 Oregon defendants, who—despite committing serious offenses—never entered the federal courthouse structure, impeded a congressional proceeding, or targeted a specific federal official or officer for assassination. Additionally, the government’s evidence in those cases often relied on officer recollections (e.g., identifying the particular offender on a darkened plaza with throngs of people) that could be challenged at trial—rather than video and well-documented incriminating statements available in this case. These situational and evidentiary differences represent “distinguishable legitimate prosecutorial factors that might justify making different prosecutorial decisions” in Miller’s case. Branch Ministries, 211 F.3d at 145 (quoting United States v. Hastings, 126 F.3d 310, 315 (4th Cir. 1997)); see also Price v. U.S. Dep’t of Justice, 865 F.3d 676, 681 (D.C. Cir. 2017) (observing that a prosecutor may legitimately consider “concerns such as rehabilitation, allocation of criminal justice resources, the strength of the evidence against the defendant, and the extent of a defendant’s cooperation” in plea negotiations) (brackets and citation omitted).

3 Miller’s motion notably omits reference to the remaining 29 Oregon cases in his survey, presumably because the government’s litigation decisions in those cases do not conform to his inference of selective treatment. [my emphasis]

McFadden ended with one of his most alarming comments. He said something to the effect of, he doesn’t feel that the January 6 investigation was a complex type of case akin to those (often white collar cases) where a year delay before trial was not that unusual.

This was a fairly breathtaking comment, because it suggests that McFadden sees this event as the magical convergence of thousands of criminals at the Capitol rather than the result of a sustained conspiracy to get a mass of bodies to the building, a conspiracy that started at least as early as the days after the election. While McFadden’s highest profile January 6 case is a sprawling assault case against Patrick McCaughey and others (the one that trapped Officer Daniel Hodges in the Capitol door), this view seems not to appreciate some larger investigative questions pertinent to some of his other defendants. For example, what happened to the laptops stolen from various offices, including the theft that Brandon Fellows may have witnessed in Jeff Merkley’s office. Did America First engaged in a conspiracy to gets its members, including Christian Secor, to the Capitol (and did a huge foreign windfall that Nick Fuentes got days before the insurrection have anything to do with that). What kind of coordination, if any, led a bunch of Marines to successfully open a second front to the attack by opening the East Doors also implicates Secor’s case. One of the delays in Griffin’s own case probably pertained to whether he was among the Trump speakers, as members of the 3-Percenter conspiracy allegedly were, who tied their public speaking role to the recruitment of violent, armed rioters (given that he has been given a plea offer, I assume the government has answered that in the negative).

It has become increasingly clear that one of the visible ways that DOJ is attempting to answer these and other, even bigger questions, is to collect selected pieces of evidence from identifiable trespassers with their arrest. For example, Anthony Puma likely got arrested when he did because he captured images of the Golf Cart Conspiracy with his GoPro. He has since been charged with obstruction — unsurprisingly, since he spoke in detailed terms about preventing the vote certification in advance. But his prosecution will be an important step in validating and prosecuting the larger conspiracy, one that may implicate the former President’s closest associates.

This is white collar and complex conspiracy investigation floating on top of a riot prosecution, one on which the fate of our democracy rests.

Melody Steele-Smith evaded the surveillance cameras

A report filed yesterday helps to explain the import of all this. Melody Steele-Smith was arrested within weeks of the riot on trespass charges, then indicted on trespass and obstruction charges. She’s of particular interest in the larger investigation because — per photos she posted on Facebook — she was in Nancy Pelosi’s office and might be a witness to things that happened there, including the theft of Pelosi’s laptop.

At a hearing last week, the second attorney who has represented her in this case, Elizabeth Mullin, said she had received no discovery, particularly as compared to other January 6 defendants. So the judge in that case, Randolph Moss, ordered a status report and disclosure of discovery by this Friday.

That status report admits that there hasn’t been much discovery, in particular because, aside from the surveillance photos used in her arrest warrant, the government hasn’t found many images of Steele-Smith in surveillance footage.

The United States files this memorandum for the purpose of describing the status of discovery. As an initial matter, the government has provided preliminary discovery in this case. On or about June 4, 2021, the government provided counsel for defendant preliminary discovery in this matter. This production had been made previously to the defendant’s initial counsel of record. Counsel for defendant received the preliminary production that had been provided to previous counsel. This preliminary production included the FBI 302 of defendant’s sole interview, the recorded interview of defendant which formed the basis of the aforementioned FBI 302, over one thousand pages of content extracted from defendant’s Facebook account, and thirty-nine photographs confiscated from defendant’s telephone.

The government is prepared to produce an additional discovery production no later than August 13, 2021. The production will include additional items that have been obtained by the government from the FBI. These items include, additional FBI investigative reports and the Facebook search warrant dated January 21, 2021. The FBI has provided the government with the full extent of the materials in its possession. While these items are few in number, the government is continuing to review body worn camera footage in an attempt to locate the defendant. Camera footage will be provided if it is located. The government has been diligent in its efforts to obtain all discoverable items in possession of the FBI.

That still leaves a thousand Facebook pages and 39 photos, some of them taken at a key scene in the Capitol a scene that — given the evidence against Steele-Smith and in other cases — is a relative blind spot in the surveillance of the Capitol. The interview described here is not reflected in her arrest warrant, and so may include non-public information used to support the obstruction case.

Beryl Howell might argue this is sufficient evidence to prove the government’s obstruction case. Trevor McFadden might argue that this case can’t wait for more video evidence obtained from future arrestees of what Steele-Smith did while “storm[ing] the castle” (in her own words), including the office of the Speaker of the House. But the theft of the Pelosi laptop — including whether Groypers like Riley Williams were involved — remains unsolved.

If a single terrorist with suspect ties to foreign entities broke into the office of the Speaker of the House and stole one of her laptops, no one would even think twice if DOJ were still investigating seven months later. But here, because the specific means of investigation include prosecuting the 1,000 people who made that break-in possible, there’s a push to curtail the investigation.

I don’t know what the answer is because the Speedy Trial issues are very real, particularly for people who are detained. But I do know it’s very hard for anyone to get their mind around this investigation.

Did Paul Gosar Take Actions on Behalf of Donald Trump that Contributed to Ashli Babbitt’s Death?

In this post, I noted that just nine minutes before accused January 6 defendant Brady Knowlton entered the Capitol at 2:35, Donald Trump called Tommy Tuberville. Later in the day, Rudy Giuliani would ask Tuberville to delay the vote certification by challenging more states. If that’s what Trump asked Tuberville to do on that first call and if Tuberville complied with Trump’s request, he and the rest of his colleagues might still have been in the Senate when Knowlton and others started to swarm in.

Instead, Tuberville told the President he had to go because the Senators were being evacuated, following shortly on the evacuation of Mike Pence just minutes before Trump called.

We only know of Trump’s call to Tuberville because Trump — and later Rudy Giuliani — dialed the wrong number, calling Mike Lee’s phone instead of Tuberville’s.

We don’t know who else Trump was calling at the time, though in recent days Jim Jordan has admitted he spoke to Trump that day, while dodging wildly about when that happened and what Trump said.

What we do know is that someone on the other side of the Capitol was doing exactly what Trump later asked Tuberville to do: Paul Gosar, who coordinated closely on all aspects of the insurrection with Trump, was raising more challenges to the vote.

That’s of particular interest because the NYT, in their superb documentary on the chronology of the day (starting at 25:40), suggests that the chain of events that led to Ashli Babbitt’s death started with Jim McGovern’s decision to get through one more person’s challenge of the vote, Gosar’s.

By 2:30 PM the Senate evacuation is well underway. But, even though a lockdown was called over 15 minutes ago, the House is still in session.

Gosar: I do not accept Arizona’s electors as certified.

Representative Jim McGovern is chairing. He told us he wanted to finish hearing objections to the election results by Paul Gosar. House staff and security gave McGovern the all-clear to continue. It’s a delay that likely cost someone their life.

Suddenly, staff are now pointing at the Chamber’s doors.

Please be advised there are masks under your seats. Please grab a mask and place it in your lap and be prepared to don your mask in the event we have a breach.

Just outside, a mob of a hundred or more is baying to get into them.

Well, we came this far, what do you say?

Drag ’em out.

Tell fucking Pelosi we’re coming for her.

These rioters pay little heed to the thin line of police.

They’re going. I would just stop.

And in moments, are pushing against doors into the House.

Stop the Steal! Stop the Steal!

On the other side, Capitol police erect a barricade and draw their guns. On the floor, lawmakers are evacuating to the rear of the chamber, where in a few minutes a rioter will be shot and killed. Part of the mob inside now peels off in that direction to find a different way in. Ashli Babbitt, an Air Force veteran and a QAnon supporter is among the first to arrive at the rear of the House.

There they are! What the fuck!

They see the lawmakers escaping. That lobby might have been clear had the House been evacuated sooner. But the rioters now become incensed. Zachary Alam, a Trump supporter punches in the glass panels with his bare fists.

Stop the Steal! Open the door. Break it down! Break it down!

Police are stretched extremely thin. Just three officers and a security officer stand guard. None are wearing riot gear and they keep their weapons holstered. When a team of heavily armed police now arrives, the three officers step aside.

Go! Let’s go! Get this thing!

This creates a crucial gap that allows rioters to smash in the glass. [A warning: what happens next is graphic.] It’s 2:44PM and behind the door a police officer draws his handgun.

There’s a gun. There’s a gun! He’s got a gun! He’s got a gun!

Babbitt vaults into the window. And the officer shoots her once. It’s a fatal wound, through the upper chest.

Gosar’s challenge delayed the evacuation of the House, meaning that rioters spied the lawmakers evacuating through the Speaker’s lobby as they arrived. NYT suggests that viewing the lawmakers in such close proximity inflamed the rioters, leading Zach Alam to punch through the door and Babbitt to leap through it in an attempt to chase after them, in turn leading to an officer’s decision to use lethal force to protect fleeing Members of Congress.

One minute after Babbitt was shot, surveillance footage caught Knowlton entering the Senate Chamber at 2:45. Had Trump convinced Tuberville to stay, the same kind of confrontation might have happened in the Senate Chamber, too (and video shows that Mitt Romney, already a target for Trump’s supporters, narrowly avoided running into the mob as well).

If a Tuberville delay might have orchestrated a similar clash on the Senate side, it raises questions whether Trump was involved in the Gosar delay.

As it happens, Gosar is among the most active purveyors of the martyr myth surrounding Ashli Babbitt, including tweeting out this image that seemes almost necrophiliac in composition, with its focus on his crotch and her name.

But the fact that Trump was actively calling Members of Congress well after rioters stormed the building, and the fact that Gosar caused what the NYT deemed the fatal delay on the House side, it’s possible that he and Trump had a bigger role in ensuring that Babbitt jumped through that window to chase Gosar and his colleagues. It’s possible Gosar created that delay because Trump asked him to.

CNN reports that the January 6 commission is weighing whether to obtain White House call logs (Trump made the call to Tuberville from the main White House line).

The select committee investigating the January 6 insurrection is weighing whether to pursue call logs from the Trump White House on the day of the riot, a move that could present a potentially thorny dilemma for President Joe Biden who would ultimately have to determine whether the records should be covered by executive privilege or qualify as essential evidence for the ongoing probe.

The committee has been engaged in ongoing discussions with the Biden administration about its plans for the investigation as it has taken the lead role in examining all things related to January 6 and prepares to issue its first round of subpoenas, two sources familiar with the matter told CNN.
Phone records from former President Donald Trump’s White House will likely not be among the first subpoena targets as a source familiar with the matter told CNN that the committee has not broached the topic during preliminary discussions with the Executive Branch. But the panel is actively considering the possibility of pursuing those records and other relevant documents that could raise additional executive privilege questions, the source added.
Members of the committee, including GOP Rep. Liz Cheney, have made clear investigators must “get to every piece of information that matters” in order to piece together a detailed understanding of what Trump and his closest allies were doing that day.

Liz Cheney may well be thinking of tracking Trump’s calls to Kevin McCarthy. But the import of Gosar’s delay to the shooting of Ashli Babbitt by itself presents a good reason to subpoena those records.

Why Did DOJ Delay Seven Months before Letting Jeffrey Rosen Testify?

On January 22 — after Jeffrey Rosen was no longer Acting Attorney General but before Trump’s second impeachment trial — Katie Benner published a story describing Trump’s efforts to get Jeffrey Bossert Clark to undermine those at DOJ, including Rosen and Acting Deputy Attorney General Richard Donoghue, who refused to endorse Trump’s lies about the election.

As I noted the other day, that story included all the details that have been dribbling out from the House Oversight Committee in recent weeks: Trump’s efforts to get DOJ to intervene in Georgia, Rosen and Donoghue’s refusal, followed by Trump’s effort to put Clark in charge at DOJ on January 3. Benner had all that nailed in January.

The day after Benner’s January 22 story, the holdover members of the Senate Judiciary Committee sent a letter to DOJ citing the story and asking for documents behind it.

On January 22, The New York Times reported astonishing details about an alleged plot between then-President Donald Trump and then-Acting Assistant Attorney General of the Civil Division Jeffrey Bossert Clark to use the Department of Justice to further Trump’s efforts to subvert the results of the 2020 presidential election.[1]  These efforts culminated on January 6, when Trump incited a violent mob that attacked Congress as it counted the electoral votes and prepared to affirm President Biden’s victory.  The information revealed by this story raises deeply troubling questions regarding the Justice Department’s role in Trump’s scheme to overturn the election.

The Senate Judiciary Committee will conduct vigorous oversight of these matters.  As a first step, we seek your immediate assurance that the Department will preserve all relevant materials in its possession, custody, or control.  Please also produce the following materials as soon as possible, but no later than February 8, 2021:

  • All documents and communications, including emails, text messages, and calendar entries, referring or related to the reported December 15 meeting between then-President Trump and then-Acting Attorney General Jeffrey Rosen and reported follow-up calls and meetings between President Trump and Mr. Rosen;
  • All documents and communications, including emails, text messages, and calendar entries, referring or related to reported complaints President Trump made to Justice Department leaders regarding then-U.S. Attorney Byung J. Pak prior to Pak’s resignation;
  • All documents and communications, including emails, text messages, and calendar entries, regarding a reported draft letter that Mr. Clark prepared and requested be sent to Georgia state legislators; and
  • All documents and communications, including emails, text messages, and calendar entries, involving the reported January 3 White House meeting involving Mr. Clark and Mr. Rosen.

That letter set a deadline of February 8, over a month before Merrick Garland was confirmed and over 70 days before Lisa Monaco was confirmed.

In May, House Oversight Chair Carolyn Maloney sent Rosen a request (which hasn’t been made public) for a transcribed interview.

Seemingly in response to that — though the letter cites both the January request and the May one — DOJ (in the guise of Bradley Weinsheimer, who was elevated from NSD to DOJ’s institutional accountability role at Associate Deputy Attorney General by Jeff Sessions, and so was a colleague of those DOJ officials), wrote Rosen and five other former top DOJ officials permitting them to testify about a carefully defined set of events. The testimony is basically limited to, “any efforts by President Trump or any DOJ officials to advance unsubstantiated allegations of voter fraud, challenge the 2020 election results, stop Congress’s count of the Electoral College vote, or overturn President Biden’s certified victory.” It is limited to events that happened after Attorney General Barr resigned on December 14. The letter specifically prohibits discussing any prosecutorial decisions the men made, or discussing investigations that were ongoing when they left.

Discussion of any pending criminal cases and possible charges also could violate court rules and potentially implicate rules of professional conduct governing extra-judicial statements.

But within that scope, the letter permits these former DOJ officials to answer questions that would otherwise be covered by executive privilege.

[T]he Department authorizes you to provide unrestricted testimony to the Committees, irrespective of potential privilege, so long as the testimony is confined to the scope of the interviews as set forth by the Committees and as limited in the penultimate paragraph below.

Of particular note, DOJ asked President Biden — via the White House Counsel — whether he wanted to invoke privilege; he chose not to.

Because of the nature of the privilege, the Department has consulted with the White House Counsel’s Office in considering whether to authorize you to provide information that may implicate the presidential communications privilege. The Counsel’s Office conveyed to the Department that President Biden has decided that it would not be appropriate to assert executive privilege with respect to communications with former President Trump and his advisors and staff on matters related to the scope of the Committees’ proposed interviews, notwithstanding the view of former President Trump’s counsel that executive privilege should be asserted to prevent testimony regarding these communications. See Nixon v. Administrator of General Servs., 433 U.S. 425, 449 (1977) (“[I]t must be presumed that the incumbent President is vitally concerned with and in the best position to assess the present and future needs of the Executive Branch, and to support invocation of the privilege accordingly.” see also id. (explaining that the presidential communications privilege “is not for the benefit of the President as an individual, but for the benefit of the Republic”) (internal citation omitted).

As Benner wrote in a story offering details of Jeffrey Rosen’s testimony, Rosen has been trying to get permission to testify for “much of the year.” As soon as DOJ gave it, he rushed to testify before Trump could intervene.

Mr. Rosen has spent much of the year in discussions with the Justice Department over what information he could provide to investigators, given that decision-making conversations between administration officials are usually kept confidential.

Douglas A. Collins, a lawyer for Mr. Trump, said last week that the former president would not seek to bar former Justice Department officials from speaking with investigators. But Mr. Collins said he might take some undisclosed legal action if congressional investigators sought “privileged information.”

Mr. Rosen quickly scheduled interviews with congressional investigators to get as much of his version of events on the record before any players could ask the courts to block the proceedings, according to two people familiar with those discussions who are not authorized to speak about continuing investigations.

He also reached out directly to Michael E. Horowitz, the Justice Department’s inspector general, and pledged to cooperate with his investigation, according to a person briefed on those talks.

The question is why. After all, these events were knowable to DOJ since they happened, and for the entirety of that time, DOJ has been conducting an investigation into efforts to obstruct the vote count. For some of that period, in fact, Rosen himself was in ultimate charge of the investigation, and he could have ordered or authorized himself to testify.

Benner didn’t specify whether Rosen might have been interviewed by the FBI, though the implication is he has not been asked.

Similarly, DOJ IG has been investigating related issues since then as part of a specific investigation into the BJ Pak firing and a general investigation into January 6. While Michael Horowitz could not subpoena Rosen, he could simply have asked Rosen to provide testimony. But Benner is quite clear that Rosen has not yet testified even to Horowitz.

During that period, too, there was an instance where DOJ IG asked someone for an interview, but the person quit to avoid the testimony.

During the course of an ongoing administrative misconduct investigation, the Department of Justice (DOJ) Office of the Inspector General (OIG) informed a then senior DOJ official, who was a non-career member of the Senior Executive Service, that the senior DOJ official was a subject in the investigation and that the OIG sought to interview the senior DOJ official in connection with the investigation. After several unsuccessful attempts to schedule a voluntary interview with the senior DOJ official, the OIG instructed the senior DOJ official to appear for a compelled interview and informed the senior DOJ official that neither the answers the senior DOJ official provided nor any evidence gained by reason of those answers could be used against the senior DOJ official in a criminal proceeding. The senior DOJ official failed to appear for the compelled interview and resigned from Department employment shortly thereafter.

The OIG concluded that the senior DOJ official violated both federal regulations and DOJ policy by failing to appear for a compelled OIG interview while still a DOJ employee. The OIG offered the senior DOJ official the opportunity to cure that violation by participating in a voluntary interview after leaving the Department, but the senior DOJ official, through counsel, declined to do so. The OIG has the authority to compel testimony from current Department employees upon informing them that their statements will not be used to incriminate them in a criminal proceeding. The OIG does not have the authority to compel or subpoena testimony from former Department employees, including those who retire or resign during the course of an OIG investigation.

Those events were reported on April 19.

There are two more dates of interest. First, DOJ only released its new contact policy — under which the request for a privilege determination may have been passed — on July 21. I’m curious whether the request for a  waiver of executive privilege waiver came after that. Executive privilege considerations were a key limitation on the Mueller investigation overseen in its final days partly by Rosen himself.

At least as interesting, however, is that DOJ sent the letter just one day before DOJ submitted a court filing in the Eric Swalwell lawsuit — speaking of members of Congress but using more generalized language — arguing that no federal officials can campaign in their official capacity and further noting that attacking one’s employer is not within the scope of someone’s job description.

The record indicates that the January 6 rally was an electioneering or campaign activity that Brooks would ordinarily be presumed to have undertaken in an unofficial capacity. Activities specifically directed toward the success of a candidate for a partisan political office in a campaign context—electioneering or campaign activities—are not within the scope of the office or employment of a Member of the House of Representatives. Like other elected officials, Members run for reelection themselves and routinely campaign for other political candidates. But they do so in their private, rather than official, capacities.

This understanding that the scope of federal office excludes campaign activity is broadly reflected in numerous authorities. This Court, for example, emphasized “the basic principle that government funds should not be spent to help incumbents gain reelection” in holding that House or Senate mailings aimed at that purpose are “unofficial communication[s].” Common Cause v. Bolger, 574 F. Supp. 672, 683 (D.D.C. 1982) (upholding statute that provided franking privileges for official communications but not unofficial communications).

[snip]

Second, the Complaint alleges that Brooks engaged in a conspiracy and incited the attack on the Capitol on January 6. That alleged conduct plainly would not qualify as within the scope of employment for an officer or employee of the United States, because attacking one’s employer is different in kind from any authorized conduct and not “actuated . . . by a purpose to serve” the employer. Id. § 228(1)(c). Brooks does not argue otherwise. Instead, he denies the Complaint’s allegations of conspiracy and incitement. The Department does not address that issue here because the campaign-related nature of the rally independently warrants denial of certification, and because the Department is engaged in ongoing investigations into the events of January 6 more generally. But if the Court were to reject our argument that the campaign nature of the January 6 rally resolves the certification question, the Court should not certify that Brooks was acting within the scope of his office or employment unless it concludes that Brooks did not engage in the sort of conduct alleged in the Complaint. [my emphasis]

It’s possible that this seven month delay is inexcusable.

It’s also possible that it reflects the time DOJ took to come to other determinations about whether privileged information could be used to investigate a former President and if so how to obtain it.

Update: On both June 24,

I assure the American people that the Department of Justice will continue to follow the facts in this case and charge what the evidence supports to hold all January 6th perpetrators accountable.

And July 6,

The Attorney General and Deputy Attorney General encouraged the team to continue to follow the facts in this case and charge what the evidence supports to hold all January 6th perpetrators accountable.

Garland made statements reiterating his commitment to charge all perpetrators against whom the evidence supported charges.

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