Pandora’s Presidential Archives, Couy Griffin Edition

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The attorney for New Mexico politician and Cowboys for Trump founder, Couy Griffin, is a guy named Nick Smith.

He is laudably aggressive. And in a case in which Griffin was charged just with trespassing (18 USC 1752), Smith has fought the prosecution every step of the way, even though if Griffin were to get jail time, he already served time after his arrest and so likely would only get time served.

In July, DC’s Trumpiest judge, Trevor McFadden, soundly denied Griffin’s first attempt to get the 1752 charges thrown out, arguing that Smith’s legalistic interpretation of the required role of Secret Service didn’t accord with the statutory history.

While Griffin clings to this statutory history, it ends up being more cement shoes than life preserver. By 2006 Congress rewrote the statute, in the process eliminating reference to the Treasury Department and to any “regulations” from any executive branch agency. 5 18 U.S.C. § 1752 (2006). More, the new statute criminalized merely entering or remaining in a restricted area; the old statute required further action, such as impeding government business, obstructing ingress or egress, or physical violence. Compare 18 U.S.C. § 1752(a)(1) (2006) with 18 U.S.C. § 1752(a) (1970). But Congress did not stop there. In 2012 it reconfigured the statute, adding the term “restricted buildings or grounds” and then defining it under subsection (c), as it appears today. 18 U.S.C. § 1752(a) (2012). Congress did not take that opportunity to clarify who can or must do the restricting, leaving it open-ended. But Congress did lower the mens rea requirement, striking the requirement that a defendant act “willfully.”

So what should the Court gather from this foray into § 1752’s statutory history? “Not much” would be a fair answer. Perhaps better would be to recognize the direction of Congress’s legislative march, where at every turn it has broadened the scope the statute and the potential for liability. Even if Griffin were correct that earlier versions required Secret Service authorizations of restrictions, the Court cannot reconstitute provisions that Congress has jettisoned. And the Court cannot agree with Griffin that woven through these increasingly broad versions of the statute was a latent limitation that only the Secret Service could effectively post, cordon off, or restrict an area.

But in the wake of the description in Jon Karl’s book of where Mike Pence hid from the rioters, Smith tried again, arguing that the space where Mike Pence was evacuated was a garage for another building of the Capitol. Smith argued that meant Pence was not present (and therefore the necessary trigger for 1752 was absent). Smith wants the photos that the Secret Service assuredly wants to keep secret (because it reveals the location of a VIP security location), though the language he cites appears to prove him wrong.

The Senate garage, and underground tunnels leading to it, do not fall under the statutory definitions of the Capitol Building and Capitol Grounds. As shown above, all the features making up the “United States Capitol Grounds” are, appropriately enough, above ground. § 5102(a). As to whether the tunnels and Senate underground garage are part of the “Capitol Building” itself, Title 40 answers in the negative. “Capitol Buildings” are defined as follows:

[T]he term “Capitol Buildings” means the United States Capitol, the Senate and House Office Buildings and garages, the Capitol Power Plant, all buildings on the real property described under section 5102(c) (including the Administrative Building of the United States Botanic Garden) all buildings on the real property described under section 5102(d), all subways and enclosed passages connecting two or more of those structures, and the real property underlying and enclosed by any of those structures. 40 U.S.C. § 5101 (emboldening added).

As seen above, the definition of “Capitol Buildings,” plural, distinguishes between the tunnels and underground garages, on the one hand, and the “United States Capitol” building itself, on the other. The “subways,” underground “enclosed passages,” and “garages” are not part of the “United States Capitol” building (the “restricted” building) because they are set off from one another by commas in a list.

Photographic evidence showing that the Secret Service protectee was not present in the § 1752 “building” or “grounds” at the same time as Griffin is Brady material. It should be produced by the government. If it is not, the Court should dismiss the charges pursuant to Local Criminal Rule 5.1(g)(4), as Griffin would then be denied access to evidence going to the heart of his case.

The government response didn’t address the question posed by Smith’s filing, “what is a garage.”

Instead, in a footnote, DOJ says that the photos would not be exculpatory in any case.

The government rejects the Defendant’s contention that the photographs that are the subject of the Defendant’s motion have some exculpatory value. 18 U.S.C. 1752(a)(1) and (2) criminalizes a person entering a restricted area “of a building or grounds where the President or other person protected by the Secret Service is or will be temporarily visiting.” 18 U.S.C. 1752(c)(1)(B). 18 U.S.C. 1752 does not require the Secret Service protectee to be present on the grounds or in the building where the restricted area has been established at the time of an illegal entry into the restricted area. Therefore, the Vice President’s presence in an underground parking garage or tunnel does not exculpate the Defendant with respect to the charged conduct.

But the bulk of the response says that the photos are not Brady because the government doesn’t have possession of the photos.

Brady material is material in the government’s possession that has some exculpatory or impeachment value. United States v. Nelson, 979 F.Supp.2d 123 (D.C. Cir. 2013). The photographs requested by the Defendant from the official White House photographer are not in the government’s possession, therefore, they are not considered Brady and the Defendant cannot move to compel their production.1 United States v. Flynn, 411 F.Supp.3d 15 (D.C. Cir. 2019) (“Brady does not extend to information that is not within government’s possession…”). Similarly, the Defendant’s request for these photographs under Federal Rule of Criminal Procedure 16(a)(1)(E) should be denied, as Rule 16 only requires the government to disclose photographs within its possession. Fed. R. Crim. P. 16(a)(1)(E).

It’s not clear exactly what DOJ means by this. But according to President Obama’s White House photographer, Pete Souza, the photos should be in the Archives.

The Presidential Records Act requires that all records including “photographs” be turned over to the National Archives at the end of each administration. This includes Vice Presidential records. Congress should determine why the Archives doesn’t have them.

My guess is that’s precisely where they are, but they don’t count as being in the Executive Branch’s possession because of the way the Presidential Records Act deals with Presidential files. As the National Archives explained in Trump’s lawsuit, Trump’s records count as Presidential records for a period.

In 1978, guided by the Supreme Court’s reasoning in Nixon v. GSA, 1 Congress enacted the PRA, which changed the legal ownership of the official records of the President from private to public, and established a new statutory structure under which Presidents, and subsequently NARA, must manage the records of their Administrations. Under the PRA, records reflecting “the activities, deliberations, decisions, and policies” of the Presidency are “maintained as Presidential records.” 44 U.S.C. § 2203(a). When a President leaves office, the Archivist “assume[s] responsibility for the custody, control, and preservation of, and access to” the Presidential records of the departing administration. Id. § 2203(g)(1). The Archivist generally must make records covered by the PRA available to the public under the Freedom of Information Act (FOIA) starting five years after the President leaves office. Id. § 2204(b)(2), (c)(1); see also 36 C.F.R. § 1270.38. However, the outgoing President may specify that access to records in six defined categories be restricted for up to twelve years after leaving office. 44 U.S.C. § 2204(a); see also 36 C.F.R. § 1270.40(a).

We know Trump is asserting that right with respect to January 6, because as we speak, Trump is asking the Supreme Court to uphold his claim that no one else can access his records without his permission.

Of course, Judge McFadden could order DOJ that it needs to search the Archives for matters pertinent to the investigation — this investigation, and January 6 generally.

I’m sure DOJ would love that! In the case of Griffin, that would give DOJ access to the meeting that Griffin had directly with Trump, and any other contacts that are stored as Presidential Records.

But in the case of Nick Smith’s other clients — most notably Ethan Nordean — it would make records of Trump’s contacts with Proud Boys available, including records on what Enrique Tarrio was doing at the White House in December 2020.

So by all means, let’s have the Trumpiest Judge order DOJ to search through Trump’s records to find discovery pertinent to the January 6 attack, including the pictures of Mike Pence hiding from Trump’s mobsters. But along with that, let’s have the records of Trump’s contacts with them in advance of the insurrection.

Update: Griffin’s lawyers have responded. After having submitted proof that where Pence was was in the Capitol, they now play word games to suggest that “will be” is the same as “is” (and yes, the government has submitted evidence Griffin knew this).

The government is mistaken in several respects. “[R]estricted buildings or grounds” means “any 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.” § 1752(c)(1)(B). Thus, Griffin did not “knowingly enter[] or remain[] in any restricted building or grounds,” § 1752(a)(1), if the vice president was not also present and “temporarily visiting.”

Still, Griffin claims the government has not addressed their Rule 16 claim, and so DOJ must go to NARA and get the photos for him.

The government does not dispute that an official White House photographer took the photographs of the vice president as he passed time outside the “restricted area” on January 6. ECF No. 70. Accordingly, under the Presidential Records Act, the images are records documenting the “activities” of the vice president concerning his “constitutional, statutory, or other official or ceremonial duties. . .” and are thus Presidential records. 44 U.S.C. § 2203(a). When a president leaves office, the National Archives and Records Administration (NARA) assumes “custody [and] control” over Presidential records. § 2203(g)(1). Records of the vice president are transferred to NARA in the same manner. § 2207. NARA is an agency of the Executive branch. § 2102.

Therefore, the government has an obligation to obtain the photographs from NARA and produce them to Griffin, so long as they are merely “material to preparing the defense,” much less Brady material.1 Fed. R. Crim. P. 16(a)(1)(E)(i). It is uncontroversial that satisfying this standard is “not a heavy burden.” United States v. Lloyd, 992 F.2d 348, 351 (D.C. Cir. 1993). Griffin must merely make a showing that the material will “play an important role in uncovering admissible evidence, aiding witness preparation, corroborating testimony, or assisting impeachment or rebuttal.” Id. Of course, if the requested material is “inconsistent with or tends to negate the defendant’s guilt as to any element . . . of the offense(s) with which the defendant is charged” it is also Brady material. LCrR 5.1(b)(1). “[B]urdensomeness and logistical difficulty . . . cannot drive the decision whether items are ‘material’ to preparation of the defense. Nor can concerns about confidentiality and privacy rights of others trump the right of one charged with a crime to present a fair defense.” United States v. O’Keefe, 2007 U.S. Dist. LEXIS 31053, at *4 (D.D.C. Apr. 27, 2007).

As I said, I look forward to, on Trevor McFadden’s order, DOJ going to NARA and getting all the records pertinent to Griffin among Trump’s records. The government can supersede Griffin while he continues to dawdle, and Trump’s own records of Griffin’s relationship might change DOJ’s understanding of the case.

The same is all the more true for the militia defendants that the Smiths represent.

They’re doing this just as SCOTUS’ inaction is creating the opportunity for NARA to provide the first 4 pages of which Trump has claimed privilege over to the Select Committee.

Reporting on the January 6 Investigation: emptywheel Brings Receipts

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I spend a lot of time complaining about what “TV lawyers” claim on TV and Twitter. In response, people often say that Harvard professors or former AUSAs of course must know better than me what the investigation looks like.

So I thought I’d bring receipts. I just got my quarterly bill for PACER, the shitty system via which one obtains court records for $.10 a page. Here’s what it looks like:

The reason I’m posting it is not to ask for donations — though as a reminder, this is my day job and we rely entirely on reader support to pay the bills; if you’d like to chip in I would love the support.

It’s to provide a sense of how big the January 6 investigation is and how much journalistic labor it takes to understand it. While January 6 is not the only case I’m following closely, it obviously dwarfs everything else.

According to PACER I paid to download 8,906 pages in the last three months; I downloaded a ton more (for free) from RECAP. While there’s a lot of boilerplate in the January 6 filings, I read most of them fairly closely, some of them very very closely. I did all that while also following a goodly number of the court hearings in the investigation (because of COVID protocols, I can do that from Ireland).

There are only a handful of journalists who are covering the investigation with this kind of attention — though I imagine Zoe Tillman, Seamus Hughes, Ryan Reilly, Politico collectively, and the rest of that handful have had huge PACER bills for the last year (Hughes always has huge PACER bills, because he spends hours extracting amazing stories from it, on all topics).

When TV lawyers tell you what there is or is not evidence in the January 6 investigation, you might ask them how many thousands of pages of court filings they read before they came to that conclusion. Because chances are very good they’ve read almost none of it.

Key January 6 posts

The Structure of the January 6 Assault: “I will settle with seeing [normies] smash some pigs to dust”

DOJ Is Treating January 6 as an Act of Terrorism, But Not All January 6 Defendants Are Terrorists

While TV Lawyers Wailed Impotently, DOJ Was Acquiring the Communications of Sidney Powell, Rudy Giuliani, and (Probably) Mark Meadows

Why to Delay a Mark Meadows Indictment: Bannon Is Using His Contempt Prosecution to Monitor the Ongoing January 6 Investigation

The Eight Trump Associates Whom DOJ Is Investigating

January 6 Is Unknowable

“I’m Just There to Open the Envelopes:” The Select Committee and DOJ Investigations Converge at Mike Pence

Why It Would Be Counterproductive To Appoint a Special Counsel to Investigate January 6

DOJ’s Approximate January 6 Conspiracies

Easy Cases: Why Austin Sarat’s Argument That Trump Should Not Be Prosecuted Is Wrong

How a Trump Prosecution for January 6 Would Work

Judge Mehta’s Ruling that Donald Trump May Have Aided and Abetted Assaults on Cops Is More Important Than His Conspiracy Decision

“Fill the Silence:” On Obstruction, Listen to DOJ and Merrick Garland

The Disappearing Willard Hotel and the Accused Seditionists’ Other Interlocutors

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Just as sedition bears down on Roger Stone, the government has put a curtain over what they know about his role in it. The government has moved on from Stone, it seems, to other interesting Oath Keeper interlocutors.

Way back in May, I noted how judicious DOJ was being with statements from Stewart Rhodes — referred to officially as Person One back in his halcyon pre-sedition charge days — in the charging documents for Oath Keepers. Within a few days that month, DOJ added to its insurrection narrative a December 14, 2020 Rhodes post calling for Trump to invoke the Insurrection Act via James Breheny’s charging documents. The iteration of the Oath Keeper conspiracy released at the same time (the fourth) introduced Rhodes’ November 9 GoToMeeting discussion of the Insurrection Act that continues to appear in the indictments.

For eight months, in other words, DOJ has been engaged in a slow-reveal of its case against Rhodes.

Now, in the sedition indictment bearing Rhodes’ name, we get a whole lot more of what Rhodes was saying:

  • Calls for civil war as soon as a it became clear Biden should win
  • Rhodes’ adoption of a Serbian (!!!) model for his civil war
  • An oblique comment — dated to “around this time” of the Inauguration — about Rhodes messaging others to organize local militias to oppose Biden’s Administration

Most of the new comments aren’t as scintillating as the catalog describing the personal arsenal Rhodes was purchasing, though, and a few of the new Rhodes comments included were public before.

There are three comments about Rhodes’ communications, though, that I find intriguing because they seem to hint at other interlocutors with the accused seditionists that we may not know about yet.

The first doesn’t even involve Rhodes directly. Rather, it relays Roberto Minuta describing to someone else that 1) Minuta had spoken directly with Rhodes the night of December 18 and 2) Minuta was sharing with someone apparently outside the Oath Keepers how Rhodes felt.

28. Also on December 19, 2020, MINUTA messaged another individual, “Oath Keepers president is pretty disheartened. He feels like it’s go time, the time for peaceful protest is over in his eyes. I was talking to him last night.”

This wasn’t in the prior indictment and I don’t recall it appearing in any other filings in the case (Minuta was not detained, so there’s less about him in the public record). Unless this was originally on the Facebook account Minuta allegedly deleted, there doesn’t seem to be any reason DOJ wouldn’t have obtained this message when they exploited Minuta’s phone. If they’ve had it for months, then the simplest explanation for its inclusion is that this indictment is all about Rhodes, and the comment captures Rhodes’ commitment to violence. In addition, this comment exhibits a closeness between Minuta and Rhodes (which we’ve seen in earlier charging documents) that may be useful from an evidentiary standpoint.

But I suspect it serves an additional purpose. Minuta wrote it not long after the December MAGA March in DC. While there, he had been hanging out with Proud Boys, including Dominic Pezzola (who like Minuta is from upstate New York). It comes after Mike Flynn’s call for insurrection. After Trump tweeted out a promise for Wild Protests on December 19, a ton of aspiring insurrectionists, both organized and not, started making plans to come to DC. In short, this was a key time in the lead-up to the operation, and Minuta was surprisingly well-connected (for a tattoo artist!!!) within the movement. So I suspect his interlocutor here is of some interest (and it’s even possible the government obtained the text from that interlocutor, not Minuta).

An exchange that Kelly Meggs had with Rhodes on Christmas 2020 is similar.

34. On December 25, 2020, MEGGS messaged the OKFL Hangout Chat, in reference to the Joint Session, “We need to make those senators very uncomfortable with all of us being a few hundred feet away.” RHODES then wrote, “I think Congress will screw him [President Trump] over. The only chance we/he has is if we scare the shit out of them and convince them it will be torches and pitchforks time is they don’t do the right thing. But I don’t think they will listen.”

As we recently saw in Proud Boy Matthew Greene’s statement of offense, using proximity to pressure members of Congress (and Pence), became well formulated enough that even a low-level Proud Boy would understand it by the day of the insurrection. Here, both Meggs (who is the Florida-based Oath Keeper who boasted of forging an alliance with the Proud Boys) and Rhodes enunciate this goal, but do so twelve days before the actual attack. As with the Minuta comment, my guess is that the his exchange reflects communication with (at a minimum) the Proud Boys about this shared goal of — in Rhodes’ formulation — terrorizing Congress. It certainly makes it clear that the intent of mobbing the Capitol was formulated well in advance of the event.

There’s one more example. For some reason, DOJ provides the exact time (without time zone) that Rhodes wrote, “There is no standard political or legal way out of this” on December 31, 2020.

40. RHODES and his co-conspirators used the Leadership Intel Chat and other Signal group chats to plan for January 6, 2021. On December 31, 2020, at approximately 10:08 p.m., RHODES wrote to the Leadership Intel Chat, “There is no standard political or legal way out of this.”

For the purposes of the indictment, this shows mens rea that the Yale Law grad leading this insurrection recognized what they were going to do next was not legal. But it also seems to reflect a response (thus the timing) to something — one I haven’t been able to guess yet. The comment comes before Texas Congressman Louie Gohmert’s lawsuit against Mike Pence, the last of a long series of ridiculous “legal” efforts, failed spectacularly. But it comes at around the same time that even Sean Hannity was beginning to give up.

For example, on December 31, 2020, you texted Mr. Meadows the following:

“We can’t lose the entire WH counsels office. I do NOT see January 6 happening the way he is being told. After the 6 th. [sic] He should announce will lead the nationwide effort to reform voting integrity. Go to Fl and watch Joe mess up daily. Stay engaged. When he speaks people will listen.”

I’m not saying that Rhodes was in contact with Hannity: But something seems to have happened just before 10:08 PM (in whatever time zone) that elicited this response which is not dissimilar from where Hannity’s brain was at the time. And if it was non-public (as Hannity’s panic was), then it suggests Rhodes may have been responding to a well-connected interlocutor.

So it’s not so much that the sedition indictment quotes Rhodes as saying really interesting things. Rather, it seems to suggest he and others were saying things to some interesting interlocutors.

Even as the government is hinting at other interesting interlocutors of the accused seditionists, as I noted above, DOJ has entirely hidden the prior back-and-forth between the Oath Keepers and the Willard Hotel. This back-and-forth involving people who were guarding Roger Stone at the Willard that morning first started to show in the Third Superseding Indictment. Once Jonathan Walden — the guy now charged by himself — got added, the indictments included this exchange:

At 9:36 a.m., WALDEN texted JAMES, “Willard hotel?” At 9:51 a.m., WALDEN placed a phone call to JAMES, which is recorded as missed. At 9:52 a.m., WALDEN texted JAMES, “I’m here, awaiting instruction.” At 10:37 a.m., JAMES placed a phone call to WALDEN, which lasted 2 seconds.

Then last month, Kenneth Harrelson released Mike Simmons’ [Person Ten] 302s (purportedly in a desperate bid to adopt his lies, but possibly also to let others know what FBI had been investigation in May).

They revealed that Joshua James, who was in charge of the security detail at the Willard, called in several times to Simmons and seems to have cited Stone’s gripe about being treated poorly to Simmons.

This is what I was referring to in this post about the effect of disappearing Mark Grods, the one overt cooperator who was at the Willard that morning, from all last week’s indictments. Several decisions made in the structure of these most recent indictments — spinning Walden off by himself, disappearing Grods, focusing on the activities of two stacks in the sedition indictment (and thereby starting the narrative at a later point in time), remaining coy about the present status of Simmons, and eliminating James and Minuta in the Crowl indictment — had the effect of eliminating the coordination with the Willard from the sedition indictment altogether.

Poof! Where’s Roger?

Trust me. I don’t think DOJ has decided that the Oath Keepers’ presence at the Willard was unimportant. On the contrary. I think they’ve just decided to move onto making other people sweat about their communications with now-charged seditionists appearing in the indictment, while hiding how much more they’ve learned about the Willard in recent weeks.

Stewie’s Assault Rifle: Comings and Goings in the Sedition Militia

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I’d like to return to what DOJ did with the Oath Keeper indictments.

As I explained, one thing the sedition indictment did is provide DOJ an easy way to split the unwieldy 17-person indictment into two trials. The first, the sedition trial, includes a barely manageable 11 people, all of whom played a leadership role and/or an active role in putting together the Quick Reaction Force stashed at the Comfort Inn in Ballston.

The second, with seven people charged, named “Crowl” after Donovan Crowl, is still just a conspiracy to obstruct the peaceful transfer of power, though charged under the obstruction statute (18 USC 1512(k)), making the potential sentence for the conspiracy charge higher even for those who, like James Beeks, really just hopped on a stack at the last minute. On top of everything else, these defendants now face the prospect of going to trial after what will surely be a high profile sedition trial, which will make it a lot harder to convince a jury of one’s innocence.

In addition, curiously, DOJ charged Jonathan Walden by himself with just obstruction and trespassing.

Whether DOJ charged Walden by himself in preparation of a plea from him or for some other reason, charging him by himself makes a change in naming convention a lot easier.

In past Oath Keeper conspiracy indictments, DOJ referred to charged defendants in all-caps, those who entered cooperating plea deals in standard text, and those who hadn’t been charged yet using a number system, with Person One being Rhodes, as in this paragraph from the December indictment.

The Crowl indictment generally adheres to this practice, listing both those charged in Crowl and those charged with sedition at the beginning to make it clear it’s all one conspiracy.

But because of the way the Crowl indictment is scoped — focusing on what the sedition indictment calls “Stack One” (the one that busted into the Capitol in spectacular fashion) — certain people are not named at all. Roberto Minuta and Joshua James from the sedition indictment aren’t there, Walden, now spun off on his own is not there.

And cooperating witness, Mark Grods, is not there, at all. Whatever references there are to him just refer to him as a co-conspirator.

It’s not just Grods. A bunch of people, formerly numbers, are just co-conspirators now. Perhaps DOJ did that to sow as much paranoia as possible, so that the defendants have no idea who has flipped and who hasn’t. But I’m particularly interested in Grods’ absence for reasons I’ll explain in a follow-up.

Anyway, this naming convention is most notable with the treatment of Person Ten, who has been identified as Michael Simmons by Mother Jones and others, but who is referred to in the sedition indictment as “the operation leader.”

As with Walden, it’s not entirely clear what’s up with Simmons. It cannot be the case that DOJ decided he had no criminal exposure. As prosecutor Kathryn Rakoczy noted in December, Simmons’ attempts to pretend he didn’t know about the insurrection in May FBI interviews “lack credibility.”

Person Ten’s Statements Are Lacking in Credibility

Person Ten, as an uncharged individual who was aware that others have already been charged, had a motive to downplay or disregard both his own involvement and any preplanning efforts. And documentary evidence contradicts Person Ten’s blanket denials. For instance, on October 8, 2021, the government disclosed a Signal chat thread named “Jan 5/6 DC Op Intel team,” which included Person One, Person Ten, codefendant Joshua James, and about seven other individuals. On the Signal thread, shortly before 2:00 p.m. on January 6, a participant posted a video titled “live stream of patriots storming capital.” Another participant asked, “Are they actually Patriots – not those who were going to go in disguise as Patriots and cause trouble[?]” Person Ten authoritatively answered, “[T]here [sic] patriots.” Person One added, “Actual Patriots. Pissed off patriots[.] Like the Sons of Liberty were pissed off patriots[.]” Codefendant Joshua James followed with, “Were coming to Capitol ETA 30 MIN[.]”

The Sixth Superseding indictment alleges that at 2:14 p.m. on January 6, Person Ten informed the “DC OP: Jan 6 21” Signal chat that “The[y] have taken ground at the capital,” and, “We need to regroup any members who are not on mission[.]” ECF 513 ¶ 125. At 3:05 p.m.— twenty minutes after Defendant Harrelson and other codefendants breached the Capitol, and ten minutes before Defendant James and his second wave of coconspirators breached the same doors—Person Ten also messaged another individual, “Were [sic] storming the capital.”

So something had to have happened with Simmons, with a cooperation deal a likely explanation. That’s why I’m interested in a few details laid out in the sedition indictment.

The main QRF for the people charged in the sedition indictment was (as I never tire of saying) in the Ballston Comfort Inn. Here’s what these guys looked like toting their gun cases around on luggage carts on the surveillance footage.

But before Kelly Meggs and Thomas Caldwell and others settled on the Ballston Comfort Inn for the QRF, Rhodes offered to store weapons for Meggs in the trunk of Simmons’ car.

50. On January 2, 2021, RHODES messaged MEGGS on Signal, “If you want to stow weapons with [the operation leader] you can. He’ll have a secure car trunk or his hotel room (or mine).” MEGGS responded, “Last night call … we discussed a QRF RP so we may do that. As well as the NC team has a hotel room close by.” RHODES messaged, “Ok, We WILL have a QRF. this situation calls for it.” [my emphasis]

The sedition indictment seems to describe Joshua James dropping off weapons at the Hilton Garden Inn in Vienna, VA.

68. On January 5, 2021, JAMES dropped off firearms and ammunition that he, ULRICH, and other co-conspirators had transported to the Hilton Garden Inn in Vienna, Virginia, where RHODES, JAMES, MINUTA, and others were staying.

One of the “others” staying at the Hilton Garden Inn referred to in this paragraph, the earlier indictment makes clear, was Simmons.

On January 4,2021, PERSON TEN checked into the Hilton Garden Inn in Vienna, Virginia. The room was reserved and paid for using a credit card in PERSON ONE’s name.

Anyway, it’s not entirely clear whether that paragraph 68 means that James dropped off weapons he had driven to Vienna at the Comfort Inn, or whether he brought those weapons to the Hilton Garden Inn and they stayed there. It’s worth noting, though, that by leaving Grods out of the sedition indictment, DOJ left out this paragraph from earlier indictments.

On January 2, 2021, Grods messaged JAMES on Signal and asked, “So, I guess I am taking full gear less weapons? Just reading through all the posts. Would rather have it and not need it.” JAMES responded, “Yeah full gear… QRF will have weapons Just leave em home.”

That is, by leaving Grods out, DOJ got to leave out some details about the fate of James’ weapons, too.

And while the sedition indictment has a ton of new details about Rhodes serially arming himself as he drove to insurrection…

On January 3, 2021, RHODES departed Granbury, Texas, and began traveling to the Washington, D.C., metropolitan area. While traveling, RHODES spent approximately $6,000 in Texas on an AR-platform rifle and firearms equipment, including sights, mounts, triggers, slings, and additional firearms attachments.

[snip]

On January 4, 2021, while still traveling toward the Washington, D.C., metropolitan area, RHODES spent approximately $4,500 in Mississippi on firearms equipment, including sights, mounts, an optic plate, a magazine, and various firearms parts.

… The sedition indictment provides not one detail of where Stewie’s personal arsenal ended up once he got to VA. It doesn’t say he kept all those weapons at the Hilton Garden Inn in Vienna. It doesn’t say the weapons got moved to the Comfort Inn in Ballston.

The sedition indictment does, however, explain that Rhodes and Simmons drove to DC together the morning of insurrection.

At approximately 8:30 a.m., RHODES and the operation leader, and others departed a hotel in Virginia for Washington, D.C., and drove to the Capitol area.

So Rhodes and Simmons traveled to DC in something that had a trunk, like the one days earlier where, Rhodes said, Meggs could stash his weapons.

And I find that interesting because Rhodes and Simmons weren’t together when the insurrection kicked off. Earlier indictments make clear that Rhodes was trying to meet up with Simmons as everyone started converging on the Capitol.

At 2:06 p.m, PERSON ONE sent another message to the Leadership Signal Chat asking for PERSON TEN’s location before stating, “I’m trying to get to you.”

And in fact, Rhodes kept trying to get people to come to the south side of the Capitol, even though all the action was happening north of there.

At 2:25 p.m. PERSON ONE forwarded PERSON TEN’s message (“The have taken ground at the capital[.] We need to regroup any members who are not on mission.”) to the Leadership Signal Chat and instructed: “Come to South Side of Capitol on steps” and then sent a ‘photograph showing the southeast side of the Capitol.

Rhodes’ 2:06 text got cut from the sedition indictment, though his 2:25 one made the cut.

At 2:32, as the Stack was assembling outside the East steps of the Capitol, Kelly Meggs called Rhodes and got conferenced into an already existing call with Simmons.

At 2:32 p.m., MEGGS places a phone call to RHODES, who was already on the phone with the operation leader. RHODES conferenced MEGGS into the call.

Minutes later, after Kelly Meggs and the first stack busted into the Capitol, and Meggs walked towards the office of Pelosi (whom he threatened to kill on election day) with Joseph Hackett and others, Hackett came back out to the entrance as if he was trying to meet up with someone, only to give up and leave.

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.

Neither Rhodes nor Simmons entered the Capitol.

To be clear: we have no idea what happened to Simmons and it’s not clear whom Hackett was looking for as Kelly Meggs attempted to hunt down Nancy Pelosi.

But I think it distinctly possible that Simmons drove Stewie’s weapons into DC. Which — particularly if there were a plot to assassinate Nancy Pelosi — would increase Simmons’ exposure significantly.

Update: I just re-read Mike Simmons’ 302s. And he claims that he parked by the Jefferson Memorial.

That’s the location of the “sea” landing point for the QRF teams.

On the evening of January 2, 2021, at about 5:43 p.m., KELLY MEGGS posted a map of Washington, D.C. in the Leadership Signal Chat, along with the message, “1 if by land] North side of Lincoln Memorial[,] 2 if by sea[,] Corner of west basin and Ohio is a water transport landing 11” KELLY MEGGS continued, “QRF rally points[.] Water of the bridges get closed.”

BREAKING (WaPo’s Stenography): Prosecutors Are Asking about Rudy Giuliani’s Ties to Militias

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The WaPo has published their second piece in a row that does embarrassing transcription work for Trump flunkies claiming they’re not under investigation for January 6.

I tweeted about the latest admission that four journalists from WaPo know fuckall about the actual investigation (or that into Rudy at SDNY) here. I tweeted about how alarming it was that people who called themselves journalists wouldn’t disclose that Jonathon Turley was the Former President’s impeachment lawyer here.

As I noted, apparently none of the four WaPo journalists are familiar enough with the investigation to know where to look to test their questions about whether DOJ is investigating Trump. But I guess it’s a good thing that WaPo relied on the expertise of their embedded Mar-A-Lago journalist (!!!) for these issues.

Nevertheless, WaPo does break news in the thirtieth paragraph of the story. It reveals that Rob Jenkins, a lawyer representing a bunch of militia defendants, keeps getting asked about Roger Stone and Rudy Giuliani‘s ties to militia members.

Rob Jenkins, a defense attorney representing multiple people linked to the Oath Keepers and Proud Boys, another far-right group, said prosecutors have been “pretty aggressive” in “seeking out information … that points to others’ involvement and culpability.”

They are interested, he said, in “preplanning, and participation in those preplanning on the part of the individuals who may not have come to D.C. on Jan 6 but were certainly part of the planned effort.” That includes both leaders in the groups and people who spoke at the rally on Jan. 6, including close Trump allies Rudy Giuliani and Roger Stone, he said.

“There was a lot of talk,” Jenkins said. “But I haven’t seen anything that would make them criminally liable.” [my emphasis]

Jenkins serves as sponsor for out of district lawyers, so it’s hard to measure who he’s representing personally. But among others, he shows as an attorney of record for:

Joshua Pruitt, a Proud Boy who just got his bail revoked

William Pepe, alleged to be member of the Proud Boy Front Door conspiracy

Christopher Worrell, a Proud Boy accused of spraying cops with toxins

Paul Rae, a Proud Boy who accompanied Joe Biggs everywhere on the day of the insurrection

Ryan Samsel, who — after he had some words with Joe Biggs — kicked off the entire riot

In other words, what the WaPo reported — in paragraph 30 — is that prosecutors believe not just the Former President’s rat-fucker, who has long paraded his ties to militias like the Proud Boys and Oath Keepers, but also the Former President’s personal lawyer, might have ties to the people who played key tactical roles in the insurrection.

That’s not a surprise. Rudy tweeted proof of that exactly a year ago.

But for some reason, the WaPo decided to bury the fact that prosecutors are pursuing this angle (even while claiming — Rudy’s phones notwithstanding — that prosecutors are not investigating what went down at the Willard), in paragraph 30.

In an article asking whether prosecutors are investigating Trump, the Washington Post buried evidence that prosecutors believe Rudy has ties to the militias who organized the event in paragraph 30.

One might think it newsworthy that an attorney for the Proud Boys revealed that prosecutors are, in fact, investigating Rudy’s militia ties. But the WaPo took from that, instead, that DOJ is not investigating Trump or anyone who might have been coordinating with the militias from the Willard Hotel.

January 6 Deconfliction: “This Is Part of a Much Bigger Conspiracy”

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In a Detroit Free Press article on the forged electoral certificate presented from Michigan, the state’s awesome Attorney General Dana Nessel explained why, after investigating for almost a year, she is now referring the matter to the Grand Rapids US Attorney’s Office.

Nessel told Maddow that her office has been evaluating charges for almost a year but decided Thursday to refer the matter to the U.S. Attorney’s Office for the Western District of Michigan.

“We think this is a matter that is best investigated and potentially prosecuted by the feds,” Nessel said.

The signatories of the failed attempt to award Michigan’s Electoral College votes to Trump include Michigan GOP co-chair Meshawn Maddock, national Republican committeewoman Kathy Berden and Michigan GOP grassroots vice chair Marian Sheridan, among other pro-Trump activists in the party.

The decision does not preclude possible charges against the Republicans who falsely claimed that they cast Michigan’s Electoral College votes for Trump, Nessel said. And her office might still bring charges, she added.

“Under state law, I think clearly you have forgery of a public record, which is a 14-year offense and election law forgery, which is a five-year offense,” Nessel said.

“But, obviously, this is part of a much bigger conspiracy and our hope is that the federal authorities and the Department of Justice and United States Attorney General Merrick Garland will take this in coordination with all the other information they’ve received and make an evaluation as to what charges these individuals might (face),” she said.

Consider what happened to lead to this federal criminal referral. After electors sent fake certifications to the National Archives, NARA then sent them to Michigan Secretary of State Jocelyn Benson and Arizona Secretary of State Katie Hobbs.

Vice President Mike Pence the winners of both Michigan and Arizona and their electors after the 2020 election. Public records requests show the secretaries of state for those states sent those certificates to the Jan. 6 panel, along with correspondence between the National Archives and state officials about the documents.

Spokespeople for the Michigan and Arizona secretaries of state declined to comment on the documents. The offices confirmed that Michigan Secretary of State Jocelyn Benson and Arizona Secretary of State Katie Hobbs, both Democrats, and their staff met with the panel in November.

“They mostly discussed election administration in Arizona, the 2020 elections, threats/harassment directed toward the office, and the Cyber Ninja’s partisan ballot review,” said Hobbs’ spokesperson C. Murphy Hebert.

Benson and her staff took questions from the committee on the 2020 election and events leading up to the Jan. 6 riot, according to Tracy Wimmer, a spokesperson for Benson.

The National Archives sent emails to the Arizona secretary of state on Dec. 11, 2020, passing along the forged certificates “for your awareness” and informing the state officials the Archives would not accept them.

Arizona then took legal action against at least one of the groups who sent in the fake documents, sending a cease and desist letter to a pro-Trump “sovereign citizen” group telling them to stop using the state seal and referring the matter to the state attorney general.

“By affixing the state seal to documents containing false and misleading information about the results of Arizona’s November 3, 2020 General Election, you undermine the confidence in our democratic institutions,” Hobbs wrote to one of the pro-Trump groups.

Arizona took immediate action; given Nessel’s comments, Benson appears to have referred the matter to Nessel. Some of these details were made public last March after American Oversight obtained them. But after the January 6 Committee put them all in context and focused renewed attention to how the fake certificates fit into a larger effort, it led Nessel to hold off on pursuing potential 14-year charges against some of the most powerful Republicans in the state, and instead to formally refer the investigation to the Feds, based on the logic that the obviously coordinated effort to forge fake electoral certificates is part of a larger whole.

This is not dissimilar from how legal action from Florida’s charity regulator led to state action as well as a grand jury investigation into Sidney Powell’s grifting.

For months, a federal investigation running out of Washington, D.C., has been demanding documents and asking potential witnesses questions about Powell, according to three people familiar with the matter. Similarly, a separate investigation into Powell’s anti-democratic activities took place in the Sunshine State earlier this year—and has already produced results, and punished Powell and her far-right group.

The federal probe, which has not been previously reported, is examining the finances of Defending the Republic, an organization founded by Powell to fund her “Kraken” lawsuits to overturn the 2020 election, the sources said.According to two of the people familiar with the matter, a grand jury was empaneled, and subpoenas and documents requests have gone out to multiple individuals as recently as September.

Defending the Republic’s finances have already prompted an investigation and a settlement with Florida’s charity regulator. The group paid a $10,000 fine in September as part of a settlement agreement related to its solicitation of contributions and failure to register as a charitable organization in the state.

[snip]

Defending the Republic’s finances first attracted the scrutiny of regulators in Florida shortly after Powell founded the group in November 2020 when authorities received a complaint and subsequently issued a subpoena to internet hosting service GoDaddy for information about the group’s website.

In a June press conference, Florida Agriculture Commissioner Nikki Fried said Defending the Republic was “found to be soliciting contributions from the State of Florida or from persons within the State of Florida” on the internet “without having filed in the State of Florida” as a charitable organization.”

On Aug. 24, Defending the Republic paid a $10,000 fine as part of a settlement agreement with Florida authorities over its fundraising.

As part of that agreement, Powell’s group agreed to register as a charity in Florida and submitted a projected budget of over $7 million. The settlement agreement also required Defending the Republic to submit an audited financial statement for the group’s operations between December 2020 and July 2021 by Nov. 30, including a balance sheet and a list of expenses and revenue.

Meanwhile, Fulton County’s DA, Fani Willis, has been investigating Trump’s call to pressure Brad Raffensperger to cheat and will reportedly make a prosecutorial decision in the months ahead.

The prosecutor weighing whether Donald Trump and others committed crimes by trying to pressure Georgia officials to overturn Joe Biden’s presidential election victory said a decision on whether to bring charges could come as early as the first half of this year.

Fulton County District Attorney Fani Willis said in an interview with The Associated Press last week that her team is making solid progress, and she’s leaning toward asking for a special grand jury with subpoena power to aid the investigation.

“I believe in 2022 a decision will be made in that case,” Willis said. “I certainly think that in the first half of the year that decisions will be made.”

[snip]

Willis declined to speak about the specifics, but she confirmed that the investigation’s scope includes — but is not limited to — a Jan. 2, 2021, phone call between Trump and Georgia Secretary of State Brad Raffensperger, a November 2020 phone call between U.S. Sen. Lindsey Graham and Raffensperger, the abrupt resignation of the U.S. attorney in Atlanta on Jan. 4, 2021, and comments made during December 2020 Georgia legislative committee hearings on the election.

Regardless of what Willis decides, she can also refer actions to the Feds because it, like the forged electoral certifications, “is part of a much bigger conspiracy.”

The point is (besides that we should be grateful that Democrats elected a lot of smart, fearless women in recent years) that there are lots of moving parts to this “much bigger conspiracy.” And all those moving parts have, as an option, referring their investigative findings to DOJ to drop it into the “much bigger conspiracy.”

So during the year when DOJ has been laying what Merrick Garland called “the evidentiary foundation for more complex cases,” states and local authorities have been conducting investigations that can be joined to that evidentiary foundation.

These are all parts of a much bigger conspiracy.

All these moving parts require coordination, however, or “deconfliction,” both in an effort to maximize cross-fertilization between the investigations and to ensure no investigation screws up the criminal investigations that might lead to real consequences. While there has been no reporting on how this is being done at DOJ, we can be sure it is, not least because DOJ and the Committee are muddling through the Executive Privilege questions in tandem.

Robert Mueller, for example, had his own congressional liaison, and referrals from the Senate Intelligence Committee led directly to plea deals with Sam Patten and Michael Cohen that, in turn, led to information both (and in the latter case, Trump’s lawyers) had shielded from the Committees.

Adam Schiff, now a member on the Select Committee, knows well that Mueller also used a House Intelligence Committee interview with Roger Stone as a basis for an obstruction prosecution against Trump’s rat-fucker. While the details are less clear, I also suspect that Steve Bannon’s interviews with HPSCI served to tee up the fruitful grand jury appearance for him in January 2019 about which Stone is still furious.

Liz Cheney brings a different knowledge base to the challenge of deconfliction. Her dad played a central role in screwing up the Special Prosecutor investigation into Iran-Contra by offering key witnesses immunity. He’s one reason why congressional committees hoping to preserve criminal investigations tread carefully. Hopefully, Congresswoman Cheney can apply lessons learned from her evil genius father to the forces of good on the Select Committee. She has the most to lose if this Committee doesn’t succeed.

As noted above, the most visible sign of this deconfliction has come on privilege reviews. In July, at the same time that DOJ established their contact policy fire-walling President Biden from learning about any ongoing investigations, DOJ got privilege waivers for former DOJ personnel to appear before Congress. After that, when the Select Committee, as an independent branch of government that is also fire-walled from the criminal investigation, asked for investigative materials from the Archives, Biden conducted privilege reviews of that material and waived privilege over much, but not all, of it. If and when that material is released, however, it would be available to anyone with a need, including DOJ.

In fact, the back and forth between the Committee and DOJ has likely already made investigative materials available to DOJ. That’s because, after the Select Committee made it clear Mark Meadows had violated the Presidential Records Act with regards to some of the materials he shared with the committee, Meadows undertook efforts to fix that. To the extent he is able to provide his personal emails and Signal texts to NARA (some of the latter are likely are unavailable), that material would become available to DOJ without subpoenaing Meadows. And to the extent this process reveals that materials of investigative interest to a grand jury were deleted when Meadows obtained a new phone, it will give DOJ reason to use legal process to either hold Meadows accountable for obstruction, or reason to get it from others, like Jim Jordan. To say nothing of the fact that Meadows can’t prevent DOJ from subpoenaing the call records that led him to renege on efforts to cooperate with the January 6 Committee. That’s why I doubt DOJ will hold Meadows in criminal contempt, because they would be better served to get that information — and coerce cooperation, if he chooses that route — via their own legal process. Effectively, then, Bennie Thompson wrote a rough draft of a warrant affidavit for the FBI.

It’s in the subpoenas for witnesses, however, that I’m most curious about with regards to deconfliction between the DOJ and Select Committee investigation. Consider: There are two Trump associates who were key in sowing the Big Lie, Rudy Giuliani and Sidney Powell, who are known to be under criminal investigation right now. That’s a topic the Select Committee is focusing closely on. But in spite of the fact that Bennie Thompson has expressed an interest in interviewing Rudy, thus far Thompson remains coy about how he’ll reach out to get Rudy’s testimony. There has been no public mention of getting Powell’s testimony or, for that matter, Lin Wood or Patrick Byrne, who — based on public reports — are part of that grifting investigation as well (and Byrne would be interesting of his own accord because he was honey-potted by a Russian spy). And for that matter, at least by the time he sued the committee, Mike Flynn’s call records hadn’t been subpoenaed either.

I’m equally interested in the timing of the Stewart Rhodes subpoena: November 23. That was after DOJ obtained an arrest warrant for James Beeks, the last member of The Stack, on November 18, but the day before they arrested him. By that point (probably long before), DOJ had to have known they were going to pursue sedition charges against him. But for some reason, they held off on the sedition charges when they superseded the Oath Keepers indictment on December 1 (before they otherwise would have needed to charge Beeks) to include him and tweak the Civil Disorder language in the indictment. There may be very good reasons they needed to wait: They needed to find Rhodes; they needed to finish exploiting his phone; they needed to resolve how they were going to treat the field commander, Mike Simmons, whose status in the investigation changed pretty dramatically between the December indictment and the Sedition one. But in that period while they held off, the Select Committee tested whether Rhodes wanted to go lie under oath to Congress. He declined.

It was worth a shot!

I find it equally curious that the Select Committee chose to target colleagues who played a more ambivalent role in the insurrection on January 6, rather than people like Paul Gosar or Mo Brooks, who have clear ties to organizers and other insurrectionists.

Similarly, I share Justin Hendrix’s curiosity why — especially in the wake of his article showing that The Donald isn’t being used in FBI affidavits — the Select Committee isn’t pursuing the role of the post-Reddit social media site in the insurrection, even while they expand their prior requests on more traditional social media.

In short, DOJ and the Select Committee are necessarily deconflicting their efforts, even if the Committee remains fire-walled from what DOJ has planned in the weeks ahead. But understanding that raises interesting questions about the Select Committee choices.

These pieces are all parts of a much bigger conspiracy. And until we see all those pieces we won’t see how they all work together.

But there are increasing signs that others are putting those pieces together.

Update: On January 18, the committee subpoenaed Rudy, Sidney Powell, and two others.

Update: On January 28, J6 subpoenaed the fake electors.

Select Committee Witness Requests

One Man’s Flourish Is Another Man’s Seditious Conspiracy: DOJ’s Typo and the Brandon Straka Plea Deal

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The government released their sentencing memo for Brandon Straka yesterday. It confirms that the propagandist got a ridiculously light plea deal because he “cooperated” with the government. But, particularly because of what must be a typo in the government filing, it raises more questions about the fairness of the prosecution for the first purveyor of the Big Lie to be sentenced in January 6 than it provides answers.

As I’ve laid out repeatedly, Straka was a speaker on January 5 and was slated to speak again on January 6 at one of the rallies that provided the excuse to bring more bodies to the Capitol. He also played a central role in riling up a mob at Michigan’s vote count at TCF Center in November 2020. In other words, he was instrumental in the effort to sow violence by leading people to believe false claims about the election.

As described in the sentencing memo, that’s precisely what Straka did at the East side of the Capitol, too.

Straka pleaded guilty to one count of 40 U.S.C. § 5104(e)(2)(D), Disorderly Conduct in the Capitol Grounds. As explained herein, a four-month home detention sentence is appropriate in this case because: (1) the defendant has a significant public profile, which he utilized to promote his activity on January 6, (2) the defendant learned of the breach of the U.S. Capitol Building and went to join the rioters; (3) upon arriving at the U.S. Capitol, the defendant encouraged others to  storm the U.S. Capitol; (4) the defendant recorded video of the rioters entering the U.S. Capitol; (5) the defendant encouraged rioters to take an officer’s protective shield from the officer’s possession, and (6) the defendant took to social media and encouraged rioters who remained at the U.S. Capitol to “hold the line” even after he had left Capitol grounds on January 6.

[snip]

Here, Straka’s participation in a riot that actually succeeded in halting the Congressional certification combined with his celebration and endorsement of the unauthorized entry of the U.S. Capitol and violent conduct of the rioters to his hundreds of thousands of followers, his act of encouraging rioters to take a U.S. Capitol Police officer’s shield, and the need for deterrence renders a four-month home detention sentence both necessary and appropriate in this case.

Straka was originally charged with civil disorder and trespassing, but not the obstruction of the vote count that he was clearly part of. In October, he got a plea deal to plead only to the lesser of the two trespassing statutes, eliminating a felony civil disorder charge. As I previously noted, his plea agreement included the standard cooperation paragraph that usually suggests someone has not yet cooperated.

But DOJ, in their sentencing memo, claims he did, and even included a sealed filing describing the substance of the cooperation, as they would in support of a 5.1K letter that more formalized cooperators get.

7 The government will supplement this filing with a sealed addendum that will provide this Court with information related to Brandon Straka’s interviews.

But even the memo’s description of Straka’s initial “cooperative” interviews, the ones he did before getting that sweet plea deal, make it clear that, at least at the beginning, he was bullshitting them.

Straka was arrested on January 25, 2021. Straka voluntarily agreed to be interviewed by FBI. Straka’s initial interview occurred on February 17, 2021. Straka recounted what occurred on January 6. Straka denied seeing any police officers as he walked to the U.S. Capitol. He also denied seeing any barriers or signage indicating that the U.S. Capitol was closed. Straka denied removing the posts out of fear of getting arrested. Instead, he explained that he removed the videos because he felt “ashamed.” He denied knowing that people were “attacking, hurting, and killing people.”

Straka described seeing people “clustered” and “packed in” near the entrance to the U.S. Capitol. He admitted to video recording the event and later posting and removing the videos from Twitter. He also admitted knowing that the rioters were entering the U.S. Capitol without authorization and with the intent to interfere with Congress. Straka provided additional information to the FBI regarding the events leading up to and during January 6. After this initial interview, the FBI met with Straka a second time on March 25, 2021 with follow-up questions. Straka was cooperative during the interviews.

Indeed, later parts of the memorandum debunk claims Straka made in that interview, completely undermining the description of these as cooperative interviews.

Straka stood at the entrance of the East Rotunda Doors as rioters attempted to enter despite the presence of officers near the door. Alarms from inside the U.S. Capitol can be heard in the background as Straka approaches the doorway’s entrance: a loud, high-pitched, continuous beeping, similar to a smoke alarm. If Straka was unaware that his and the rioters’ presence was not authorized, he should have known it when he heard the sound of the alarms. Additionally, as Straka approached the doorway, he was met by the smell of tear gas that had been deployed by officers inside of the U.S. Capitol.

The memorandum also clearly shows that any remorse Straka has expressed was self-serving.

Straka has indicated that his decision to attend the U.S. Capitol breach was “stupid and a tragic decision.” In his interview with FBI, Straka stated that he did not know that violence and death would occur that day. He then expressed shame for participating in the event. Yet, it is worth pointing out that Straka believes that “the consequences for his actions this far have been quite extreme and disproportionate given his involvement.” Straka also believes that he is misunderstood. He has also expressed concern about how his business has been affected. ECF 28 ¶¶ 23-25. These statements indicate that Straka does not understand the gravamen of his conduct and that of the rioters on January 6.

And the memorandum obscures the chronology of Straka’s actions from the day and relies on his word for at least one key detail which the FBI could have (and did, for other insurrectionists) confirmed via more investigation. Straka went to Trump’s speech at the Ellipse. Videos show that he left the speech with Mike Flynn just as the speech was ending, walking unimpeded through the VIP section. Straka claims he took the Metro to the Capitol and arrived between 2 and 2:20, which given that everybody else was walking, is likely only possible if he killed a half hour somewhere before hopping the Metro, presumably getting on at Metro Center or Federal Triangle and getting off at Capitol South. That detail is critical, because it’s how Straka sustains a claim that:

  • He only learned of the assault on the Capitol as he was already traveling over there and not before
  • He arrived at the Capitol between the time he learned of the assault and when his speech was canceled (2:00 to 2:20)
  • He learned his speech was canceled at 2:33

Here’s how it looks in the sentencing memorandum, separated by several pages.

The next day, January 6, 2021, Straka attended the “Rally to Save America” on the White House Ellipse and then planned to travel to an area near the U.S. Capitol Building where he was going to give another speech. See ECF 1, p. 2 at ¶ 3 Straka used the Metro to travel to the U.S. Capitol. Id. While traveling to the U.S. Capitol, he received alerts on his telephone stating that former Vice President Mike Pence was “not going to object to certifying Joe Biden.” Id. Straka continued to make his way to the U.S. Capitol. Id. While walking, Straka learned that the U.S. Capitol had been breached. Id. Straka estimated that he got off of the Metro sometime between 2:00 p.m. and 2:20 p.m. before making his way to the U.S. Capitol grounds. See ECF 28, at ¶ 18.

[snip]

At 2:33 pm on January 6, 2021, Michael Coudrey, the national coordinator for Stop the Steal, sent a message to a group chat telling those in the chat that the event that Straka was scheduled to speak at would be delayed because “They stormed the capital[sic].” Joshua Kaplan and Joaquin Sapien, New Details Suggest Sernior Trump Aides Knew Jan. 6 Rally Could Get Chaotic, ProPublica (June 25, 2021) available at https://www.propublica.org/article
/new-detailssuggest-senior-trump-aides-knew-jan-6-rally-could-get-chaotic (last visited December 16, 2021). Straka responded, “I just got gassed! Never felt so fucking alive in my life!!!” Id. Later, as law enforcement was still working to clear rioters from Capitol grounds, Straka encouraged them to continue fighting:

It’s still totally inexplicable. Even if Straka didn’t have knowledge he was traveling into an active riot in advance (a really sketchy claim), he still marched right up the steps of the East side of the Capitol encouraging violent entry, and then stuck around for hours encouraging rioters to keep going. DOJ could have checked the timing of his story by — as they did with other Jan 6 defendants — checking for Metro card purchases, swipes, or surveillance video in the Metro. Instead, they seem to have taken his word for the chronology.

Thus far, then, it looks like Straka successfully bullshitted DOJ for a sweet plea deal.

That treatment is all the more problematic given the discomfort regarding Straka’s incitement in different places in the sentencing memo. In describing his January 5 speech at the Stop the Steal rally, DOJ dismissed his call to “revolution” as “flourishes.”

During his five-minute long speech, Straka again used common rhetorical flourishes, referring to the rally attendees as “patriots,” and referenced a “revolution” multiple times. Id. at 32:27-37:18 Straka directed the attendees to “fight back.” Id.

But in the sentencing memo, DOJ called the same kind of speech on social media before that, often on key days in the developing conspiracy, speech that “could reasonably have been interpreted by some readers as a call for more than just a figurative struggle.”

Following the election, Straka stoked the passions of his followers, frequently telling the “Patriots” that it was time to “rise up” as part of a “civil war.” Many of these messages contain rhetorical flourishes that are common in political speech. However, some of Straka’s references to concrete planning and action could reasonably have been interpreted by some readers as a call for more than just a figurative struggle. In early December 2020, Straka sent out messages informing them that they “could not allow” a presidential transition and encouraging his followers to prepare for a civil war

That is, DOJ admits in its sentencing memo that Straka was stoking violence during the entire transition period.

Thus it happened that, on the very same day DOJ rolled out a seditious conspiracy indictment against Stewart Rhodes for, in part, warning on November 5, “we aren’t getting through this without a civil war,” and then warning on December 11 that if Joe Biden were to assume the Presidency, “it will be a bloody and desperate fight,” DOJ made a case that a guy who, in the same weeks, was also calling for civil war, should get just home confinement.

To be sure, there’s no evidence Straka engaged in military training or purchased weapons. But if Stewie’s incitement counts as sedition, then surely Straka’s counts as obstruction of the peaceful transfer of power.

Which brings us back to DOJ’s claims about Straka’s cooperation and that sealed addendum. According to the memo, as written, Straka had three interviews: one on February 17, 2021, another on March 25, 2021, and a third on — it claims — January 5, 2022.

On January 5, 2022, Straka met with prosecutors from the United States Attorney’s Office and the FBI a third time. The purpose of the interview was for the government to ask Straka follo-up [sic] questions. Consistent with his previous interviews, Straka was cooperative. The interviews were conducted in anticipation of the plea agreement that defendant would later enter.7

Except that makes no sense. He signed his statement of offense on September 14, 2021 and pled guilty in October. A January 5, 2022 interview couldn’t have “anticipat[ed] the plea agreement” he entered three months earlier. [Update: I’ve gotten clarification that the reference “the interviews” was meant to refer to the series of interviews. It still doesn’t make sense, but may reflect a late-date addition without correction of the antecedent.]

Moreover, DOJ offers no public explanation for details in this motion for a continuance, which the government attempted to seal after the fact, an attempt Judge Dabney Friedrich refused. It reveals that Straka told the government something new in December, and also that something unexpected came up in the Presentence report.

On December 8, 2021, the defendant provided counsel for the government with information that may impact the government’s sentencing recommendation. Additionally, the government is requesting additional time to investigate information provided in the Final PreSentence Report. Because the government’s sentencing recommendation may be impacted based on the newly discovered information, the government and defendant request a 30-day continuance of this case so that the information can be properly evaluated.

Given the timing of that continuance, it might explain a third meeting with Straka on January 5 — nine days ago. But that would suggest that the information wasn’t provided before Straka got this sweet plea deal.

There are any of a number of things going on. Perhaps it’s true that Straka provided useful information early in the investigation and in consideration for that got a sweet plea deal, as happened with Jacob Riles. Perhaps it’s true that Straka was more honest in those early interviews than portrayed in this memorandum.

Or, as seems more likely given the record and the rhetorical contortions AUSA Brittany Reed made in this sentencing memo, FBI let Straka bullshit them and based on that, he scored a ridiculous plea deal, and only after that, his presentence report disclosed things that FBI should have found last spring.

It may be that the belated discovery in December, in the end, makes the plea deal worth it. If Straka is willing to share honest details of how months of incitement led up to that attempted breach on the East steps; if Straka has provided details of what Mike Flynn was up to after Trump’s speech; if Straka belatedly confessed that there was a concerted plan to converge on the top of the East steps, then Straka’s preferential treatment may be worth it.

But DOJ really needs to provide more transparency on what went down, one that doesn’t include an obvious typo obscuring the timeline. If Paul Hodgkins has to serve eight months for obstruction because he wandered onto the Senate of floor and Jenny Cudd only got to plead from obstruction down to the more serious trespassing charge because she repeated the calls for civil war that people like Straka were making on January 5, then equity demands a far better explanation for Straka’s preferential treatment here.

As noted, Straka’s is the first sentencing for one of the organizer-inciters who will need to be held to account if DOJ wants to really pursue the people who master-minded this insurrection. If FBI screwed up (or tried to protect Straka), then DOJ needs to come clean on that and make it clear how they’ll avoid such problems in the future.

Presenting two inexplicable timelines is not the way to do that.

Update: Fixed reference to presentence report. And included clarification regarding “typo.”

The First Seditious Conspiracy Charges Drop

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The government arrested Stewart Rhodes today and charged him with other Oath Keepers in a seditious conspiracy indictment. Effectively, this charges everyone who conspired — including by participating in the planning — to bring weapons to Virginia on January 6 (and spins the other Oath Keepers off onto their own indictment). The charges effectively incorporate the material from this post on the Quick Reaction Force and this post on discussion of an insurrection after January 6, with additional details on Rhodes and Edward Vallejo, the guy who organized the QRF.

The charges are, at once, no big deal, because they’re really just the same conspiracy charged in a different way with two conspiracies added. They’re a huge deal, because now Republicans will be hard pressed to continue to downplay January 6. And they’re a solution to some problems and a tool to move on.

First consider the problems DOJ was trying to solve:

  • How to split up an unwieldy 17-person conspiracy into two trials?
  • How to charge Stewart Rhodes (and Vallejo) for roles central to the conspiracy when they didn’t do anything like trespassing to make that easy?
  • How to backstop the sedition charges so white terrorists won’t go free?
  • How to add leverage to flip key witnesses to move beyond just the Oath Keepers?

Now consider how this works as a tool. For some reason, the government has moved Jonathan Walden to his own charges separately. And Mike Simmons, who in all earlier indictments was called “Person Ten,” here is just described as “operational leader,” which suggests he’s no longer treated as a co-conspirator, either.

Though Kenneth Harrelson released some of the key communications from the Willard Hotel from earlier in the day, those still don’t show up in this indictment. So the government is remaining coy about what it knows about coordination with people at the Willard Hotel. That’s probably because it still needs others to flip — Joshua James would be ideal, but Roberto Minuta might be useful as well — to confirm whatever Mark Grods and Mike Simmons (if he is cooperating) were able to offer about it.

But they are making it clear that they know more about some communications they’ve been talking about for some time. Here’s my favorite.

I noted in April that this was probably a conference call. They seem to suggest they may know the content of it.

In addition, this indictment confirms that Kelly Meggs hunted Nancy Pelosi down (and that the rest of the stack went towards the Senate, as if hunting for Pence).

As mentioned, they’ve added a bunch of charges:

  • Added Seditious Conspiracy tied to Rhodes’ repeated efforts to arm and train for war
  • Swapped the 18 USC 371 conspiracy charge for a 18 USC 1512k conspiracy; as I’ve noted, that provides additional enhancements for threats of assassination and kidnapping, as this indictment inches closer to alleging
  • Added a conspiracy to prevent an officer from discharging any duty (18 USC 372)

What this does is raise the sentencing exposure for the co-conspirators from around 20 years to, with terrorism enhancements for the broken door, maybe 80. It backstops the sedition charges (with the original obstruction charge, but also with the 372 charge) so white terrorists won’t be able to beat the charges. It charges all the other efforts to obstruct this investigation.

But it’s the latter new charge I’m most interested in, even more than sedition:

If two or more persons in any State, Territory, Possession, or District conspire to prevent, by force, intimidation, or threat, any person from accepting or holding any office, trust, or place of confidence under the United States, or from discharging any duties thereof, or to induce by like means any officer of the United States to leave the place, where his duties as an officer are required to be performed, or to injure him in his person or property on account of his lawful discharge of the duties of his office, or while engaged in the lawful discharge thereof, or to injure his property so as to molest, interrupt, hinder, or impede him in the discharge of his official duties, each of such persons shall be fined under this title or imprisoned not more than six years, or both.

This is what Eric Swalwell has argued some of these same people did. But it is, more clearly, what Donald Trump did to Mike Pence.

This indictment will, presumably, impress all those who’ve been wailing the existing 20 year charges the Oath Keepers were facing were not adequate. But it may also clear a path to move up the chain.

Update: Correcting that Walden must be cooperating. I think that’s a misreading.

The Structure of the January 6 Assault: “I will settle with seeing [normies] smash some pigs to dust”

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Before 8AM on the morning of the insurrection, the Proud Boys had this discussion on their organizing Telegram thread.

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

Person-2: Would be epic

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

Person-2: We are the people

UCC-1: Fuck yea

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

Person-2: Fuck these commie traitors

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

UCC-1 has been reported to be Aaron Whallon-Wolkind, who cheered on the insurrection from Philadelphia and interacted with Zach Rehl and other Philly Proud Boys throughout the day. Persons 2 and 3 have not yet been publicly identified.

This discussion and others reveal a key part of the Proud Boy plan for January 6: to incite others — “normies” — to commit violence. And while a number of Proud Boys or close associates engaged in what I’ve called “tactical” violence that day, the vast majority of (and the worst) violence was done by others, mostly by people with either no known or just networking ties to militia groups (such as through anti-mask activism). The Proud Boys weren’t the only militia-linked people attempting to encourage others to engage in violence; it’s a key part of the anti-mask/3% conspiracy, for example. But a stated goal of at least some of the militia members who implemented the assault on the Capitol was to stoke others to engage in violence.

This detail is critical to understanding what DOJ has accomplished so far and where they might be headed. Many of those screeching that DOJ is not doing enough to investigate January 6 — like Elie Honig complaining that DOJ has arrested 700 indistinguishable “rioters” or Hussein Ibish claiming that “many foot soldiers” have “received mainly light prison sentences” but no “planners … have been held to account in any meaningful way” — seem not to understand it.

So I’d like to talk about what we know about the structure of the attack on the Capitol and how it related to things Trump and his minions were doing. Before I attempt to do that, let me rebut a straw man Honig and others have used in an attempt to ignore the facts I present. I share their alarm about the urgent need to respond to January 6 and Trump’s unlawfulness. I am not guaranteeing that Trump will be held accountable.

Where we differ is that I have read the public record on the investigation (and on other investigations that Honig, at least, has denied exist, like the investigation into Sidney Powell’s grifting).

It is not the case that all 700 people who have been arrested were mere “rioters,” — and calling some of these people rioters adopts the preferred label of those championing the coup. And unless you consider mere rioters “foot soldiers,” then very few witting foot soldiers have yet been sentenced. While it is true that no planners have been sentenced, it is also the case that DOJ has arrested some key ones, a small number of whom have been jailed since their arrest, and a great deal of DOJ’s overt investigative focus lies in arresting those who can illuminate how the organizers worked and how they coordinated with others.

Before I lay this out, keep in mind the three main theories of liability for Trump for January 6 (as opposed to his call to Brad Raffensperger, though as I’ve noted, the call to Raffensperger goes a long way to showing Trump’s corrupt mens rea on January 6). At first, people argued that Trump incited the mob. There were problems with that claim, which Trump’s defense lawyers successfully exploited during his second impeachment trial, most notably that the Proud Boys had already kicked off the assault on the Capitol before the former President finished speaking. Still, to prove he incited a riot, you’d need to prove that the people who rioted did so in response to his speech at the Ellipse. Then, after Liz Cheney raised it, TV lawyers discovered what I’ve been pointing out for months. Trump’s actions (and inaction) fit squarely within the application of obstruction of the vote count that DOJ applied from the start. Finally, last week, Congress watchers discovered that Trump might actually have entered a conspiracy to obstruct the vote count, “involv[ing] coordination between the ‘political elements’ of the White House plan communicated to Republican lawmakers and extremist groups that stormed the Capitol” — again, consistent with what I’ve laid out for months. That, though, would require mapping out how the various parties entered into agreements and how they communicated and coordinated (with conspiracy members as well as Congress and the mobsters). That’s why I keep pointing to the structure of the existing conspiracy charges: because what Trump did exactly mirrors the overt acts already charged, from getting bodies to DC, ensuring they get to the Capitol, and encouraging means to overtake it.

It’s all one networked conspiracy. Indeed, the judge presiding over the Oath Keeper conspiracy case, Amit Mehta, observed in the Trump lawsuit hearing the other day that there was evidence that militia conspired with the Proud Boys.

Which, if DOJ could ever prove that those Trump entered into an agreement with, like Alex Jones, also entered into an agreement with Alex Jones’ former employee Joe Biggs, it would network Trump right into the conspiracies that rolled out at the Capitol, potentially putting him on the hook for the things those at the Capitol did, including damaging the building (which brings the terrorism enhancement), potentially some tactical assaults, and (if it gets charged), possibly even Kelly Meggs’ effort to hunt down Nancy Pelosi.

That may not be your preferred model of to hold Trump accountable, but I’m fairly certain that’s how DOJ would do so, in addition to whatever liability for him arises out of investigations into people like Sidney Powell or Rudy Giuliani.

What the evidence thus far shows is that Trump brought huge numbers of people to DC and convinced them that, to defend their country, they needed to march to the Capitol and pressure Congress, via one of a number of means, to not certify the election. Alex Jones and Ali Alexander then delivered these bodies to the Capitol, and once there, to a second breach on the East side. The Proud Boys, seemingly anticipating that this influx of “normies,” kicked off and carefully focused the riot just in time to create a real threat to Congress (and Mike Pence) just as they started to certify the vote count. (This Sedition Hunter timeline makes a compelling argument, one consistent with Proud Boy Matthew Greene’s statement of offense, that the Proud Boys paused their assault to wait for the mobs Alex Jones was bringing.)

The plan required six types of participants to make it work:

  • People (Trump, Rudy, and Mo Brooks) to rile up large numbers of normies
  • Someone (Alex Jones) to guide the normies to the Capitol, probably while communicating with the Proud Boys as they kicked off the riot
  • People at the Capitol (Proud Boys and associates) to tactically deploy the normies as a weapon, both to occupy the Capitol and to create a very real risk to the members of Congress
  • Members of Congress (Paul Gosar and others) willing to create conflict that could be exploited in any of a number of ways
  • Masses and masses of people who, starting even before the election, had been led to believe false claims that their country was under threat; those masses did two things:
    • Enter the Capitol, with a varied level of vocal enthusiasm for the mayhem occurring, and make it far more difficult for cops to put down the assault
    • “Smash some pigs to dust”

Had any of a number of things gone differently — had Ashli Babbitt not been shot and had the amped up Zach Alam chased just behind her through the Speaker’s Lobby door before members of Congress escaped; had Officer Eugene Goodman not done several things to prevent both Mitt Romney and Mike Pence from running into the mob; had counter-protestors come out in large numbers to create the excuse for street skirmishes made lethal by arsenals of weapons stashed nearby; had DOD delayed deployment of the Guard even further, allowing a planned second assault to take place — the coup might well have succeeded.

With that has background, let’s turn to the DOJ investigation thus far. Politico has done the best public accounting of sentences here (though I treat Zoe Tillman’s numbers, along with GWU’s, as canonical). As Politico shows, the vast majority of those who’ve been sentenced — and almost as significant a majority of those who’ve pled guilty so far — are trespassers.

The vast majority of people sentenced so far were MAGA tourists, lured to the Capitol by Trump’s speech and the momentum of the crowd. While a sizable number knew of plans to obstruct the vote certification in advance (and a significant number of people were permitted to plead down from obstruction), a bunch of them really did arrive for the speech and stay for the riot.

One example of that is Anthony Scirica, who followed the crowd to the Capitol and decided to enter the Capitol even though he heard a window breaking and alarms going off.

After listening to the speeches at the rally, SCIRICA, along with a group of individuals, walked to the U.S. Capitol from the West. 10. As SCIRICA approached the Capitol, he saw people on the steps and on the scaffolding outside of the Capitol. SCIRICA saw a large crowd in front of him, and he decided to push his way to the front to see what was happening. He watched as other individuals entered the Capitol. He decided that he want to see it for himself and see what was happening with his own eyes. He heard people yelling and shouting “U.S.A.” chants and “Stop the Steal.” He heard what he believed to be a window breaking. He also heard an alarm going off inside the Capitol. He decided to enter the Capitol any way.

Eliel Rosa went to DC as much for the anti-certification rallies as the Trump speech.

Eliel Rosa and Jenny Cudd traveled from Texas to Washington, D.C. to participate in “Stop the Steal” rallies or protests and to connect with other “Patriots.” Mr. Rosa and Ms. Cudd understood that on January 6, 2021, in Washington, D.C. at the United States Capitol, elected members of the United States House of Representatives and the United States Senate were meeting to certify the vote count of the Electoral College of the 2020 Presidential Election, which had taken place on November 3, 2020.

But even still, he attributed his trespassing to being swept up in “mob rule.”

Rosa blamed himself for his unauthorized entry into the U.S. Capitol and stated that he was caught up in “mob rule” at the time.

Kevin Blakely, who traveled to DC with friends, made new friends while waiting for Trump’s speech to start and then joined in to experience history (a common theme among some defendants).

The defendant and three others stood in the Ellipse for more than four hours before the rally started and met with other attendees. After President Trump’s speech, the defendant joined others as they began to walk toward the U.S. Capitol Building. [Blakely] made a detour and returned to the Hyatt Regency, where he was staying during his visit to Washington, D.C. From his hotel room, the defendant watched the crowd as they gathered outside the Capitol Building nad sometime between 2:00 and 2:30 p.m., [Blakely] decided to “get closer and more fully experience this ‘once in a lifetime’ event.”

Even those who did go to the Capitol from Trump’s speech knew, from communications including Trump’s, that it would be a mob. Here’s what Blakely’s friend Paul Conover, who just recently pled guilty, said he was doing.

Prior to January 6, on or about December 24, 2020, defendant posted a message on social media that states in sum and substance: GOING TO WASHINGTON DC WITH BLAKEY [SIC] TO JOIN THE MOB JAN 5TH CMON JOIN US.

Conover appears to be one of the misdemeanants whose arrest DOJ prioritized because they took videos in key locations. After he busted through the East doors closely behind the Oath Keepers and Joe Biggs, Conover narrated as he took a video panning the Rotunda:

This is it, boys and girls. This is the Capitol. Apparently, there’s some crazy shit going on in the Senate today and the certification. They’ve had enough. Well, uh, here we are! Ha ha ha! I pray to god that nobody does any damage to the stuff in here, ’cause I’m not down with that. But I’m kind of, kind of proud of the people that stood up and said you know what? Enough.

The statement of offense for Stacie Getsinger, who described on Facebook going to the East steps because Alex Jones told a crowd that Trump would speak, offered few details, describing only that she “walked to onto U.S. Capitol grounds and up the stairs of the U.S. Capitol with others, including her husband John Getsinger. Once Getsinger got to the outside of the Rotunda North doors, she observed others engaged with law enforcement who tried to stop individuals from entering the U.S. Capitol building.”

Adam Johnson described how he went from hearing Mo Brooks call for violence to running towards the Capitol.

At the rally, JOHNSON listened to several speeches, including by former President Trump, Rudy Giuliani, and an unknown older member of Congress–the latter whom JOHNSON heard stating that it was time for action and violence. In response to these comments, JOHNSON saw members of the crowd nodding their heads in agreement.

Following these speeches, JOHNSON and. Person 1 began marching to the Capitol with the crowd. While marching, JOHNSON heard someone say “Pence didn’t do it.” JOHNSON also saw police running towards the Capitol and heard members of the crowd shout,”they broke into the Capitol!” JOHNSON and Person 1 started running towards the Capitol as well.

Others who came over from the Ellipse more explicitly discussed intimidating Congress. For example, here’s how Michael Stepakoff (who will be sentenced in coming days) narrated his approach to the Capitol.

So we’re marching up Pennsylvania Avenue to the Capitol building. The Senate and House of Representatives are in session . . . There’s nothing like the presence of at least a million Americans who are fed up and pissed off and are not going to stand for having our vote stolen because it’s the sacred right of our people to be able to vote for our president . . . so a million strong, at least a million standing outside the Capitol, storming the gates, so to speak, is going to make them think twice about what they are going to do today . . . God bless America.

While some people cheered the violence and a few got away with violence DOJ only discovered after their plea, the majority of the almost 200 people who’ve pled guilty so far did not engage in violence. With a few exceptions, below, these people weren’t wittingly part of the more organized plans to storm the Capitol. They were the bodies turned into an orchestrated mob, in part by Trump’s tweets and other social media advertising, and in part by those channeling the mob at the Capitol.

If you want to prove Trump incited the riot, you would need to collect these individual stories to prove it. That’s not the only reason DOJ has prosecuted these people, but it does provide evidence showing how people responded to Trump’s calls after he riled them up.

Some of the movement operatives wandered to the Capitol too

Among those who’ve been permitted to plead to misdemeanors, even some that I’d call “movement operatives,” wandered to the Capitol.

For example, right wing podcaster William Tryon, plausibly described following the crowd to the Capitol after Trump’s speech. Frank Scavo, a local PA politician who arranged busses for 200 people to travel to DC, tied his decision to walk to the Capitol to Pence’s decision to certify the vote; he’s one of the defendants sentenced to a longer sentence than the government requested.

There are a few exceptions. America Firster, Leonard Ridge, unsurprisingly seemed to know there’d be an attempt to shut down the vote count ahead of time, telling a friend, “I think we are going to try to block the session of congress” (he was one of the people permitted to plead down from obstruction to the more serious trespassing charge).

Two cases defy explanation. Micajah Jackson, a Proud Boy who denied a pre-January 6 affiliation and continued to attend Proud Boy events during pretrial release, mentioned nothing about that in his statement of offense. We might find out more about this in February, when Jackson is due to be sentenced.

The statement of offense for Brandon Straka, who is perhaps the senior-most inciter-organizer to plead guilty thus far, describes only that Straka took the metro directly to the Capitol, where he was scheduled to speak: “Knowing that Congress was in session to certify the election results at the U.S. Capitol and that Vice President Pence intended to certify the election, Straka got off the metro on January 6, 2021 sometime between 2 p.m. and 2:20 p.m.”

It’s not clear how these men were given misdemeanor pleas, when they were clearly part of an organized attempt to prevent the transfer of power. There’s no sign either man cooperated before entering their pleas, though Straka’s sentencing has been held up because, “the defendant provided counsel for the government with information that may impact the government’s sentencing recommendation.” If the current schedule holds, Straka’s sentencing memos will come in tomorrow and he’ll be sentenced next week.

That said, movement operatives like Jackson and Straka are, thus far, the minority among those moving towards sentencing. Most were part of a self-described mob.

About half the felony pleas charged people who wandered to the Capitol

Even two of the three people who’ve pled guilty to assault thus far showed up without any pre-conceived plan to attack the Capitol. Devlyn Thompson, in an unsuccessful bid to use his autism diagnosis to get lenient treatment, described that he went to the Capitol because believed Trump would give another speech, a lie that motivated a good number of mobsters.

When I was leaving, my intention was to listen to another speech at the capitol. I had gotten text messages. I got a text that there was a planned speech. There was supposed to be two speeches at the capitol. One from an Arizona legislator and one from Women for Trump. I thought Alex Jones would be there and Trump.

After getting riled up by clashes between cops and rioters in the earlier part of the assault, Thompson joined in the Tunnel assault, eventually using a baton to hit one of the officers trying to help John Anderson respond to respiratory distress.

Robert Palmer similarly described being lured to the Capitol by a false belief in Trump’s claims.

In Mr. Palmer’s warped mind, on the day in question, he was acting as a patriot and for the good of the nation. While his intent was misplaced and his actions inexcusable, he sincerely believed that he was acting as a patriot on the day in question. Unfortunately, that mindset, coupled with the crowd mob effect, saw an otherwise law-abiding and successful father and business owner assault Capitol police.

Palmer was at the Capitol for hours, cheering the violence, before he got sucked in and participated in it by throwing a series of things at cops.

Just Scott Fairlamb, who was sentenced for punching a cop, clearly knew shit was going to go down in advance. He RTed a Steve Bannon prediction that “All hell is going to break loose tomorrow,” and asked, “How far are you willing to go to defend our Constitution?” Those statements are one of the reasons why Fairlamb, uniquely thus far, pled to both obstruction and assault and, if not for some mitigating circumstances that came out at sentencing, might have faced a terrorism enhancement.

There are two straight obstruction defendants sentenced so far, Paul Hodgkins and Jacob Chansley. Like many of the trespassers, Hodgkins simply followed the crowd after Trump’s speech (he was charged with a felony because he made it to the Senate floor).

Just Chansley, then, turned a central role in the right wing movement — importantly, as a celebrity in QAnon — into a key role obstructing the vote count and threatening Pence. There’s far more to say about the success QAnon had in mobilizing bodies to where they could be the most useful (and the Podcast Finding Q revealed that FBI was investigating that in the weeks after the attack). But the operational model by which people like Chansley got to the Senate floor is different than for other MAGA tourists who were turned onsite.

There are more known cooperators than straight felony pleas

To a great degree, this entire exercise is misleading, which is why pat comments from people trying to dismiss the investigation are so misleading. There are a number of reasons the stats skew where they are now: Obviously, people will plead to a misdemeanor more quickly than a felony. Virtually all of those charged with obstruction have been waiting for judges to rule on challenges to that application, and as those people move towards pleading out (as they have started to do), it still will take some weeks to finalize pleas. One reason for that hold-up: DOJ is only now making the final bits of global discovery available, without which many attorneys, for due diligence reasons, will not advise taking a plea.

A more important reason claims about who has been sentenced are misleading is that there have been more felony cooperators than straight felony pleas thus far. With two people convicted for making threats, there have been seven people who pled to a felony sentenced. There are nine overt cooperators (and presumably more we don’t know about). And while two cooperators — Josiah Colt and Gina Bisignano — are cooperating against their own limited network of more serious defendants, cooperation deals like Colt’s structured under 18 USC 371 networks into any larger conspiracy, potentially putting conspirators on the hook for the assaults of his co-conspirators. The other cooperating witnesses, though, have provided information about how the planners who’ve been in custody for most of a year — Kelly Meggs and Kenneth Harrelson for the Oath Keepers, Joe Biggs and Ethan Nordean for the Proud Boys — and those who have not yet been arrested orchestrated the attack.

This was a fairly flat conspiracy, with Proud Boys on the scene implementing orders from Proud Boy leaders who are, themselves, just one degree from Donald Trump through people like Alex Jones and Roger Stone. In addition to the 17 plus four Oath Keepers charged in a conspiracy, there are several more Oath Keepers being prosecuted. In addition to the 16 Proud Boys plus one cooperator charged with conspiracy, there are a slew more arrested individually and in co-traveler groups (some of whom are at risk of being added to conspiracy charges once they’re formally charged) who can offer information about the funding for all this, what Proud Boy leaders were saying during the riot, and some key tactical organization. Some of the 3%ers charged so far networked with key right wing funders, January 5 speakers, and even Ted Cruz.

So yes, 700 people have been arrested so far, and half of those are normies whose non-violent presence was operationalized in a well-planned assault on the Capitol. Many of the 150 assault defendants were “normiecons [who] have no adrenaline control.” But 200 of the arrestees are accused of more witting participation in a plan to prevent the peaceful transfer of power and of those 100 have networked insight into how that worked. Those people haven’t been sentenced yet because discovery and legal challenges have delayed most from accepting plea offers.

The most chilling passage in any statement of offense, in my opinion, is Matthew Greene’s description of realizing — from his service in Afghanistan — the moment the mob turned into an insurrection.

Greene noticed that during and following the chanting, the mood in the crowd changed, and it reminded him of his time in Afghanistan while stationed there with the U.S. Army, when protests changed from peaceful to violent.

In the days and weeks after he recognized Americans turning insurgent in their own country, Greene returned home and started assembling a (seemingly illegal) arsenal and preparing for war.

He told another acquaintance in the days following the riot to be prepared to do uncomfortable things. He ordered over 2,000 rounds of assault-rifle ammunition and a gas mask. And he engaged in conversations with other Proud Boys on encrypted messaging platforms in which he stated a continuing desire to “take back our country” – in Greene’s own words, written in chat platforms post-January 6, “this is a 4th generation” war, and “we must stand together now or end up in the gulag separately.”

The effort to spark an insurrection at the Capitol was not one implemented by “foot solders,” but some highly trained veterans who were onsite, including an alarming number of Marines in most key tactical locations. And the network of people who stoked the normies to serve as useful bodies to this effort ties, via just one or two steps, right to Trump.

That’s the conspiracy DOJ has been investigating for a year.

Update: Took out detail that Straka was not at Ellipse. The key detail is he claims he took the Metro, didn’t walk.

A Look at Michigan’s “Alternate” Electors [UPDATE-1]

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[NB: check the byline, thanks. Update(s) will appear at the bottom of this post. /~Rayne]

David Waldman (a.k.a. @KagroX) made an interesting point on Twitter:

If you’re active in a political party this may seem obvious. Having been a party committee member and a delegate, I took for granted most folks would intuit this. A political party won’t have any Average Joe off the street attest to the party’s business; they’ll encourage and/or pick someone they trust who’s an insider.

And in the case of my home state, that’s exactly what happened. The MIGOP picked electors who are active in the party either on committees and/or public officials either elected or appointed.

Which means all these folks who signed the false certification attesting fraudulently to Trump’s win of a majority of Michigan’s votes are highly relevant to the party. They are:

Kathy Berden – Michigan Republican Party national committeewoman

Mayra Rodriguez – Wayne County Public Administrator, former MIGOP candidate for MI state house district 2, Michigan Republican Party 14th District chair for Grosse Pointe Farms

Meshawn Maddock – Co-Chair, Michigan Republican Party

John Haggard – Charlevoix County Republican chair

Kent Vanderwood – Wyoming City Council member

Marian Sheridan – Michigan Republican Party Grassroots vice chair

James Renner – Republican Delegate to County Convention (Watertown Twp, 2020) (replaced Gerald Wall)

Amy Facchinello – Grand Blanc Board of Education member, QAnon supporter

Rose Rook – Van Buren County Republican executive committee member

Hank Choate – Michigan Republican Party 7th District chair

Mari-Ann Henry – Greater Oakland Republican Club member

Clifford Frost – Michigan Republican Party State Committee and Macomb County Republican Party board member

Stanley Grot – Shelby Township Clerk, Michigan Republican Party 10th District chair

Timothy King – Washtenaw County Republican Party executive committee member, Michigan Republican Party 12th District committee member

Michele Lundgren – Wayne County Republican Party precinct delegate

Ken Thompson – TBD (replaced Terri Lynn Land, former MI Secretary of State)

These aren’t exotic fruit bats out in the far right-wing hinterlands; they’re the heart of the Michigan Republican Party.

There are several interesting tidbits about this roster. The first is that two of these folks were replaced by others even though they had been elected in November to their role as electors.

Gerald Wall is the Roscommon County Republican Party Chair. Granted, it’s a less populous county in northern central Michigan, but removing the county chair is a bit of a statement to a fairly red county.

The second replacement raised my eyebrows because Terri Lynn Land was Michigan’s Secretary of State for eight years. She’s had the support of the DeVos family — yes, including Erik Prince’s sister Betsey DeVos nee Prince — receiving campaign donations over multiple terms and candidacies for other public office.

Why were these two elected electors removed and replaced with “alternate” electors James Renner and Ken Thompson — the latter for whom I can find little information.

The slate of candidates running for the legitimate post of Republican electors — assuming a Republican won Michigan’s popular vote — had been contacted for profiles by the Detroit Free Press ahead of the November 2020 election. Several did not respond or refused to be interviewed; what’s indicated here was collected from the internet.

But there’s nothing about the swap of two electors for these new “alternate” electors. One might wonder if either Gerald Wall or Terri Lynn Land refused to serve as electors once a false certification was prepared.

The doozy out of this group is the Michigan Republican Party co-chair Meshawn Maddock, wife of state representative Matt Maddock, by whom it has been said the MIGOP had been radicalized.

You’ll want to read this thread by Karen Piper, who profiles Meshawn while connecting more than a few dots:

Maddock’s relationship with Amy Kremer — she of the three-burner-phones and the Willard Hotel — and multiple right-wing protests at Michigan’s state capitol building is particularly interesting. It’s as if the April 15, 2020 drive-in gridlock protest rally and the armed militia protest rally inside the capitol on April 30 were practice runs for the January 6, 2021 insurrection.

If I thought I had standing and a reasonable chance at winning I’d sue each one of these “alt-electors” for attempting to steal the 2020 Michigan presidential election from me and every Michigander who voted for a candidate other than Trump. I’d sue because so many volunteers who are neighbors, friends, and family members honorably worked to ensure a safe and secure election, and these radical right-wing members of the MIGOP tainted their efforts, cast aspersions on our state, and nearly stole our civil rights after we had to put up with weeks of harassment to get to certification.

As former MIGOP leader and Project Lincoln senior advisor Jeff Timmer described Meshawn,

“She is nuts. Her husband is nuts. They are crazy, stupid, and mean,” Timmer tells Metro Times. “They think they are saving the world.”

Um, nope. Not saved, far from it.

Hope Meshawn has a good lawyer; for some reason I don’t think she’ll get much assistance from some of the old school MIGOP.

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UPDATE-1 — 12:30 P.M. 13-JAN-2022 —

Long-time community member WilliamOckham shared in comments last night some pointers about the false certification documents:

First, let me give a shout out to the folks over at AmericanOversight[.]org for liberating the fake electoral vote documents via a FOIA to the National Archives. Several folks have noticed the similarities between the documents. I believe we can make some reasonable judgments about the provenance of these documents that will contribute to our understanding of the overall election conspiracy. Even though all we have is a scanned images pdf, if we analyze the documents with attention to the similarities and differences, we can deduce something about how those documents were produced. If you want to follow along, head over to the American Oversight website and grab a copy of the pdf I’m referencing at /american-oversight-obtains-seven-phony-certificates-of-pro-trump-electors

TL;DR version: These fake electoral certifications all came from a single source and there’s a way to prove it.

First, note that for every state there is a page (pages 7, 17, 21, 25, 28, 30, 32, and 45) that begins with three centered and bolded lines that read:
CERTIFICATE OF THE VOTES OF THE
2020 ELECTORS FROM [STATE]
**********

The first thing to note is that each of those pages is using the same font (with one slight twist that’s very revealing): Baskerville Old Face. That’s a good choice if you want to give your documents a 1776 feel. You see, it’s a digital font based on a lead type design that was first appeared in 1766.

When you start looking closely, you’ll notice that each state’s wording following the title is slightly different. However, they’re all set in Baskerville. In particular, note the “For President” and “For Vice President”. Those are formatted as small caps (the lowercase letters are replaced with smaller versions of the uppercase letters). Do you suppose seven or eight different people all managed to correctly use small caps formatting? Me, neither.

Someone created a digital file (almost certainly a Microsoft Word document) and sent it to the fake electors to fill in. There’s no other explanation for the similarities in the documents. And it’s not just that page. There was even a template for filling vacancies (caused by some electors having, you know, integrity).

One more interesting thing. Look at the first page (page 7 of the pdf). Notice the asterisks. Count the “petals”. There are five. That’s just like the Baskerville Old Face that Microsoft ships with Office and some versions of Windows. Now, look at Wisconsin’s page (page 45). There are six “petals” on the asterisks. Looks like the same font. Except what’s up with the different asterisks? Looks very much like Microsoft Word performing a font substitution. Maybe Wisconsin used the Mac version of Word. Or OpenOffice. Or Google Docs.

Now, here’s how to prove my suppositions. If you have subpoena power or a team of people to do some investigating, start tracking down the people who signed these documents. Ask them for the Word document (or other digital template) that was sent to them. Ask them who sent them and what instructions did they give them.

Hello, conspiracy.