Bill Barr’s Entire DOJ Chased Trump Conspiracy Theories and Plotted Inappropriately

When Bill Barr resigned rather than do the President’s bidding to challenge elections that were perfectly fair, he could have revealed that fact publicly, okayed the indictment of one of the chief purveyors of election conspiracies, Rudy Giuliani, and admitted that the entire basis for undermining the prosecution of Mike Flynn — who had already called for martial law and an election do-over — was based on conspiracy theories spun by the same woman spinning the worst election hoaxes, Sidney Powell.

He didn’t do that.

Instead, he announced his resignation with a page of abject sycophancy that repeated the conspiracy theory that got Barr hired: that the Russian investigation was, “an effort to cripple, if not oust, your Administration with frenzied and baseless accusations of collusion with Russia.”

Even before that, though, Barr launched his letter with an ambiguous statement about the election, one that might be read either as endorsing Trump’s conspiracy theories or debunking them:

I appreciate the opportunity to update you this afternoon on the Department’s review of voter fraud allegations in the 2020 election and how these allegations will continue to be pursued. At a time when the country is so deeply divided, it is incumbent on all levels of government, and all agencies acting within their purview, to do all we can to assure the integrity of elections and promote public confidence in their outcome.

At a moment where he had maximal power to halt Trump’s efforts to overturn an election, then, Barr instead just cowered, resting on the one public statement that there was not sufficient fraud to overturn the election that had gotten him ousted.

Which is to say that to the end, Barr never foreswore the conspiracy theories he adopted in service to Donald Trump.

Now, however, others who also facilitated Donald Trump’s conspiracy theories for years until they, in the final days, didn’t, are seeding stories to suggest that Jeffrey Bossert Clark was in any way unique for doing so.

The story starts with a tale that suggests the top leaders in a DOJ that had broken all norms in service of Donald Trump weren’t, themselves, in the “Trumpist faction” of the Republican Party.

It was New Year’s Eve, but the Justice Department’s top leaders had little to celebrate as they admonished Jeffrey Clark, the acting head of the civil division, for repeatedly pushing them to help President Donald J. Trump undo his electoral loss.

Huddled in the department’s headquarters, they rebuked him for secretly meeting with Mr. Trump, even as the department had rebuffed the president’s outlandish requests for court filings and special counsels, according to six people with knowledge of the meeting. No official would host a news conference to say that federal fraud investigations cast the results in doubt, they told him. No one would send a letter making such claims to Georgia lawmakers.

When the meeting ended not long before midnight, Acting Attorney General Jeffrey A. Rosen thought the matter had been settled, never suspecting that his subordinate would secretly discuss the plan for the letter with Mr. Trump, and very nearly take Mr. Rosen’s job, as part of a plot with the president to wield the department’s power to try to alter the Georgia election outcome.

It was clear that night, though, that Mr. Clark — with his willingness to entertain conspiracy theories about voting booth hacks and election fraud — was not the establishment lawyer they thought him to be. Some senior department leaders had considered him quiet, hard-working and detail-oriented. Others said they knew nothing about him, so low was his profile. He struck neither his fans in the department nor his detractors as being part of the Trumpist faction of the party, according to interviews.

The department’s senior leaders were shocked when Mr. Clark’s machinations came to light. They have spent recent weeks debating how he came to betray Mr. Rosen, his biggest champion at the department, and what blend of ambition and conviction led him to reject the results of the election and embrace Mr. Trump’s claims, despite all evidence to the contrary, including inside the department itself. [my emphasis]

You’ll note that the NYT didn’t explain why it granted six surely very powerful people, mostly lawyers, anonymity to spin this tale?

Buried much deeper in the story, however, after retelling all the ways Clark broke normal procedure while running the Environmental Division, the NYT then explains how he came to be Acting head of the Civil Department and in that role took a number of inexcusable steps that neither Bill Barr nor Jeffrey Rosen objected to (indeed, those may have been the steps that drove Jody Hunt away and won Clark the job).

While Mr. Clark oversaw environmental cases, sometimes working late into the night and personally reviewing briefs, the department’s civil division was in turmoil. Its leader, Jody Hunt, sometimes clashed with the White House Counsel’s Office and, later on, with Attorney General William P. Barr, over how best to defend the administration.

Mr. Hunt resigned with no warning in July, leaving his deputy to run the division while Mr. Barr and Mr. Rosen searched for an acting leader among the department’s thinned-out ranks. Mr. Clark wanted the job, which was a considerable step up in stature, and Mr. Rosen supported the idea even though he was already a division head, according to three people with knowledge of the situation.

After he took the helm of the civil division in September, colleagues began seeing flashes of unusual behavior. Mr. Clark’s name appeared on eyebrow-raising briefs, including what would turn out to be an unsuccessful effort to inject the government into a defamation lawsuit against Mr. Trump by a woman who has said he raped her more than two decades ago. He also signed onto an attempt to use the Justice Department to sue a former friend of the first lady at the time, Melania Trump, for writing a tell-all memoir.

Remember: the currently operative story is that Clark didn’t know Trump until Congressman Scott Perry introduced them, presumably after the election.

It was Mr. Perry, a member of the hard-line Freedom Caucus, who first made Mr. Trump aware that a relatively obscure Justice Department official, Jeffrey Clark, the acting chief of the civil division, was sympathetic to Mr. Trump’s view that the election had been stolen, according to former administration officials who spoke with Mr. Clark and Mr. Trump.

Mr. Perry introduced the president to Mr. Clark, whose openness to conspiracy theories about election fraud presented Mr. Trump with a welcome change from the acting attorney general, Jeffrey A. Rosen, who stood by the results of the election and had repeatedly resisted the president’s efforts to undo them.

He didn’t get the Civil job because Trump picked him or because he promised to turn DOJ into Trump’s own personal law firm. Someone else must have picked him. That means Clark’s other decisions — one of which he took the day after he was installed and which were “Trumpist” by any definition of the term — had the full approval of the people now suggesting he went rogue later in the year. Indeed, those interventions may have been the entire reason he got picked to run the Civil Division.

Sure, Jeffrey Bossert Clark should be shunned in the respectable legal profession for helping Trump attempt a coup. But so should the men who willfully let DOJ champion Trump’s conspiracy theories for the two years before that.

Prosecuting the Trump Coup Attempt Compared to the J20 Prosecution

Yesterday, WaPo published a story describing that there’s a debate over whether to charge all the people can identifiably entered the Capitol during the January 6 coup attempt.

Federal law enforcement officials are privately debating whether they should decline to charge some of the individuals who stormed the U.S. Capitol this month — a politically loaded proposition but one alert to the practical concern that hundreds of such cases could swamp the local courthouse.

The internal discussions are in their early stages, and no decisions have been reached about whether to forgo charging some of those who illegally entered the Capitol on Jan. 6, according to multiple people familiar with the discussions.

Justice Department officials have promised a relentless effort to identify and arrest those who stormed the Capitol that day, but internally there is robust back-and-forth about whether charging them all is the best course of action. That debate comes at a time when officials are keenly sensitive that the credibility of the Justice Department and the FBI are at stake in such decisions, given the apparent security and intelligence failures that preceded the riot, these people said, speaking on the condition of anonymity to discuss legal deliberations.

Federal officials estimate that roughly 800 people surged into the building, though they caution that such numbers are imprecise, and the real figure could be 100 people or more in either direction.

Among those roughly 800 people, FBI agents and prosecutors have so far seen a broad mix of behavior — from people dressed for military battle, moving in formation, to wanton vandalism, to simply going with the crowd into the building.

Due to the wide variety of behavior, some federal officials have argued internally that those people who are known only to have committed unlawful entry — and were not engaged in violent, threatening or destructive behavior — should not be charged, according to people familiar with the discussions.

The story explains some of the concerns: If all the evidence that they have shows some sympathetic person entering the Capitol non-violently and then leaving, they might lose. These are [largely white] people with no arrest records. Lots of defendants are likely to invoke Trump to justify their actions. Prosecuting everyone will overwhelm the courts.

Nevertheless, these people said, some in federal law enforcement are concerned that charging people solely with unlawful entry, when they are not known to have committed any other bad acts, could lead to losses if they go to trial.

“If an old man says all he did was walk in and no one tried to stop him, and he walked out and no one tried to stop him, and that’s all we know about what he did, that’s a case we may not win,” one official said.

Another official noted most of those arrested so far have no criminal records.

Meanwhile, defense lawyers for some of those charged are contemplating something akin to a “Trump defense” — that the president or other authority figures gave them permission or invited them to commit an otherwise illegal act.

“If you think of yourself as a soldier doing the bidding of the commander in chief, you don’t try to hide your actions. You assume you will be held up as a hero by the nation,” criminal defense lawyers Teri Kanefield and Mark Reichel wrote last week.

Such a defense might not forestall charges but could be effective at trial or sentencing.

[snip]

There is also a question over whether charging all of the rioters could swamp the federal court system. In 2019, D.C. federal courts recorded only about 430 criminal cases, and fewer than 300 last year, when the legal system slowed significantly due to the pandemic. Many of those cases, however, had multiple defendants.

I’m very sympathetic with the last issue: while I’d love to use Trump’s crimes as an excuse to expand the number of DC District Judges, there will always be a bottleneck to present anything to a grand jury, because of COVID. I’m unworried that a bunch of people will get a misdemeanor record for participating in a coup attempt.

I think the expressed worries about Trump suggest that someone at DOJ or FBI doesn’t yet realize that Trump must be a part of this, even to hold the more dangerous insurrectionists to account. And if I had to choose whether DC’s prosecutors focus on making that case — that Trump’s efforts to undermine legitimate election results in multiple states and Rudy’s coordination with members of Congress tie directly to the mob they used to delay the certification of the vote — or charging 400 of 800 people with misdemeanors, I say focus on Trump and his co-conspirators.

I think DOJ is right that they will lose some of these cases (all the more so if, as the story suggests might be one way for DOJ to deal with the surge, the trials were moved out of DC). It turns out white supremacists sometimes get a more sympathetic take from jurors than black people do.

That said, I want to consider that concern in light of a comparison someone made: the J20 protestors arrested on the day of former President Trump’s inauguration. While a handful of them pled guilty early, many of the other cases were ultimately thrown out.

Even ignoring the context of Trump’s attempt to use the mob in an effort to steal the election, two things distinguish the two events.

First, as one of the people arrested in 2017 described last week, cops immediately arrested hundreds of people at the Trump protests, both those who had committed vandalism and those who did not.

On Jan. 20, 2017, around the time Trump was sworn in, D.C. police cornered a couple hundred people — largely protesters but also bystanders, journalists and legal observers — onto a street corner far from the White House or the Capitol grounds. The justification for the mass arrests was that a handful of protesters in the crowd had destroyed the windows of several businesses, including a Starbucks and Bank of America branch, and damaged private vehicles parked on the street. I was covering the protest as a freelance reporter and, after catching an eyeful of pepper spray, I got caught up in the mass arrest while trying to leave. We spent the night in jail; police confiscated our phones.

At first, I figured we’d all be charged with contestable misdemeanors. Instead, the U.S. attorney’s office conjured up a radical conspiracy theory that rested on defining the protest march as a black bloc riot in which every alleged participant was guilty for all property damage, ultimately charging more than 200 people. Our indictments referenced protest chants captured on video as evidence. Although my actions, as alleged in the indictment against me, consisted of walking and wearing dark clothing, I was charged with more than half a dozen felony riot and destruction charges. It’s hard to convey the terror I felt, especially as Trump loyalists cheered on my prosecution because I was a journalist, gleefully using racial slurs.

Almost no one was arrested at the Capitol, meaning everyone is having to be identified after the fact, largely from social media and videos of the event. It appears that DOJ is already conducting a kind of triage process, focusing on those who were obviously violent or ties to a more organized group. So the arrests are already selecting for prosecutable behavior.

Also, by comparison with the Trump protestors who were arrested on a public street, merely entering into the Capitol building in an attempt to stop the vote count amounts to two crimes, with which most current defendants are being charged:

18 U.S.C. § 1752(a), which makes it a crime to (1) knowingly enter or remain in any restricted building or grounds without lawful authority to do; (2) knowingly, and with intent to impede or disrupt the orderly conduct of Government business or official functions, engage in disorderly or disruptive conduct in, or within such proximity to, any restricted building or grounds when, or so that, such conduct, in fact, impedes or disrupts the orderly conduct of Government business or official functions; (3) knowingly, and with the intent to impede or disrupt the orderly conduct of Government business or official functions, obstruct or impede ingress or egress to or from any restricted building or grounds; or (4) knowingly engage in any act of physical violence against any person or property in any restricted building or grounds; or attempts or conspires to do so. For purposes of Section 1752 of Title 18, a restricted building includes a posted, cordoned off, or otherwise restricted area of a building or grounds where the President or other person protected by the Secret Service is or will be temporarily visiting; or any building or grounds so restricted in conjunction with an event designated as a special event of national significance; and

40 U.S.C. § 5104(e)(2)(D), which makes it a crime for an individual or group of individuals to willfully and knowingly (A) enter or remain on the floor of either House of Congress or in any cloakroom or lobby adjacent to that floor, in the Rayburn Room of the House of Representatives, or in the Marble Room of the Senate, unless authorized to do so pursuant to rules adopted, or an authorization given, by that House; (B) enter or remain in the gallery of either House of Congress in violation of rules governing admission to the gallery adopted by that House or pursuant to an authorization given by that House; (C) with the intent to disrupt the orderly conduct of official business, enter or remain in a room in any of the Capitol Buildings set aside or designated for the use of— (i) either House of Congress or a Member, committee, officer, or employee of Congress, or either House of Congress; or (ii) the Library of Congress; (D) utter loud, threatening, or abusive language, or engage in disorderly or disruptive conduct, at any place in the Grounds or in any of the Capitol Buildings with the intent to impede, disrupt, or disturb the orderly conduct of a session of Congress or either House of Congress, or the orderly conduct in that building of a hearing before, or any deliberations of, a committee of Congress or either House of Congress; (E) obstruct, or impede passage through or within, the Grounds or any of the Capitol Buildings; (F) engage in an act of physical violence in the Grounds or any of the Capitol Buildings; or (G) parade, demonstrate, or picket in any of the Capitol Buildings.

The former, unless done with a weapon, is just a misdemeanor, what most of the 400 people who might not otherwise be charged would be charged with. But as noted, DOJ (probably correctly) believes that some people will be able to argue they thought they were permitted in, especially if they claim to have operated on Trump’s orders.

There are two other lessons in the J20 case, though, both of which offer important lessons here.

First, in an attempt to claim that the protest was planned to be violent, DOJ relied on a video from Project Veritas which was — unsurprisingly — edited to be misleading. But they withheld the most exculpatory parts.

While the government used some recordings from the right-wing group — which has frequently been found to selectively edit its videos — in Inauguration Day cases that went to trial, a judge later found that prosecutors were wrong not to disclose an additional cache of videos and audio recordings in their possession. The judge also ruled that prosecutors violated evidence disclosure rules in not revealing video edits that the government made.

[snip]

Defense lawyers also complained that the government originally didn’t disclose Project Veritas as the source of the recordings, and that the defense lawyers had to piece together the connection through their own research. Speaking at Friday’s hearing, Elizabeth Lagesse, one of the defendants whose case was dropped, questioned whether the secrecy surrounding the videos was the result of an arrangement between the government and Project Veritas.

The judge then asked Goodhand if there was any agreement to keep Project Veritas’s identity secret. Goodhand said he didn’t know. Morin ordered him to file a supplement to the government’s court papers with an answer.

The government will also have to rely on unofficial videos to prosecute the insurrectionists. While there’s little reason to believe they’re intentionally edited (in many cases they’re not edited at all), there will be a provenance issue.

More importantly, DOJ tried, but failed, to get an expansive warrant for the website of the organization that planned the protest, partly an effort to get the IP address of everyone who accessed the site.

DOJ initially demanded that DreamHost turn over nearly 1.3 IP addresses on visitors to the site. Millions of visitors—activists, reporters, or anyone who just wanted to check out the site—would have records of their visits turned over to the government. The warrant also sought production of all emails associated with the account and unpublished content, like draft blog posts and photos.

The new warrant parameters exclude most visitor logs from the demand, set a temporal limit for records from July 1, 2016 to January 20, 2017, and also withdraw the demand for unpublished content, like draft blog posts and photos. This was a sensible response on DOJ’s part—both legally and politically.

But the new warrant is not without its flaws. First, it’s not clear from either the warrant itself or the facts of the case whether DOJ is ordering DreamHost to turn over information on one account or multiple accounts. At a minimum, DOJ should be required to specify which accounts are subject to the order. More fundamentally, DOJ is still investigating a website that was dedicated to organizing and planning political dissent and protest. That is activity at the heart of the First Amendment’s protection. If, as DOJ claims, it has no interest in encroaching on protected political activity and organizing, then it should allow a third-party—like a judge, a special master, or a taint team—to review the information produced by DreamHost before it is turned over to the government. Anything less threatens to cast a further shadow on the legitimacy of this investigation.

Again, I highly doubt DOJ would go this aggressively after the groups as groups. Indeed, at least from public reports, DOJ has obtained very little legal process yet, and what they’ve gotten has been targeted at individuals already arrested. (Though there are reports that they’re getting location data from the cells in and around the Capitol.)

Because of the difference I’ve already laid out — that violent entry into the Capitol is a crime — DOJ won’t be forced to try to tie all the rioters together in one intent (though, again, Trump offers them that and they should use it). So long as they can show the violence and illegal entry should have been obvious, they won’t need to prove that everyone came in with the intent to cause damage.

Still, this all comes back to the context — a context that report after report seems to suggest DOJ is not vigorously pursuing yet.

To the extent a mob descended on the Capitol to prevent the certification of the vote — and defendant after defendant posted evidence to their social media showing that’s what they understood they were doing — then you have a conspiracy.

Ironically, then, Trump ended his presidency providing the legal case his DOJ tried to trump up on its first day.

Zip-Tie Guy’s Release on Bail Is Why Donald Trump Must Be Prosecuted

Yesterday, a magistrate judge in Nashville, Chip Frensley, gave Eric Munchel bail. He’s the guy who has become known as “Zip-Tie Guy” because of a picture of him taken in the Senate during the January 6 coup attempt, showing him dressed in tactical gear and holding zip ties.

The government will appeal the decision to DC Chief District Judge Judge Beryl Howell over the weekend, and thus far she has granted such requests from the government, so it’s certainly possible he will ultimately be held.

The bail hearing demonstrates one of the problems with the government’s investigation and prosecution going forward, one which demonstrates the necessity of prosecuting former President Donald Trump (see also this live tweet of the hearing and Politico’s account).

Munchel got charged, along with his mom, Lisa Marie Eisenhart, with the two trespassing charges used for most defendants, conspiracy among themselves, along with obstructing law enforcement during civil disorder.

The filing supporting detention described that Munchel must be found guilty of attempting to impede law enforcement during civil disorder.

To prove a violation of 18 U.S.C. § 231(a)(3), the government must show (1) that a civil disorder existed at the time of any alleged violation; (2) that such civil disorder was resulting in interference with a federally protected function; (3) that one or more law enforcement officers were lawfully engaged in the lawful performance of their official duties incident to and during the commission of such civil disorder; (4) that the defendant attempted to commit an act for the intended purpose of obstructing, impeding, or interfering, either by himself or with someone else, in a violent manner with such law enforcement officer or officers; and (5) that such attempt to act was done willfully and knowingly. United States v. Casper, 541 F.2d 1275, 1276 (8th Cir. 1976).

The evidence doesn’t show Munchel doing that — though shows his mom yelling at the cops. Indeed, the judge in the hearing described video showing him being deferential to cops inside the Capitol. The fact he grabbed the zip ties and said he wanted to seize the Senate gavel suggests he targeted Congress, not the cops.

What the evidence does show is Munchel is a gun nut who wanted to terrorize lawmakers. His mom spoke more explicitly of violent revolution.

“It was a kind of flexing of muscles,” said Munchel, who wore a bulletproof vest and complained that police confiscated his Taser during the riot. “The intentions of going in were not to fight the police. The point of getting inside the building is to show them that we can, and we will.”

Preparing for their 10-hour drive home, the 30-year-old clamoured for greater organisation in the next steps to fight against Biden’s America. He worried that many pro-Trump warriors were individualists and lamented that potential leaders in the Make America Great Again (Maga) movement faced difficulty in rallying troops due to banishment from mainstream social media sites. “Our biggest struggle is getting together, knowing where to go, what to do and who to go to,” said Munchel despondently.

His mother agreed: “The left has everything: the media, organisations, the government. We have to organise if we’re going to fight back and be heard.” Eisenhart, a nurse, added that a violent revolution has long been on the cards thanks to last year’s racial justice protests, anti-police riots and “unnecessary” coronavirus lockdowns.

“This country was founded on revolution. If they’re going to take every legitimate means from us, and we can’t even express ourselves on the internet, we won’t even be able to speak freely, what is America for?” said a teary-eyed Eisenhart, biting into a hotdog. “I’d rather die as a 57-year-old woman than live under oppression. I’d rather die and would rather fight.”

The most compelling piece of evidence that Munchel could have coordinated with a more organized plot involves an exchange he had with the Oath Keepers as he headed into the building.

As MUNCHEL and Eisenhart make their way to the Capitol, they encounter several members of the “Oathkeepers,” a militia group that is distrustful of government authority. One of the Oathkeepers says, “There’s 65 more of us coming.” MUNCHEL, when he recognizes them, says in affirmation, “Oathkeepers,” and bumps fists with one of the men.

But that does’t show pre-planning nor does it tie his possession of the zip ties to any plan the Oath Keepers had.

The government clearly either fears that Munchel will engage in violence or it wants to make sure it keeps its showy zip-tie guy on ice to include kidnapping among the parts of the plot they’ll eventually lay out. But the judge is right that, thus far, the government hasn’t shown evidence that he coordinated with anyone except his mom.

Silent in all this (because, unlike the other kitted-out guy in the Senate that day, Munchel was not shown to have told a reporter that he responded to the call of the then-President to come to DC to engage in that show of force) is the framework of Trump’s calls to overturn an election. The evidence even suggests that Eisenhart claims to have believed Trump’s Big Lie of a stolen election (and it may well be true that she does believe it). But that’s the single factor that makes Zip-Tie Guy’s actions, with his mom, dangerous. He wanted to scare lawmakers, and he wanted to do it in the context of a plea to illegally retain power. A plea from Donald Trump.

Until such time as prosecutors are ready to argue that this show of terrorism was intended to support false claims of election theft mobilized in an attempt to overthrow the Constitutional government of the United Staes, judges are going to find that guys like Munchel owned their arsenals legally and — while violating specific laws protecting the Capitol and the counting of the votes — do not pose a grave threat to our country.

I’m not saying I believe that. I’m not even sure Frensley does.

But absent closer ties to the Oath Keepers (who did clearly pre-plan), the thing that makes the raid on the Capitol especially dangerous, the thing that makes Munchel’s grab for the gavel and the zip-ties criminal, is Trump’s illegal plan. And so, until prosecutors start naming Trump as a co-conspirator, start naming the Big Lie of a stolen election as the motivating cause of the violence, guys like Munchel are going to continue to get bail.

Update: Mirriam Seddiq did a video talking about how conspiracy works in US law, as applied to Trump’s incitement of an insurrection that lays out how this should be presented to judges.

Update: Over the weekend, Beryl Howell granted the government’s emergency motion for detention. The motion included an additional allegation against Munchel, that he had assaulted Bloomberg journalist William Turton.

On the evening of January 6, 2021, after the insurrection, an individual posted a video of the Grand Hyatt hotel lobby on Twitter. The person then posted a message that read: “After I took this video, several Trump supporters harassed me and tried to follow me to my room. One accused me of being ‘antifa.’3 Hotel security intervened and moved me to new room. What a weird day.” See https://twitter.com/WilliamTurton/status/1346980284252745729 (Last accessed on January 23, 2021). The person added: “The Trump supporters demanded that I delete the video. One woman flashed her taser at me, and threatened to mace me.” See https://twitter.com/WilliamTurton/status/1347024856416714752 (last viewed January 23, 2021). Two days later, on January 8, based on another video from the Grand Hyatt posted to social media, the person identified the defendant as “one of the people in the hotel lobby who demanded I delete the video, put his hands on me, and screamed at me . . . .” See https://twitter.com/WilliamTurton/status/1347699125408641024 (last viewed January 23, 2021); https://twitter.com/WilliamTurton/status/1347699345345417217 (last viewed January 23, 2021). Evidence of this encounter was not presented at the preliminary and detention hearing in the Middle District of Tennessee.

It also more aggressively described what Munchel had done as insurrection.

Finally, it is difficult to fathom a more serious danger to the community—to the District of Columbia, to the country, or to the fabric of American Democracy—than the one posed by armed insurrectionists, including the defendant, who joined in the occupation of the United States Capitol. Every person who was present without authority in the Capitol on January 6 contributed to the chaos of that day and the danger posed to law enforcement, the Vice President, Members of Congress, and the peaceful transfer of power. The defendant’s specific conduct aggravated the chaos and danger. It was designed to intimidate Members of Congress and instigate fear across the country. Make no mistake: the fear the defendant helped spread on January 6 persists—the imprint on this country’s history of a militia clad insurrectionist standing over an occupied Senate chamber is indelible. Only detention mitigates such grave danger.

It makes it clear Munchel may be facing additional charges.

The evidence amassed so far subjects the defendant to felonies beyond that with which he has been charged so far, including obstructing Congress, interstate travel in furtherance of rioting activity, sedition, and other offenses. These offenses carry substantial penalties, which incentivizes flight and evading law enforcement—a thought that the defendant already appears to have contemplated by virtue of avoiding his residence and workplace, terminating his Facebook account, and leaving his cell phone with an associate.

The DOD Flunkies’ Convenient Lapse of Executive Privilege

The first thing you should take away from this long Vanity Fair profile of the Trump loyalists who led DOD during the Transition period is that Kash Patel has a very selective approach to Executive Privilege. Deep in the story, when caught in a lie about a plot to have him replace CIA Director Gina Haspel, Patel invokes Executive Privilege to refuse to answer.

I asked Patel about an Axios story that broke just before we sat down to talk. It asserted that CIA director Gina Haspel threatened to resign after learning that Trump planned to install Patel as her deputy. “I’m not going to comment on what the president wanted to do or didn’t want to do, but there’s no conversations of that now or this week or this year,” he replied. But he seemed to be playing coy. The CIA gambit took place last year. In fact, when I had spoken with Cohen about the matter, he had told me, “The idea was to put Kash in as the deputy, which doesn’t require Senate approval, and then to fire Gina the next day, leaving Kash in charge…. Robert O’Brien, [Trump’s national security adviser], is the one who deep-sixed it.” When I pressed Patel further about these machinations, which had occurred in December, I saw him turn lawyerly: “That stuff is between me and the boss. That’s the only thing I don’t comment on. Ever. It’s executive privilege.”

But in the first lines of the profile, both he and former Acting Secretary of Defense Christopher Miller happily offer up a tale of how Trump not only claimed to know what an appropriate deployment of National Guard troops would be in preparation for January 6, but ordered DOD to have them deployed.

On the evening of January 5—the night before a white supremacist mob stormed Capitol Hill in a siege that would leave five dead—the acting secretary of defense, Christopher Miller, was at the White House with his chief of staff, Kash Patel. They were meeting with President Trump on “an Iran issue,” Miller told me. But then the conversation switched gears. The president, Miller recalled, asked how many troops the Pentagon planned to turn out the following day. “We’re like, ‘We’re going to provide any National Guard support that the District requests,’” Miller responded. “And [Trump] goes, ‘You’re going to need 10,000 people.’ No, I’m not talking bullshit. He said that. And we’re like, ‘Maybe. But you know, someone’s going to have to ask for it.’” At that point Miller remembered the president telling him, “‘You do what you need to do. You do what you need to do.’ He said, ‘You’re going to need 10,000.’ That’s what he said. Swear to God.”

I could not recall the last time a contingent that large had been called up to supplement law enforcement at all, much less at a demonstration—the Women’s March and the Million Man March sprang to mind—and so I asked the acting SECDEF why Trump threw out such a big number. “The president’s sometimes hyperbolic, as you’ve noticed. There were gonna be a million people in the street, I think was his expectation.” Miller maintained that initial reports on the anticipated crowd size were all over the map—anywhere from 5,000 to 40,000. “Park Police—everybody’s so hesitant to give numbers. So I think that was what was driving the president.”

There’s a lot of reason to believe this is bullshit. Trump wouldn’t ask for the Guard if he wanted a show of force, he’d ask for a helicopter flyover or something else inappropriate.  Trump isn’t a detail guy. Miller and Patel offered up a key (and dubious) excuse used elsewhere — that they hadn’t been told the Park Service had expanded the Trump rally to 30,000 attendees.

Most importantly, Patel demonstrated that he believes his actual conversations with Trump should be protected by Executive Privilege. Certainly, he would refuse to say anything bad about Trump.

Ezra Cohen[-Watnick], by contrast, isn’t prompted to. While he is permitted to claim that Trump threw everyone — the entire country — under the bus, he’s not asked about his mentor Mike Flynn’s role in the conspiracy.

Ezra Cohen, another of Miller’s top confidants, believes that his colleagues’ words and deeds may be well and good, but are beside the point: “The president threw us under the bus. And when I say ‘us,’ I don’t mean only us political appointees or only us Republicans. He threw America under the bus. He caused a lot of damage to the fabric of this country. Did he go and storm the Capitol himself? No. But he, I believe, had an opportunity to tamp things down and he chose not to. And that’s really the fatal flaw. I mean, he’s in charge. And when you’re in charge, you’re responsible for what goes wrong.”

[snip]

His promotion was fodder for trolls of every stripe. “To the left I became this horrible person that enabled the president, attacking [Obama officials] and all this other stuff like that,” Cohen contended as we sat in his kitchen and later drove through a Chick-fil-A before tooling around northern Virginia. “And then to the crazy people on the right—that are dangerous people that did the horrible, antidemocratic behavior with the Capitol—these nutjobs are saying that I am QAnon.”

The silence about Flynn’s call for martial law is all the more telling given Cohen’s nod to the way QAnon has worked him into their conspiracies. Flynn played a key role in mobilizing QAnon to serve as Trump’s army.

Also missing from this profile? Any mention of Flynn’s brother, Charles, who participated in a call with local DC officials calling for more help but whose role DOD hid until after Biden was inaugurated.

There are other silences as well, perhaps most notably Miller’s stubborn effort to burrow in a fourth ally, Mike Ellis, at NSA in the last hours of the Trump Administration.

So even before you get into the details, this profile should be regarded as an effort by three very slick dudes to recast their role as Trump flunkies in the wake of an inexcusable event.

With all that said, it appears to differ in key ways from the timeline DOD released days after the coup attempt. The Vanity Fair narrative makes several claims that are probably true: That Miller came to work expecting he might not get home that night (though didn’t stay in DC even as the National Guard did in advance of the inauguratoin), and that DOD was chastened given the gross abuse in response to June protests.

But it also suggests Muriel Bowser called for help 48 minutes after DOD’s timeline shows she did.

On the morning of January 6, as Miller recounted, he was hopeful that the day would prove uneventful. But decades in special operations and intelligence had honed his senses. “It was the first day I brought an overnight bag to work. My wife was like, ‘What are you doing there?’ I’m like, ‘I don’t know when I’m going to be home.’” To hear Patel tell it, they were on autopilot for most of the day: “We had talked to [the president] in person the day before, on the phone the day before, and two days before that. We were given clear instructions. We had all our authorizations. We didn’t need to talk to the president. I was talking to [Trump’s chief of staff, Mark] Meadows, nonstop that day.”

The security posture and response on January 6 did not occur in a vacuum. June 1, 2020, had been a perilous precedent. On that day federal police had expelled peaceful protesters from Lafayette Square to facilitate the president’s saunter over to St. John’s Church for a publicity stunt. But the brute force displayed to clear out the area proved a national embarrassment and allegedly influenced Washington mayor Muriel Bowser’s view, come January, about how the capital should be policed—and by whom. On the day before all hell broke loose on the Hill, she made it clear the D.C. police (MPD) would be running the show on the 6th, though 340 unarmed National Guard troops had been requested to help with traffic: “The District of Columbia is not requesting other federal law enforcement personnel and discourages any additional deployment without immediate notification to, and consultation with, MPD.”

Miller told me that when Trump made him head of the Pentagon, in November, “the bar was pretty low.” He had three goals. “No military coup, no major war, and no troops in the street,” before observing dryly, “The ‘no troops in the street’ thing changed dramatically about 14:30…. So that one’s off [the list].”

The day began with a lull. “We had meetings upon meetings. We were monitoring it. And we’re just like, Please, God, please, God. Then the damn TV pops up and everybody converges on my office: [Joint Chiefs of Staff] chairman [Mark Milley], Secretary of the Army [Ryan] McCarthy, the crew just converges.” And as intelligence started cycling in, things went from watch and see to “a current op.” Miller recalled, “We had already decided we’re going to need to activate the National Guard, and that’s where the fog and friction comes in.”

“The D.C. mayor finally said, ‘Okay, I need more,’” Kash Patel would tell me. “Then the Capitol police—a federal agency and the Secret Service made the request. We can support them under Title 10, Title 32 authorities for [the] National Guard. So [they] collectively started making requests, and we did it. And then we just went to work.”

With his use of the word “finally,” Patel insinuates there was a delay before Bowser called and asked for help. Meanwhile, Miller suggests that DOD’s response took place at 2:30PM.

The timeline, however, shows that Bowser requested help 29 minutes after DOD says they got “open source reports” of demonstrators moving on the Capitol.

1305: A/SD receives open source reports of demonstrator movements to U.S. Capitol.

1326: USCP orders evacuation of Capitol complex.

1334: SECARMY phone call with Mayor Bowser in which Mayor Bowser communicates request for unspecified number of additional forces.

1349: Commanding General, DCNG, Walker phone call with USCP Chief Sund. Chief Sund communicates request for immediate assistance.

1422: SECARMY phone call with D.C. Mayor, Deputy Mayor, Dr. Rodriguez, and MPD leadership to discuss the current situation and to request additional DCNG support.

1430: A/SD, CJCS, and SECARMY meet to discuss USCP and Mayor Bowser’s requests. 1500: A/SD determines all available forces of the DCNG are required to reinforce MPD and USCP positions to support efforts to reestablish security of the Capitol complex.

1500: SECARMY directs DCNG to prepare available Guardsmen to move from the armory to the Capitol complex, while seeking formal approval from A/SD for deployment. DCNG prepares to move 150 personnel to support USCP, pending A/SD’s approval.

1504: A/SD, with advice from CJCS, DoD GC, the Chief of the National Guard Bureau (CNGB), SECARMY, and the Chief of Staff of the Army, provides verbal approval of the full activation of DCNG (1100 total) in support of the MPD. Immediately upon A/SD approval, Secretary McCarthy directs DCNG to initiate movement and full mobilization. In response, DCNG redeployed all soldiers from positions at Metro stations and all available non-support and non-C2 personnel to support MPD. DCNG begins full mobilization.

The Vanity Fair profile suggests DOD made the decision based off watching TV — presumably those open source reports — that reinforcements would be needed. But they didn’t even begin to “discuss” doing so until 2:30, and didn’t move to make that deployment until 3:04 (so 34 minutes after Miller describes).

Plus, Patel makes no mention of the call from Capitol Police at 1:49.

Ezra Cohen would like you to believe that he got thrown under the bus along with all the people supporting rule of law. Patel would like you to believe the failures of DOD under his watch were not attributable to the Chief of Staff. And Miller would like you to know his family doesn’t much like Donald Trump.

But the whole story reads like a fairy tale.

Now We Know Why Jeffrey Rosen Has Been Silent, How About Chris Wray?

Since the attempted coup, both Jeffrey Rosen and Chris Wray (and Wray’s then-Deputy David Bowdich) were almost silent about the attack. A week after the attack, Rosen  a video in the middle of the night, explaining what he had done during the coup.

The day after, Wray released a short statement. More than a week later, he spoke at a closed-press meeting on inauguration security. Neither provided the kind of daily updates one would expect after such an attack.

Last night (as Rayne laid out here), NYT reported on why Rosen was so silent: because he’s a witness in what should be a criminal investigation into how the attack relates to the effort to overturn the election.

As the NYT lays out, in the days leading up to the coup attempt, Trump already tried to replace Rosen with someone, Jeffrey Bossert Clark, who would be willing to take steps to overturn the vote.

The effort to force Rosen to use DOJ resources to undermine a democratic election started on December 15, the day after Bill Barr resigned.

When Mr. Trump said on Dec. 14 that Attorney General William P. Barr was leaving the department, some officials thought that he might allow Mr. Rosen a short reprieve before pressing him about voter fraud. After all, Mr. Barr would be around for another week.

Instead, Mr. Trump summoned Mr. Rosen to the Oval Office the next day. He wanted the Justice Department to file legal briefs supporting his allies’ lawsuits seeking to overturn his election loss. And he urged Mr. Rosen to appoint special counsels to investigate not only unfounded accusations of widespread voter fraud, but also Dominion, the voting machines firm.

Then, over the weekend in advance of the certification, Assistant Attorney General Jeffrey Bossert Clark told Rosen Trump was going to make him Attorney General so he could chase Rudy Giuliani’s conspiracy theories.

On New Year’s Eve, the trio met to discuss Mr. Clark’s refusal to hew to the department’s conclusion that the election results were valid. Mr. Donoghue flatly told Mr. Clark that what he was doing was wrong. The next day, Mr. Clark told Mr. Rosen — who had mentored him while they worked together at the law firm Kirkland & Ellis — that he was going to discuss his strategy to the president early the next week, just before Congress was set to certify Mr. Biden’s electoral victory.

Unbeknown to the acting attorney general, Mr. Clark’s timeline moved up. He met with Mr. Trump over the weekend, then informed Mr. Rosen midday on Sunday that the president intended to replace him with Mr. Clark, who could then try to stop Congress from certifying the Electoral College results. He said that Mr. Rosen could stay on as his deputy attorney general, leaving Mr. Rosen speechless.

In a replay of the 2004 Hospital Hero moment, the others involved (including White House Counsel Pat Cipollone) agreed they’d resign en masse if Trump replaced Rosen, which led him to back off the plan.

NYT had four sources for this story, all of whom fear — even after Trump has been relegated to Florida — retaliation.

This account of the department’s final days under Mr. Trump’s leadership is based on interviews with four former Trump administration officials who asked not to be named because of fear of retaliation.

Clark claimed there were errors in this story, but ultimately he claimed Executive Privilege (his statement to WaPo on the topic, which I’ve used here, is more expansive).

In a statement that seemed to draw on language in the New York Times account, Clark said, “I categorically deny that I ‘devised a plan . . . to oust’ Jeff Rosen. . . . Nor did I formulate recommendations for action based on factual inaccuracies gleaned from the Internet.”

“My practice is to rely on sworn testimony to assess disputed factual claims,” Clark said. “There were no ‘maneuver[s].’ There was a candid discussion of options and pros and cons with the President. It is unfortunate that those who were part of a privileged legal conversation would comment in public about such internal deliberations, while also distorting any discussions. . . . Observing legal privileges, which I will adhere to even if others will not, prevent me from divulging specifics regarding the conversation.”

The WaPo version of this story names all who were involved in the confrontation with Trump (though the sources for the story are likely, in part, their aides).

At the meeting were Trump, Clark and Rosen, along with Richard Donoghue, the acting deputy attorney general; Steven A. Engel, the head of the department’s Office of Legal Counsel; and Pat Cipollone, the White House counsel, the people familiar with the matter said. The people said Rosen, Donoghue, Engel and Cipollone pushed against the idea of replacing Rosen, and warned of a mass resignation.

Clark says he will only respond to a sworn statement. By all means, the impeachment managers should demand sworn testimony, from all involved.

Of course, that would mean Pat Cipollone, who led the former President’s defense in his first impeachment trial, would be asked about the second time Trump tried to use government resources to cheat. Steve Engel, who authorized the withholding of a whistleblower complaint describing Trump’s earlier attempt, would also testify. Rosen, who participated in having DOJ chase Sidney Powell’s conspiracy theories about Mike Flynn, would be asked to testify about why the conspiracy theories about Dominion machines were any less credible than the Flynn ones. And Donoghue, who served as a filter for some of the conspiracy theories Rudy Giuliani had been fed by men who have since been named Russian agents, would be asked to testify about why Rudy wasn’t a credible source.

Rosen was silent in his final two weeks, presumably, for fear he might get fired and replaced by someone who would be more pliant to a coup attempt. But he — and the three others — are also witnesses to a larger plot that ended up in violence and death.

I wonder if Chris Wray has similar evidence he’ll be asked to share.

“Stand Back and Stand By:” The Proud Boys Node of the January 6 Attack

As I and others have reported, a node of three people with ties to the Oath Keepers is, thus far, the first sign of a larger conspiracy charge in the government’s investigation of the January 6 insurrection.

It’s clear the government believes they can get there with the Proud Boys, either in conjunction with or parallel to the Oath Keepers. But they’re not there yet.

I want to lay out what they’ve shown about the Proud Boys operations thus far.

In addition to Enrique Tarrio (who was arrested before the riot for vandalizing a black church in December), the government has identified six people as Proud Boy adherents in affidavits (plus Robert Gieswein, who coordinated with them):

While some of these — notably, Bryan Bentancur, who lied to his parole officer about handing out bibles to excuse a trip to DC that day — were caught incidentally, it’s clear that Biggs and Pezzola were priorities, the former for his leadership role in the group and the latter for his appearance in videos breaking in a window with a police shield.

Between these affidavits, the government has provided evidence that the Proud Boys plan their operations in advance, with this quote from a Joe Biggs interview.

When we set out to do an event, we go alright, what is or main objective? And that’s the first thing we discuss. We take three months to plan an event. And we go, what’s our main objective? And then we plan around that, to achieve that main objective, that goal that we want.

In the case of the January 6 insurrection, that pre-planning involved creating a false flag to blame Antifa. The government showed this in a Tarrio message posted in December.

For example, on December 29, 2020, Tarrio posted a message on the social media site Parler1 about the demonstration planned for January 6, 2021. Among other things, Tarrio announced that the Proud Boys would “turn out in record numbers on Jan 6th but this time with a twist… We will not be wearing our traditional Black and Yellow. We will be incognito and we will be spread across downtown DC in smaller teams. And who knows….we might dress in all BLACK for the occasion.” I believe the statement about dressing in “all BLACK” is a reference to dressing like the group known as “Antifa,” who the Proud Boys have identified as an enemy of their movement and are often depicted in the media wearing all black to demonstrations.

And the government showed agreement between Tarrio and Biggs with this similar message from Biggs.

On or around the same day, BIGGS posted a similar message to his followers on Parler in which he stated, among other things, “we will not be attending DC in colors. We will be blending in as one of you. You won’t see us. You’ll even think we are you . . .We are going to smell like you, move like you, and look like you. The only thing we’ll do that’s us is think like us! Jan 6th is gonna be epic.” I understand that BIGGS was directing these statements at “Antifa.”

Daniel Goldwyn, texting that day, addressed the claim of a false flag on texts.

The government provided evidence that members of the Proud Boys had followed the false flag plan, with pictures of the men marching through DC “incognito” before the insurrection.

On January 6, 2021, an individual that I have identified as BIGGS and a group of people that hold themselves out as Proud Boys were depicted on the east side of the U.S. Capitol. Consistent with the directive issued by organizers of the Proud Boys, including Tarrio and BIGGS, none of the men pictured are wearing Proud Boys colors of black and yellow, but are instead dressed “incognito.” Indeed, BIGGS, wearing glasses and a dark knit hat, is dressed in a blue and grey plaid shirt.

In Biggs’ affidavit (the most recent of the six), the government also provided evidence of communications between members during the attack.

Your affiant has reviewed additional footage from the events inside the U.S. Capitol. In one image, shown below, Pezzola appears to have what I believe to be an earpiece or communication device in his right ear. In my experience, such a device could be used to receive communications from others in real time. Your affiant also notes that multiple individuals were photographed or depicted on videos with earpieces, including other individuals believed to be associated with the Proud Boys. For instance, in the picture of the Proud Boys referenced above in Paragraph 13, an individual believed to be part of the group is pictured wearing a similar earpiece.

Your affiant has also identified certain Proud Boys at the U.S. Capitol on January 6, 2021, who appear to have walkie-talkie style communication devices. For instance, in the picture of the Proud Boys referenced above in Paragraph 13, both BIGGS and the individual next to him have such devices on their chests.

Gabriel Garcia is described as captain by another of the men (though it’s unclear whether thank rank was replicated in the group).

Additionally, on January 8, 2021, the FBI received information from the public regarding a separate subject (“S-1”). S-1 uploaded to Facebook pictures of himself inside of the Capitol building on January 6, 2021. As FBI Agents reviewed the evidence related to that report, they discovered that S-1 posted a status on Facebook tagging GARCIA and calling him “El Capitan.” The caption reads, “El Capitan doing his duty. Gabriel Garcia.” Systems checks reveal that GARCIA is a former captain in the United States Army. GARCIA also uses the handle “Captain” as his display name on the social media platform Telegram

Affidavits provide two different descriptions of Pezzola being among the first to break into the Capitol.

One such video depicts an individual, now identified as Proud Boys member Dominic Pezzola, breaking the window of the U.S. Capitol Building with a clear plastic shield at approximately 2:13 p.m.3 Shortly after the glass in the window is broken, an unidentified individual can be heard yelling words to the effect of, “Go, Go, Go!” Several individuals enter the building through the broken window, including Pezzola. A nearby door was opened and a crowd of people began to enter the U.S. Capitol.

This one comes from the Pezzola affidavit.

On January 8, 2021, FBI received a lead depicting publicly available photographs and videos of an unknown individual breaking the window of the U.S. Capitol Building, which is located in Washington, D.C., with a clear plastic shield, and then entering the Capitol building. According to time and date stamps, this occurred on January 6, 2021, at approximately 2:39 p.m.. Below are screen shots from one such video. In the video, soon after the glass in the window is broken, an unidentified individual can be heard yelling words to the effect of, “Go, Go, Go!” The individual with the shield is depicted in the video as entering the Capitol building, while still holding the shield. The screen shot on the left shows the individual breaking the window, and the screen shot on the right, which is taken seconds after the other screenshot, shows his face.

The government has provided some (albeit thus far, scant) evidence that one plan was to target members of Congress, which Garcia calling Pelosi out personally.

Approximately 35 seconds into the video, GARCIA says loudly, “Nancy come out and play.”

There is a witness (who may not be entirely reliable) describing the group to be armed.

W-1 stated that other members of the group talked about things they had done during the day, and they said that anyone they got their hands on they would have killed, including Nancy Pelosi. W-1 further stated that members of this group, which included “Spaz,” said that they would have killed [Vice President] Mike Pence if given the chance. According to W-1, the group said it would be returning on the “20th,” which your affiant takes to mean the Presidential Inauguration scheduled for January 20, 2021, and that they plan to kill every single “m-fer” they can.1 W-1 stated the men said they all had firearms or access to firearms.

In Biggs’ affidavit, the government describes Biggs disclaiming having any advance plan.

On or about January 18, 2021, BIGGS spoke with agents of the FBI after video emerged online of him inside the U.S. Capitol. BIGGS stated, in substance and in part, that he was present in Washington, D.C. for the demonstration on January 6, 2021. BIGGS admitted to entering the Capitol building on January 6, 2021, without forcing entry. BIGGS informed the interviewing agent that the doors of the Capitol were wide open when he made entry into the building. BIGGS denied having any knowledge of any pre-planning of storming the Capitol, and had no idea who planned it.

And in two cases, the government has provided evidence that the group was responding to Trump’s orders.

On November 16, 2020, OCHS made a post to the social media site Parler, in which he forwarded a Tweet by President Trump declaring, “I WON THE ELECTION!” and OCHS stated, “Show this tweet to leftists and say they won’t do shit when he just keeps being president. Don’t say it was stolen or rigged. Just say we’re doing it and they won’t fight back. They are getting scared, and they don’t function when they’re scared.

In Goodwyn’s case, the government shows him adopting Trump’s avatar on Twitter and repeating Trump’s own line from the debate, “Stand back and stand by.”

Again, this is just what’s public two weeks after the attack, and just those whom the government identified as members. There are others (notably John Sullivan, whose brother has not been arrested but who has ties to the group), who would be obvious candidates to flip to learn more about the group, and there are some tangential figures not included here.

This route is one of the most likely ones via which the government will tie the violence to those close to Trump trying to undermine the election and — with Trump’s “Stand back and stand by” comment — possibly even Trump.

Update: Corrected how Pezzola broke in.

Update: Tarrio was also offering to pay for lawyers for people.

Update, 1/26: I’ve added Robert Gieswein to this list, based on this WSJ video showing him involved throughout the day with the Proud Boys.

Update, 1/27: I’ve added Andrew Bennett, who was described as wearing a Proud Boy hat in his affidavit.

Amanda Gorman Made Silvester Beaman Sad, Joe Biden Happy, and John Lewis Dance

"https://youtu.be/lI1c-Lbd4Bw

The saddest person on the Inaugural stage was not Mike Pence, the outgoing Vice President. Indeed, after what he had to put up with from Trump for the last month, he’s probably relieved if not outright happy. The saddest person was not Amy Klobuchar or other presidential hopefuls who came up short during the primaries, who no doubt imagined themselves as the person taking the oath of office today. The saddest person on the stage today was the Reverend Doctor Silvester Beaman of Bethel AME Church in Wilmington, Delaware.

The happiest person on the stage was President Joe Biden, but it’s not because he was sworn in as the 46th president of the United States of America. It’s not because the inauguration went off without more violence. It’s not because he can finally *do* things to address all the problems he and we are facing, which had to have been incredibly frustrating as the transition floundered and foundered and blundered its way to today. It’s not because he accomplished what Beau wanted him to do.

The reason Beaman was so sad and Biden was so happy is this: Biden finished before Amanda Gorman spoke and Beaman had to follow her. Honestly, I half expected Beaman to step up to the microphone, ask “Can I get an Amen?”, and then drop the folder with his prepared benediction and sit down. Don’t get me wrong: Beaman’s words were good, but he had to know that he was following something epic.

When I saw Gorman come down the Capitol steps wearing her yellow power coat, her bold hoop earrings, her bright red wrap around the powerful tight braids atop her head, I just sat back and smiled. Michelle Obama looked great in her purple, but she was a member of the audience today. Lady Gaga and Jennifer Lopez both made their entrances before they picked up the microphone, and were fine, but Gorman owned those steps in a way that no on else did today. Seeing her enter reminded me of AOC stepping onto the House floor in her power red suit as she prepared to respond to being called a “fucking bitch” by Florida Congressman Ted Yoho. Before Gorman opened her mouth, it was clear that she had Something To Say and it was going to be good.

And make no mistake: she did, and it was.

It was incredibly powerful for three reasons. First, Gorman was unapologetically herself: young, African-American, articulate, and proud of all three. She did not cast herself as Maya Angelou or Robert Frost, two earlier inaugural poets. She spoke with the rhythms of rap that are the language of her generation and her community, embracing the whole heritage of Africans on this continent, and conscious of her power in this moment.

Second, Gorman was unflinchingly honest. She spoke of the ugliness of our history at times, at the tragedies we have been through, and the reality of what is going on right now. There were no pious platitudes to paper over the pain that far too many have had to deal with for far too long.

Most of all, Gorman was unimaginably hopeful. If she owned and possessed the four centuries of pain poured out on the Africans brought to this country in chains and their descendants who lived through slavery, official Jim Crow, and unofficial oppression, she also owned and possessed the strength that carried them through it all, forcing this country to slowly and painfully look at its past, decide to change, and actually make those changes begin to come to be.

But while democracy can be periodically delayed,
it can never be permanently defeated.
In this truth, in this faith we trust
for while we have our eyes on the future, history has its eyes on us.

This is the era of just redemption.
We feared it at its inception.
We did not feel prepared to be the heirs of such a terrifying hour,
but within it, we found the power
to author a new chapter,
to offer hope and laughter
to ourselves so while once we asked,
how could we possibly prevail over catastrophe?
Now we assert:
how could catastrophe possibly prevail over us?

We will not march back to what was,
but move to what shall be
a country that is bruised, but whole,
benevolent, but bold,
fierce, and free.
We will not be turned around or interrupted by intimidation
because we know our inaction and inertia will be the inheritance of the next generation.
Our blunders become their burdens.
But one thing is certain,
if we merge mercy with might and might with right,
then love becomes our legacy and change our children’s birthright.

And with these words, I thought immediately of John Lewis, the happiest person *not* on the stage today.

Gorman was not mindlessly repeating the words of an earlier generation of activists, but building on them. Just as the 23 year old John Lewis spoke on the steps of the Lincoln Memorial in 1963, so the 22 year old Amanda Gorman stood at the other end of the Mall, on the steps of the Capitol in which John Lewis served until he died, and she is taking this nation one more step forward. She isn’t asking permission to do this, or suggesting this be done. She is declaring reality: we will not be turned around or interrupted by intimidation.

I am glad that Joe Biden and Kamala Harris defeated Donald Trump and Mike Pence. I am relieved that we have made it through the transition between the election and today. I am still shaken by the insurrection of January 6th and what may yet lie ahead on that front. But I am dancing in my living room right now, and am convinced that John Lewis is dancing in heaven today, because in Amanda Gorman we see that the good troublemaking goes on.

How could catastrophe possibly prevail?

The First Node of the Insurrection Conspiracy: The Oath Keepers

With a fairly steady drumbeat since the day of the attempted coup pm January 6, the government has been charging one after another person involved, most based off evidence obtained via social media and tips from those who know them. But that has left the picture surrounding the event rather formless, probably (given that almost all the affidavits were written by different FBI Agents) intentionally so.

That began to change in the last two days with charges against Jessica Watkins, retired Marine Donovan Ray Crowl, and Edward Caldwell, with the former two members of an Ohio militia and Caldwell coordinating their efforts as part of a larger Oath Keepers effort.

These Affidavits describes that Watkins and Crowl were in the disciplined unit that entered the Capitol in formation.

I have reviewed footage of the January 6, 2021, incursion of the U.S. Capitol, including a video that, at the approximate 3 minute and 8 second mark, shows 8 to 10 individuals in paramilitary equipment aggressively approaching an entrance to the Capitol building.1 These individuals, who are wearing helmets, reinforced vests, and clothing with Oath Keepers paraphernalia, move in an organized and practiced fashion and force their way to the front of the crowd gathered around a door to the U.S. Capitol.

It relies for that claim on Parler postings from Watkins describing using force to get into the Capitol and entering the Senate, not to mention IDing her compatriots.

Crowl also did an interview with Ronan Farrow.

The Caldwell affidavit describes that, after returning home to Ohio after the initial riot, Watkins then went back to the DC area to stay with Caldwell.

During the course of this investigation, law-enforcement authorities spoke with Witness-1 (W-1). W-1 informed that although WATKINS returned to Ohio after the January 6, 2021 incursion, she subsequently left Ohio on or about January 14, 2021, to stay with a friend and fellow Oath Keeper whom W-1 knew as “Tom” or “Commander Tom.” As described below, your affiant believes this individual is CALDWELL. WATKINS also provided W-1 with instructions on how to contact her, including by providing a phone number at the location where she would be staying, 540-XXX-XXXX. A database check for this phone number reveals that it is a phone on CALDWELL’s property, the PREMISES. [number substituted]

The Caldwell affidavit then describes him, before the January 6 insurgency, recommending they pile into one or two rooms at the Comfort Inn in Ballston. It describes Crowl messaging Caldwell that he’d be seeing him soon and calling him Commander.

It also cites Caldwell’s own social media posts from the riot, including his report of what the Proud Boys had done to push the cops out of the way.

Caldwell also sent a Facebook message (this may be private, which, since there’s no mention of a warrant, would suggest another witness shared it with the FBI) saying,

We need to do this at the local level. Lets storm the capitol in Ohio. Tell me when!

Watkins and Crowl were charged with the two trespassing-based charges virtually everyone gets charged with, along with 18 USC 1512(c)(2), tampering with a proceeding, which carries a 20 year sentence.

Caldwell is charged with the two trespassing charges, the tampering one, along with conspiracy to tamper, and abetting.

Presumably, the FBI has been obtaining search warrants to identify the other people involved in this node of activity, including the common communication between (for example) Caldwell and the Proud Boys, as well as the Ohio Militia and the Oath Keepers more generally. Likewise, the FBI is likely using location data from within the Capitol to understand precisely what these people were doing.

This is not the first use of a conspiracy charge (the zip tie guy and his mom were charged with conspiracy, too, but that was probably because there was less direct social media evidence of her inside the Capitol and also as a means to get her son to cooperate), but it is one that is likely to be fleshed out as a way to force people to confess what the larger plan, if any, was.

Update: Corrected how zip tie guy and mom were charged.

Update: DOJ has released a more detailed conspiracy charge against these dirtbags. This Facebook message is one of the most chilling:

On January 6, 2021, while at the Capitol, CALDWELL received the following Facebook message: “All members are in the tunnels under capital seal them in . Turn on gas”. When CALDWELL posted a Facebook message that read, “Inside,” he received the following messages, among others: “Tom take that bitch over”; “Tom all legislators are down in the Tunnels 3floors down”; “Do like we had to do when I was in the core start tearing oit florrs go from top to bottom”; and “Go through back house chamber doors facing N left down hallway down steps.”

The Recent Radicalization of the Woman Who Allegedly Stole the Pelosi Laptop

A number of outlets (Politico may have been the first) are reporting on the story of Riley June Williams, who was charged (but not arrested) yesterday in crimes related to the January 6 insurrection. The paragraph of her arrest affidavit that has gotten the most attention describes how a witness (Witness 1) told the FBI that he or she had seen a video depicting Williams stealing a laptop or hard drive from Pelosi’s office with the intent of selling it, via a third person, to Russian intelligence.

W1 also claimed to have spoken to friends of WILLIAMS, who showed W1 a video of WILLIAMS taking a laptop computer or hard drive from Speaker Pelosi’s office. W1 stated that WILLIAMS intended to send the computer device to a friend in Russia, who then planned to sell the device to SVR, Russia’s foreign intelligence service. According to W1, the transfer of the computer device to Russia fell through for unknown reasons and WILLIAMS still has the computer device or destroyed it. This matter remains under investigation.

I wanted to look at the background to that story.

First, the investigation into Williams may have started when Witness 1 called into FBI tip lines “in the days following” the insurrection.

In the days following the January 6, 2021, events, a witness (“W1”) made several phone calls into the FBI’s telephone tip line related to the U.S. Capitol attacks.

Witness 1 presented as Williams’ former romantic partner, of unspecified sex.

In them, the caller stated that he/she was the former romantic partner of RILEY JUNE WILLIAMS (“WILLIAMS”), that he/she saw WILLIAMS depicted in video footage taken on January 6, 2021, from inside the U.S. Capitol Building

The affidavit doesn’t say, but it is possible that Witness 1 first saw Williams in videos posted of that day, and then started calling Williams’ friends, which led to the discovery of the Pelosi laptop story. There’s no mention in the affidavit of a more extensive interview with Witness 1– just multiple tips pointing to online videos and the claim that “friends” of Williams showed Witness 1 a video. The laptop video does not appear in the affidavit (nor is there any indication it has been posted publicly). Its existence, then, is all filtered through the credibility — or not — of Witness 1.

The affidavit also reveals that Williams’ mom made a suspicious persons report about Witness 1 on or before January 11, so probably after Witness 1 first called into tips about Williams. When Harrisburg-based FBI agents responded to that suspicious person report, Williams’ mom was still able to reach Williams by phone.

I have spoken with local law enforcement agents in Harrisburg about their recent interactions with WILLIAMS’ parents. According to those officers, on January 11, 2021, local law enforcement received a suspicious persons report filed by WILLIAMS’ mother. Officers arrived at the address that WILLIAMS shares with her mother and interviewed her mother. WILLIAMS was not present. According to WILLIAMS’ mother, the suspicious person was assumed to be W1. WILLIAMS’ mother, with officers present, used her cell phone to place a video-enabled phone call to WILLIAMS. Officers observed WILLIAMS on her mother’s cell phone screen and noted that WILLIAMS was wearing a brown-colored jacket, consistent with the screenshots above.

Williams’ mom told reporters — but not, apparently, the FBI — that her daughter had just recently gotten involved in “far right message boards.”

The reporter then interviewed a woman who identified herself as WILLIAMS’ mother and showed her some type of video footage. WILLIAMS’ mother then stated that she recognized her daughter inside the U.S. Capitol Building and that her daughter had taken a sudden interest in President Trump’s politics and “far right message boards.” She claimed that WILLIAMS “took off,” “is gone,” and is waiting for law enforcement to come to WILLIAMS and ask her about her activities in the Capitol .

Even though this affidavit suggests Williams’ mom called the FBI about former partner Witness 1, it seems that on some date not described in the affidavit, Williams skipped town and took precautionary measures.

It appears that WILLIAMS has fled. According to local law enforcement officers in Harrisburg, WILLIAMS’ mother stated that that WILLIAMS packed a bag and left her home and told her mother she would be gone for a couple of weeks. WILLIAMS did not provide her mother any information about her intended destination. Sometime after January 6, 2021, WILLIAMS changed her telephone number and deleted what I believe were her social media accounts on Facebook, Instagram, Twitter, Reddit, Telegram, and Parler.

Williams’ dad, who doesn’t live with her mom (though he does live in the Harrisburg area), drove to and from the rally with her, but was not with her during the day.

According to the Harrisburg officers, on or about January 16, 2021, officers called WILLIAMS’ father who resides in Camp Hill, PA. He stated that he drove to Washington, D.C., with WILLIAMS for the protests on January 6, 2021. He stated that his daughter and he did not stay together throughout the day and that WILLIAMS was meeting up with other individuals she knew at the protests. WILLIAMS later met up with her father outside of the U.S. Capitol Building, and they returned home to Harrisburg together.

I raise all this to suggest that there are at least two narrators here — the mom, who called the FBI about the former partner and not the far right friends, knew where her daughter was but now says she’s gone, and the former partner, who claims to have known what friends Williams was with but who also might have been recently dumped — who should not be trusted unquestioningly. And the dad appears to have his own ties to this world.

All that’s particularly important background for what is likely the more important detail in the affidavit: Williams was directing traffic inside the Capitol, and directing mobs up a staircase to Pelosi’s office.

She has brown shoulder length hair and wears eyeglasses. She is wearing a black face mask below her chin, around her neck. She can be heard in the video repeatedly yelling, “Upstairs, upstairs, upstairs,” and can be seen physically directing other intruders to proceed up a staircase.

[snip]

I have also reviewed maps of the interior areas of the U.S. Capitol and confirmed the subject appears to have been in an area near “the crypt,” sometimes referred to as the “Small House Rotunda.” In the audio of the ITV News video, the reporter states that the recording took place near the U.S. Capitol Building area called “the crypt.” In the background of the top screenshot above, a bust of Winston Churchill is visible behind the subject, which is also consistent with the location in the “Small House Rotunda.” The maps confirm that there is a nearby staircase, which leads to the office of the Speaker of the United States House of Representatives, Nancy Pelosi.

Here’s a video of a clip included in the affidavit. It shows her rushing out while others are still coming in, and gives a better view of her zebra striped back described in the affidavit.

The stolen laptop may or may not exist (though, as Peterr notes below, Pelosi told Lesly Stahl one was stolen). It may or may not be headed to Russian intelligence (though it did make me think of reports on a Russian tie to far right activists in Lancaster, PA leading up to the election).

But a far better documented part of this story is that this woman, whose mother claims is new to this scene, was already in a position to be briefed on and directing traffic the day of the attack.

Updated with the clip to replace the video.

Update: This video appears to show a Pelosi laptop being taken. And this tweet shows “Riley” claiming to have Pelosi’s hard drives.

OpSec Shaming Misses the Terrorists for the Forest of Bozos They Hid Behind

It has been amusing reading the affidavits justifying the arrest of the January 6 insurrectionists to see how easy many of them made it for the FBI.

Yesterday’s favorite example is Samuel Camargo. He posted a picture with some kind of trophy stolen from the Capitol building to his Instagram account and a confession that he had been in the riot on Facebook. After some of his associates reported him and then an FBI agent interviewed him, Camargo posted to his Facebook account claiming — notwithstanding the agent’s view that, “Camargo [had become] uncooperative, questioning your affiant’s loyalty to the constitution, and advised the interviewing agent he had no information to provide” — that he had been cleared of any crime related to the insurrection.

It didn’t work out that way.

InfoSec and cyber journalists are beginning to report on it, too. This happens to be one example, though I’m seeing a number of examples.

But while federal law enforcement has significant legal and technical resources at its disposal — like the ability to get warrants to phone or tech companies to see whose phones were in an area at a specific time, for instance — that’s proven unnecessary for a number of people who have been charged so far.

It goes on to review the OpSec failures of nine different coup-conspirators (and Camargo is not one of them).

I get the sense of schadenfreude that the seeming certainty among insurrectionists that they would not only be victorious but their victory celebrations would be risk-free has instead led to their arrests. I’m especially sympathetic to communities of color for whom similar behavior might have gotten them killed.

But with a few exceptions, notably the identification of “zip tie guys” Larry Rendall Brock (by his ex-wife) and Eric Munschel, as well as the identification of Proud Boys member, “Spaz,” as the retired Marine Dominic Pezzola (the latter of whom was arrested with the help of two seeming insider cooperating witnesses), few of the arrests so far have been of the most dangerous insurrectionists.

For example, even though the FBI posted this image of the person suspected of placing bombs at both the RNC and DNC on the day of the attack, there’s no public indication that the FBI has any leads on who it is.

According to former Capitol Police Chief Steven Sund, the discovery of the bombs distracted his leadership team from the growing riot at a key moment on January 6.

Sund told NPR on Friday that he increasingly believes the insurrection was part of a coordinated, planned attack on the Capitol. Specifically, Sund believes that reports of pipe bombs planted at the headquarter offices of the Republican National Committee and the Democratic National Committee in southeast Washington were part of an effort to distract police as the violent mob approached the Capitol complex.The Justice Department said it has “no direct evidence of kill or capture teams” but is still looking into what kind of planning there was.

Sund said moments before those reports came through, he was in the operations center for Capitol Police and watching the rally with President Trump at the Ellipse.

“We had the volume up a little bit so I can kind of hear what was going on, listening for anything — anything that was going on down there,” Sund said. Then “we had to turn the volume down to, you know, again, to direct our attention toward the first pipe bomb that was over at the Republican National Committee.”

The FBI has said the first pipe bomb was reported at 1 p.m. ET at the RNC in southeast Washington, followed by a report of a second pipe bomb at the DNC at 1:15 p.m. A suspect in that case has not be identified.

“I think that’s all part of the concerted and coordinated efforts that led to the violent attack,” Sund said. “Those were diversionary tactics to pull resources away from the Hill in advance of that attack. I honestly believe that.”

Likewise, I’ve seen no indication that the FBI has leads on members of a team of men who quietly snaked through the loud mouths on the stairs and into the Capitol in military formation, even though they wore insignia from the Oath Keepers, one of the most closely watched right wing terrorist groups.

As President Donald Trump’s supporters massed outside the Capitol last week and sang the national anthem, a line of men wearing olive-drab helmets and body armor trudged purposefully up the marble stairs in a single-file line, each man holding the jacket collar of the one ahead.

The formation, known as “Ranger File,” is standard operating procedure for a combat team that is “stacking up” to breach a building — instantly recognizable to any U.S. soldier or Marine who served in Iraq and Afghanistan. It was a chilling sign that many at the vanguard of the mob that stormed the seat of American democracy either had military training or were trained by those who did.

[snip]

A close examination of the group marching up the steps to help breach the Capitol shows they wore military-style patches that read “MILITIA” and “OATHKEEPER.” Others were wearing patches and insignias representing far-right militant groups, including the Proud Boys, the Three Percenters and various self-styled state militias.

Thus far, most of the charges involve involve illegal entry and interfering with cops. It would be easy for law enforcement to focus on the chum along with the murderers of Brian Sicknick, while concentrating less closely on the people whose good OpSec has not only allowed them to delay capture, but seems to have succeeded in ensuring the Capitol would be as vulnerable as possible. Worse still, with limitations on resources in the DC District Court — most notably a scarcity of grand jury time because of COVID — the flood of idiots entering the system might delay the pursuit of more dangerous terrorists.

Yes, let’s have our fun. Let’s use the ease with which some have been caught as a way to scare the terrorism tourists from showing up on Inauguration Day or in their state capitals, to say nothing of exposing them to shame in their communities.

But let’s remember that, to a significant extent, the people taking selfies and trophies from the Capitol building were largely the camouflage behind which more dangerous men appear to have hidden.

Update: After I posted on Sunday, the government arrested several more more dangerous people. Most were all still identified via public videos. But working through these networks will likely lead to those who avoided closer video scrutiny.

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