Three Things: Ugly Goes Clean to the Bone [UPDATE-1]

[NB: As always, check the byline. Updates will appear at the bottom. Thanks. /~Rayne]

Friday we got badly wanted news; we wanted it badly enough we didn’t blink at its arrival in the late Friday afternoon news dump zone.

But it wasn’t enough. It was only the start, a mere teaser.

~ 3 ~

At 3:53 p.m. last Friday, the Department of Justice tweeted the indictment news:

The internet was paying attention:

…even if Steve Bannon hadn’t been.

Rather hubristic to carry on as if he didn’t expect to be indicted, but then many of us were beginning to think it would never happen.

Bannon is supposed to surrender himself today, which may be a bit of a circus since Bannon now has a new attorney, David Schoen. Schoen was one of Trump’s impeachment attorneys in 2020.

~ 2 ~

The well-meaning sages who insisted things were under control — it was a good sign it was taking nearly a month to indict Bannon, don’t be like deplorables, blah-blah-blah — all had their say.

But which is it?

These things just need more time because DOJ must be cautious?

Or these things just needed this one person who wasn’t approved as DC-US Attorney until October 28 and sworn in more than a week later on November 5 to do the thing — which, by the way, took one week from oath to indictment?

Because it sure looks like the entirety of the House January 6 committee’s ability to wield its inherent powers on intransigent witnesses was completely dependent on the absence/presence of a single Biden appointee which some jerk like Sen. Ted Cruz could have held up the way he is currently holding our foreign policy hostage with holds on State Department nominees.

Are we supposed to accept with a pat on our heads that our democracy yet again depended on one person’s role?

If the DC-US Attorney were to become incapacitated at any time when the January 6 committee refers a contempt charge to DOJ, are we supposed to accept the platitudes “this takes time” or “don’t be a deplorable” when nothing happens?

What kind of government continuity is this?

~ 1 ~

Which brings us to the problem of former White House Chief of Staff Mark Meadows who received communications both Thursday and Friday from the chair of the January 6 committee about his lack of response to a subpoena issued by the committee on September 23.

Using false or misleading claims, Meadows had attempted to spur the DOJ to investigate election fraud claims including a bizarre theory that unknown persons located in Italy used military technology and satellites to remotely switch votes from Trump to Biden. These claims were sent to then-Acting Attorney General Jeffrey Rosen between December and January — after the 2020 election but before the January 6 insurrection.

Meadows was supposed to appear before the committee on October 15 to answer questions about these claims and his role in pushing them toward the DOJ, a week after he was supposed to have furnished documents requested by the committee in relation to these false election fraud claims.

The committee’s chair sent a letter last Thursday to Meadow’s attorney:

And on Friday the committee emphasized it’s going to use the tools available to it to obtain compliance with the subpoena — or else.


Meadow’s attorney sent a massively ballsy op-ed to the Washington Post as a rebuttal to the committee’s subpoena:

Opinion: In abandoning executive privilege, Biden rejects 200 years of history

George J. Terwilliger III is a partner at McGuireWoods LLP in Washington and previously served as deputy attorney general.

As counsel for former White House chief of staff Mark Meadows, I was surprised and disappointed to receive a letter Thursday informing me that the Biden administration will be the first in history not to resist a congressional subpoena for testimony from a senior White House aide. …

WaPo treated this like any other conservative’s op-ed; no caveat this op-ed may be tampering with an investigation.

Rather interesting how Terwilliger was able to get a 789-word op-ed published at 3:30 p.m. on the same day the January 6 committee issued its letter. This isn’t the first time Terwilliger has opined in WaPo about someone involved in the January 6 insurrection though Terwilliger’s last op-ed was a defense of former AG Bill Barr’s interference in Roger Stone’s sentencing. Can’t have the GOP’s senior ratfucker excessively punished during an election season after all.

Former Nixon White House counsel John Dean didn’t think much of Terwilliger’s op-ed:


I think I’d put my money behind Dean as to which of these two attorneys has a better grasp on the limits of executive privilege.

But it gets worse for Meadows since the soon-to-be-released book about the January 6 insurrection by reporter Jonathan Karl revealed yet another memo outlining steps to effect the autogolpe overthrowing the election.

Meadows had forwarded by email to then-VP Mike Pence’s chief of staff Marc Short a memo prepared by attorney Jennifer Ellis outlining the steps Pence needed to take to avoid certifying the election for Biden until a new alternate slate of electors for Trump could be introduced from just enough states to flip the election to Trump.

A rather pathetic carrot offered to Pence with the stick to follow on the day of the insurrection — a threat of violence and possible assassination by mob because Pence didn’t take the memo as a White House-approved order.

Looks like the number of questions Meadows must now answer has grown even longer.

~ 0 ~

The title of this post comes from an aphorism attributed to a favorite writer, Dorothy Parker: “Beauty is only skin deep, but ugly goes clean to the bone.” Meadows may be more physically attractive and better dressed than Bannon but they’re both deeply ugly people who represent an existential threat to American democracy.

~ ~ ~

UPDATE-1 — 10:00 P.M. ET —

Yeesh.

For a guy who was simply asked to appear before a House committee to answer some questions about what happened leading up to and on the day of January 6, this guy sure wants his audience to believe he’s being uniquely singled out for harassment by a president who both believes in the equal but separate powers inherent to each branch of government, and who believes the DOJ should be independent of the White House. Perhaps Bannon’s projecting since he was just fine with Trump’s DOJ acting like his personal police force.

Bannon could have just shown up, told the committee on a question by question basis, “I can’t answer that because my lawyer said it’s under executive privilege as Trump has claimed,” and simply gone about his day, coming off cool and collected like someone with nothing to hide.

But no, Bannon has to make a big scene because it’s a grift for more money; you know when he said “Stand by,” he will likely elaborate soon saying, “Stand by, because I’m going to ask you for help soon,” and then he’ll point to a link for donations for his legal fund.

Wow, he doesn’t even need to claim he’s building a border wall this time.

Minority Report: Botheration Benefits Bannon

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

At the risk of annoying the rest of Team Emptywheel — especially our resident attorney and in part because I’m not a lawyer myself — let me offer a minority report and note we have a serious problem.

You’ll recall one-time Chief Strategist and Senior Counselor to then-President Trump Steve Bannon refused to answer a subpoena issued by the House January 6 committee.

You’ll also recall that the House then debated and voted on a charge of contempt of Congress.

The House then referred the charge once passed to the Department of Justice.

Many Americans are disappointed that Bannon is still out walking around as if U.S. laws don’t apply to him. It doesn’t help matters that Trump pardoned Bannon for conspiracy to commit mail fraud and money laundering, a pardon which has the appearance that it may have been intended as payback and as advance compensation for helping to organize the January 6 insurrection.

And now those Americans are even more disappointed that Bannon has now blown off Congress without any repercussions so far. It’s not obvious to the public why it takes so long to bring the scruffy bucket of excess shirtage, whiskers, and pudge to answer their representatives’ questions.

Bannon is thumbing his nose at the American people and they know it.

~ ~ ~

Persons who’ve worked in federal law enforcement insist the Department of Justice is working on this and the rule of law simply takes time, chiding us not to be like those people, implying behavior like the “deplorables” who chant “Lock him up!”

Except the American people have seen justice work too rapidly and unfairly for those who aren’t privileged. They expect a reasonable effort to effect justice speedily; justice delayed is justice denied. The tick-tock has been annoyingly like water torture — drip, drip, drip wearing on stone:

July 1 — Six months after the insurrection the House January 6 committee was approved and formed.

September 23 — It took two and a half months to subpoena Bannon who had been an advocate if not an organizer for the rally on January 5 and 6.

October 8 — President Biden refused to exert executive privilege over documents requested from the National Archives by the committee.

October 8 — Bannon was supposed to testify October 14 but his lawyer communicated on October 8 to the committee Bannon would not comply with the subpoena because former president Trump exerted a claim of executive privilege.

October 14 — Bannon does not report to the House committee.

October 19 — The committee began the process to hold Bannon in criminal contempt on the date Bannon was supposed to testify; the committee voted unanimously on October 19 to hold Bannon in contempt.

October 21 — Congress approved the charge on October 21 so that the charge could be referred to the Department of Justice.

October 25 — President Biden again refused to exert executive privilege over documents requested from the National Archives by the committee. No privilege has been claimed by Biden with regard to Bannon.

The public has seen no concrete action by DOJ in response to the contempt charge against Congress — a charge which should result in arresting Bannon, taking him into custody, and charging him with contempt until he complies.

23 days later, what the public sees is Bannon still doing whatever he does on any average day besides shave.

And the folks who’ve worked in law enforcement continue to say this simply takes time.

~ ~ ~

Except Congress itself is irritated, if Rep. Connolly’s opinion is more widely shared among his colleagues:


Congress members have good reason to be irritated; if DOJ couldn’t see ahead from Day One of the Biden administration that some Trump administration officials, staffers, and other supporters would resist a Congressional investigation into any allegation of Trump or Trump-adjacent wrongdoing, they had to be naïve or grossly incompetent. The impeachment investigations gave ample examples of what would happen and hinted at worse.

DOJ could at least have made an effort to appear ready to deal with intransigent witnesses. It’s not as if DOJ is unaware the public is bombarded with messaging all day long and in the absence of official messages, poor messaging will embed in the public’s consciousness.

The DOJ also has no good excuse for failing to execute the contempt charge. Congressional Research Service has at least twice in the last decade examined Congress’s ability to execute subpoenas and inherent contempt — the research has been done, it’s all neatly spelled out. Vet it if necessary but it’s pretty straightforward.

The biggest single reason DOJ shouldn’t dally is that it cannot question Congress’s speech or debate. An attack on the Capitol Building while Congress was in session is the most obviously legitimate reason for the House to issue a subpoena. Congress must know as part of its necessary speech and debate what happened leading up to and during the attack in order to:

(2) identify, review, and evaluate the causes of and the lessons learned from the domestic terrorist attack on the Capitol regarding—

(A) the command, control, and communications of the United States Capitol Police, the Armed Forces, the National Guard, the Metropolitan Police Department of the District of Columbia, and other Federal, State, and local law enforcement agencies in the National Capital Region on or before January 6, 2021;

(B) the structure, coordination, operational plans, policies, and procedures of the Federal Government, including as such relate to State and local governments and nongovernmental entities, and particularly with respect to detecting, preventing, preparing for, and responding to targeted violence and domestic terrorism;

(C) the structure, authorities, training, manpower utilization, equipment, operational planning, and use of force policies of the United States Capitol Police;

(D) the policies, protocols, processes, procedures, and systems for the sharing of intelligence and other information by Federal, State, and local agencies with the United States Capitol Police, the Sergeants at Arms of the House of Representatives and Senate, the Government of the District of Columbia, including the Metropolitan Police Department of the District of Columbia, the National Guard, and other Federal, State, and local law enforcement agencies in the National Capital Region on or before January 6, 2021, and the related policies, protocols, processes, procedures, and systems for monitoring, assessing, disseminating, and acting on intelligence and other information, including elevating the security posture of the United States Capitol Complex, derived from instrumentalities of government, open sources, and online platforms; and

(E) the policies, protocols, processes, procedures, and systems for interoperability between the United States Capitol Police and the National Guard, the Metropolitan Police Department of the District of Columbia, and other Federal, State, and local law enforcement agencies in the National Capital Region on or before January 6, 2021; and

(3) issue a final report to the House containing such findings, conclusions, and recommendations for corrective measures described in subsection (c) as it may deem necessary.

All of which is part of Congress’s legislative purview.

Nor should the DOJ find a way to punt to the judiciary since the court has already repeatedly agreed that under Article I, Section 8, Clause 18, Congress’s implied powers of investigation are essential to its ability to legislate — and subpoenas are part of that power to investigate.

As for the excuse given by Bannon for not complying with the subpoena: executive privilege belongs to the office, not the person. The current executive has so far declined to exert privilege over anything Bannon provided to Trump during the eight months Bannon was a federal employee and adviser to Trump. There’s no executive privilege over any acts Bannon exerted as a private individual on behalf of candidate Trump’s campaign; Bannon can avail himself of his Fifth Amendment rights when questioned by the January 6 committee as he and his attorney feel appropriate.

~ ~ ~

The charge is dirt simple and obvious: Bannon didn’t comply with the subpoena, violating 2 USC 192 – Refusal of witness to testify or produce papers, and 2 USC 194 – Certification of failure to testify or produce; grand jury action. He’s not the executive, nor is Trump the executive, and the current executive has made no claim, making Bannon’s claim of executive privilege at Trump’s request invalid.

The January 6 committee is investigating a domestic terrorist attack upon the United States Capitol Complex, interfering with government operations. Though fewer deaths resulted, it’s a crime on par with 9/11 in that terrorists attacked the United States with intent to disrupt our government — or worse, since it was an attack directly on the people’s representatives with the intent to overthrow the government (through an autogolpe).

Should we really expect the public not to get antsy about the apparent lack of action given the seriousness of the crime and the persistent inability of the House to consistently obtain compliance from witnesses under both the 116th and 117th Congress?

Should we really expect the public not to be itchy when the current Attorney General admits to having been insulated by “the monastery of the judiciary” for years (an approximate paraphrase of an analogy Garland made during during an October 4 interview with Jane Mayer of The New Yorker)?

Should we really expect a majority of the American people not to be concerned about the length of time it takes to arrest and detain a white male investment banker and media executive who was Trump’s adviser, when they elected this administration to both undo the damage of the Trump years AND restore faith in their government?

Three Things: North by East by Northeast on January 6

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

While Marcy has the prosecutions of January 6 perps admirably handled, there are a few things which have niggled at me as the investigations into the insurrection have progressed.

Maybe they’re something; maybe they’re nothing. What do you think?

~ 3 ~

In the early days after the insurrection, a few of the better pieces of reporting looked at the location and timing of the mob. I’d snapped screenshots from one report in particular but I should have done more since the original report no longer contains the key interactive feature without any note it was pulled/killed. I can’t pull up the video any longer from which I pulled this screenshot – here is the original as snapped and an enhanced version tweaked for color balance, gamma, and saturation.


In this snap from a representation of cell phone users moving toward the Capitol on January 6, note in particular at the northeast of the Capitol Building a dense cluster of cell phone signatures.

The cluster isn’t highlighted like the mass of rioters who moved from the Ellipse toward the Capitol, but the signatures are dense.

You’ll note the location is at/near Columbus Circle where people will catch transportation, but the cell phone traffic didn’t appear to move toward the circle after the speeches were done at the Ellipse; it was very focused on moving toward the Capitol.

Nor was there cell phone traffic moving toward the Capitol South Station for transportation though the area may have been closed to through traffic.

Who were these people and why were there so many in that one north-northeast location as the Capitol was assaulted? Is there a benign explanation like people waiting for rally/insurrection participants, or is there another explanation?

~ 2 ~

Dr. Jack Brown, who does body language analysis, performed an analysis of surveillance photos and video which captured the perp who left the improvised explosive devices near the Democratic National Committee building and the Capitol Hill Club on the evening of January 5. It’s worth your time to visit this threaded study.

I can’t help thinking after looking at images and video of the perp that this was a woman wearing shoes which may not have been hers, but perhaps my perception is off.

One really important detail came up in this analysis which I know I’d missed before and perhaps reporters did, too: earlier reporting by multiple media outlets said the second IED had been placed at the RNC building (located at 310 First St SE, Washington, DC), not the Capitol Hill Club (located at 300 First St SE, Washington, DC). What’s the story here? Is it important that the perp targeted the Capitol Hill Club and not the RNC?

One other detail which I don’t recall being reported before the Washington Post’s huge investigative spread was the existence of a third suspicious package which hasn’t been called an IED or bomb, located at the Supreme Court building which is located directly east of the Capitol Building.

The DNC offices are south of the Capitol while the Capitol Hill Club is to the southeast. Had the IEDs at these sites detonated, law enforcement (and National Guard if they were summoned) may have swarmed to the location of the IEDs. If the suspicious material at the Supreme Court building was an IED, that would also have drawn first response personnel away from the Capitol. All three combined would have left the east side of the Capitol even more lightly defended than it was.

Not to mention the chaos such blasts would have created among mob members who weren’t in on a possible conspiracy behind the bombs.

All of which makes the congregated cell phone signatures to the northeast of the Capitol Building off First Street more intriguing.

~ 1 ~

Long-time emptywheel community member harpie has done yeoman’s work pulling together timeline content related to January 6 events. In a comment last night she pointed to the parking place of Alabaman Lonnie Coffman who has accepted a plea agreement related to a 17-count indictment related to weapons and explosives found in his pickup truck on January 6.

You may recall the truck had guns and Molotov cocktails in it. Reporting mentioned that the truck was found during a search around the area where the IEDs had been found:

… According to charging papers, police spotted weapons in his red pickup while searching an area of Capitol Hill that had been sealed off because unexploded pipe bombs had been reported near the headquarters of the Republican and Democratic parties minutes before the mob assault began about 1 p.m. …

The curious thing about this truck which caught my eye was its parked location: 301 First Street SE. That’s between the DNC offices and the Capitol Hill Club as you’ll note on this map:

 

This parking address denoted by the red flag is next to the Capitol Hill Club.

It’s also directly south on First Street from whatever was going on with that cluster of cell phones to the northeast of the Capitol Building.

Curiouser and curiouser.

Coffman’s plea agreement was sealed, by the way:

… In a 24-page decision, Kollar-Kotelly found that sealed government filings and his cache of weapons “convincingly demonstrate[d]” his planned intentions to disrupt Congress in potential coordination with others. The judge did not say that coordination was realized. …

Coordination? Or conspiracy?

~ 0 ~

I can’t help wondering if there was a Quick Response Force waiting at Columbus Circle for some triggering event less than a mile south along First Street SE.

Were the Molotov cocktails not meant to be thrown but part of an in-place fiery signal in a sacrificed truck parked between the location of two IEDs? Or were they meant to be used on whomever responded to calls had the IEDs detonated?

It will be a long wait before we find out. Plenty of food for thought in the mean time.

Thanks to harpie for all the bits and pieces!

Gina Bisignano: If a Plea Deal Falls on the Docket and No One Hears It …

It turns out there are a lot of things that won’t show up on a January 6 docket.

According to a motion to ditch her house arrest filed last week, Gina Bisignano — the Beverly Hills salon owner who wore a Louis Vuitton sweater to the insurrection — signed a plea deal back in July.

10. On July 28, 2021, Defendant signed a plea agreement in the above captioned case UNDER SEAL.

11. On August 4, 2021, Defendant appeared before this Court and entered a guilty plea in the above captioned case, UNDER SEAL, to multiple counts of the indictment.

Normally, when people sign plea deals under seal like this, it’s a sign of a cooperation agreement.

That wouldn’t be surprising. DOJ has been trying to charge the group of LA-area anti-vax activists who traveled to DC together in a conspiracy for most of the year. And the transcript of Danny Rodriguez’ March 31 post-arrest interview showed the FBI agents interviewing Rodriguez — who went to insurrection with Gina and others and whose alleged tasering of Michael Fanone would form the center of any conspiracy — at least pretending that she was talking with investigators, possibly even claiming that Rodriguez threatened her to keep quiet at a visit to her home.

Q. Did you talk to Gina before she got arrested?

A. Um-hmm.

Q. What’d you find out from her?

A. Nothing. I mean, we just said hi. But, I mean, we didn’t talk about anything else. I don’t really know her that well.

Q. Did you go over to her house?

A. I’ve been to her house.

Q. After January 6th, have you been to her house?

A. Yeah. I went one time, yes.

Q. With Ed?

A. No.

Q. With who?

A. Gabe. The guy who turned a rat.

Q. What do you mean?

A. The guy who’s snitching on everyone. He’s a Trump supporter, but — and he had all this — he used to always pick fights with BLM and Antifa, and we always had problems with him making us look bad, and he always wanted to get violent. And now he’s turned on us — or, me.

Q. What happened when you went with Gabe to talk to Gina?

A. It was just, like, to touch base. It was just like, hey, you know, we’re — we made it. We’re back. Everything’s okay. Are you okay? Kind of thing.

Q. What is Gabe going to say happened?

A. I don’t know. I don’t know about that guy. I mean, I haven’t had contact with him and he was really quiet. He looked like he didn’t like what happened and he was just — kind of just sit — staring at the floor a little bit or something. Like, sitting on the couch quiet. And Gina and I were talking about D.C. and he was just quiet and, I mean — and then he left and I left. We were only there for, like, 30 minutes maybe.

Q. Is there any reason why Gina would tell us that you told her not to say anything to — about you being at the Capitol?

A. Yeah. I mean —

Q. Is that what you guys talked about?

A. I guess. Yeah. I mean, like — yeah. We’re like, don’t talk about this and don’t tell anybody and —

Q. Did you threaten her?

A. No.

Q. But you told her not to say anything.

A. No, I didn’t tell her. I mean, I think it was — no. I don’t even think I told her not to say anything. I just think it was just assumed or implied that —

Q. Well, tell me what you said because I don’t want to put words in your mouth. Tell me how the conversation went.

A. I really didn’t talk to Gina too much. I mean, we were over there and just talking, and was smoking some weed on her patio. That’s it.

Q. And?

A. I didn’t threaten her or tell her any — tell her to do anything.

Q. But you guys did talk about not saying anything to the police about what happened in D.C.?

A. We weren’t even talking necessarily about not talking to the police. We were saying not to talk to — about this to anyone that we know.

Q. So just don’t tell anybody?

A. Just keep it quiet and don’t tell anybody anything and let’s try to live our lives normal, but not really, no.

Q. Okay.

[snip]

AGENT ELIAS: And then he said he met up with out there Kayla, Chris Almonte, somebody named Sauna, and Gina. And then we talked a little bit about Gina and he said that, after January 6th, he did go to Gina’s house with Gabe one time. And they did discuss not saying anything to anyone.

BY AGENT ARMENTA: Q. Okay. So you told Gina that?

A. Yeah. We were just not going to talk to — talk about it with anybody.

Q. Did you threaten her at all?

A. No. For sure, no.

Q. So she’s not going to say that?

A. I would hope not.

Q. What about —

A. No. She’s a sweet woman. I wouldn’t threaten her. And plus, what I did, why — how can I threaten? I mean, if I threaten her, she’s just going to turn me in, right? [my emphasis]

Revealing a cooperation plea deal without permission is a good way to ruin your chances to get a 5K1.1 letter, which is what the government submits to ask for a lesser sentence in exchange for substantial assistance. So it’s possible the plea deal has gone south.

Nevertheless, we should expect there are secret plea deals like this among the 650 defendants. And so I wanted to observe several things about Bisignano’s docket. Mostly, that there’s no sign of a plea deal in it. Or anything else of interest.

Bisignano was arrested on January 19 and indicted ten days later. She was in a limbo for an extended period amid COVID-related transfer delays and also a delay getting her attorney admitted to the case. On February 26, Judge Carl Nichols released her to the house arrest she’s now trying to get relaxed.

But aside from adoption of a protective order in April (that is, after the Rodriguez agents claimed that Bisignano may have already started talking) and a grand jury disclosure order in July, just days before the plea deal, the only things that have happened in the docket are repeated requests for relaxation of her release conditions, status conferences, and discovery. The only thing reported out from a September status hearing pertained to her request for a relaxation of her release conditions.

Days before Bisignano pled guilty, July 24, the prosecutor in this case, Kimberly Paschall provided a summary of the discovery provided to day (which was mostly the stuff that went into her arrest). There has been no other discovery described outside of the mass discovery status updates.

All of which is to say, there’s nothing in the docket.

I raise all this not just to say, we have no idea what this means, though we have no idea what Bisignano’s public claim to have entered into a sealed plea deal in July means. The expected conspiracy case has never been publicly filed.

But it is worth noting that DOJ has not visibly met two deadlines set by Judge Amy Berman Jackson in the Rodriguez case, to tell her whether his case will be joined with others accused of assaulting Fanone, and to explain why he hasn’t been offered a plea deal.

First of all, the Court will require the government to make its intentions plain, and therefore it is HEREBY ORDERED that any motion to join this case to any other for trial must be filed by November 5, 2021. Any motion to extend that date must be based on good cause shown, and vague references to ongoing investigations or extenuating circumstances will not suffice; if matters must be submitted to the Court under seal, the government is familiar with how to accomplish that.

Second, it is FURTHER ORDERED that the government must inform the Court by November 5, 2021 whether a plea offer has been extended in this case and if not, why not.

These filings were due — on the docket, or under seal — by Friday, but there’s nothing there.

The lesson of this post, then, is that for all the wailing that nothing is going on in the January 6 investigation, there’s likely to be a lot going on that we’re not seeing.

January 6 Defendants Succeed in Proving They Were Treated Better than Other DC Detainees

As I’ve noted, because of Christopher Worrell’s claims he has been denied medical treatment (many claims of which don’t match his own medical record), Royce Lamberth held the Warden and the Director of the DC jail in contempt, leading to a Civil Rights Division investigation.

I’ve also noted Nate DeGrave’s fantastic complaints about jail conditions, including that he has to eat baloney sandwiches.

Yesterday, the Marshal Service revealed that, seemingly in response to Lamberth’s Worrell order, it did unannounced visits at several DC jail facilities. It determined that one DC jail facility was not fit to house inmates.

But that was the other DC jail facility — not the more modern one where all the January 6 defendants are housed.

The USMS inspection was prompted by recent and historical concerns raised regarding conditions at the DC DOC facilities, including those recently raised by various members of the judiciary.

The inspection encompassed two DC DOC housing facilities – the Central Treatment Facility (CTF) and the Central Detention Facility (CDF). During the unannounced inspection, the U.S. Marshal reviewed both housing facilities and conducted more than 300 voluntary interviews with detainees.

The U.S. Marshal’s inspection of CTF did not identify conditions that would necessitate the transfer of inmates from that facility at this time. CTF houses approximately 120 detainees in the custody of the USMS, including all the defendants in pre-trial custody related to alleged offenses stemming from events that took place on January 6 at the U.S. Capitol, as well as other federal detainees. Housing assignments for detainees are determined by the DC DOC.

The U.S. Marshal’s inspection of CDF revealed that conditions there do not meet the minimum standards of confinement as prescribed by the Federal Performance-Based Detention Standards. CDF houses approximately 400 detainees in the custody of the USMS.

Too be clear: The conditions the January 6 defendants are held in are still inadequate, at least with respect to their access to discovery and the limits on video conference rooms (which limit how quickly judges can schedule hearings, one of Judge Lamberth’s underlying complaints).

But as Judge Mehta has said in response to such claims, the conditions January 6 defendants are experiencing are the same that a number of other predominantly brown defendants, some of them who’ve been jailed significantly longer than the January 6 defendants, have been experiencing.

Or, in some cases, those other detainees were experiencing significantly worse conditions.

Update: Judge Lamberth ordered Worrell moved to Alexandria jail immediately, and released to home detention in Florida once Pre-trial services vets someone to take over his custody.

Baloney and Blackjack! A John Pierce Client Complains of Paying Too Much for What Had Been Free

It’s time to check in with John Pierce’s accumulation of January 6 clients.

The other day, the attorney who got fired by Kyle Rittenhouse apparently swapped family members to expand his docket. Pierce withdrew from the case of Jonah Westbury, who is charged, by himself, with trespassing. At virtually the same time, Pierce was making his first appearance in the case of Isaac and Robert Westbury and Aaron James, replacing lawyers for all three. Isaac Westbury and Aaron James are charged with civil disorder and assault, and all three are charged with trespassing. When Rudolph Contreras was sorting all this out a status hearing, Pierce explained, “ I think we’re up to 21, your honor!!!,” like a kid who has gotten his first 21 in blackjack. (h/t MK for the observation) Though unless not all his clients are noticed on the docket, he’s at 20 as of November 1.

Here are those 20, along with the clients who dropped him along the way:

Christopher Worrell: Christopher Worrell is a Proud Boy from Florida arrested on March 12. Worrell traveled to DC for the December MAGA protest, where he engaged in confrontational behavior targeting a journalist. He and his girlfriend traveled to DC for January 6 in vans full of Proud Boys paid for by someone else. He was filmed spraying pepper spray at cops during a key confrontation before the police line broke down and the initial assault surged past. Worrell was originally charged for obstruction and trespassing, but later indicted for assault and civil disorder and trespassing (dropping the obstruction charge). He was deemed a danger, in part, because of a 2009 arrest for impersonating a cop involving “intimidating conduct towards a total stranger in service of taking the law into his own hands.” Pierce first attempted to file a notice of appearance on March 18. Robert Jenkins (along with John Kelly, from Pierce’s firm) is co-counsel on the case. Since Pierce joined the team, he has indulged Worrell’s claims that he should not be punished for assaulting a cop, but neither that indulgence nor a focus on Worrell’s non-Hodgkins lymphoma nor an appeal succeeded at winning his client release from pre-trial detention. While Pierce was hospitalized with COVID, Pierce submitted some filings attempting to get Worrell out of jail because he’s not getting medical care; the most recent filing not only thrice misstated what jail Worrell is in, but also admitted he has refused treatment at least five times. On September 24, Alex Stavrou replaced Pierce, and almost immediately found success that Pierce had lacked in getting Judge Royce Lamberth to believe that Worrell is not getting adequate medical treatment in the DC jail.

1. William Pepe: William Pepe is a Proud Boy charged in a conspiracy with Dominic Pezzola and Matthew Greene for breaching the initial lines of defense and, ultimately, the first broken window of the Capitol. Pepe was originally arrested on January 11, though is out on bail. Pierce joined Robert Jenkins on William Pepe’s defense team on March 25. By April, Pierce was planning on filing some non-frivolous motions (to sever his case from Pezzola, to move it out of DC, and to dismiss the obstruction count), but not much has happened since.

2. Paul Rae: Rae is another of Pierce’s Proud Boy defendants and his initial complaint suggested Rae could have been (and could still be) added to the conspiracy indictments against the Proud Boys already charged. He was indicted along with Arthur Jackman for obstruction and trespassing; both tailed Joe Biggs on January 6, entering the building from the East side after the initial breach. Pierce filed to join Robert Jenkins in defending Rae on March 30.

3. Stephanie Baez: On June 9, Pierce filed his appearance for Stephanie Baez. Pierce’s interest in Baez’ case makes a lot of sense. Baez, who was arrested on trespassing charges on June 4, seems to have treated the January 6 insurrection as an opportunity to shop for her own Proud Boy boyfriend. Plus, she’s attractive, unrepentant, and willing to claim there was no violence on January 6. Baez was formally charged with trespassing on August 4.

Victoria White: White was detained briefly on January 6 then released, and then arrested on April 8 on civil disorder and trespassing charges. At one point on January 6, she was filmed trying to dissuade other rioters from breaking windows, but then she was filmed close to and then in the Tunnel cheering on some of the worst assault. Pierce filed his notice of appearance in White’s case on June 10. On September 3, while Pierce was in the hospital with COVID, White told Judge Faruqui she didn’t want Pierce to represent her anymore.

Ryan Samsel: After consulting with Joe Biggs, Ryan Samsel kicked off the riot by approaching the first barriers and — with several other defendants — knocking over a female cop, giving her a concussion. He was arrested on January 30 and is still being held on his original complaint charging him with assault and civil disorder. He’s obviously a key piece to the investigation and for some time it appeared the government might have been trying to persuade him that the way to minimize his significant exposure (he has an extensive criminal record) would be to cooperate against people like Biggs. But then he was brutally assaulted in jail. Detainees have claimed a guard did it, and given that Samsel injured a cop, that wouldn’t be unheard of. But Samsel seemed to say in a recent hearing that the FBI had concluded it was another detainee. In any case, the assault set off a feeding frenzy among trial attorneys seeking to get a piece of what they imagine will be a huge lawsuit against BOP (as it should be if a guard really did assault him). Samsel is now focused on getting medical care for eye and arm injuries arising from the assault. And if a guard did do this, then it would be a key part of any story Pierce wanted to tell. After that feeding frenzy passed, Pierce filed an appearance on June 14, with Magistrate Judge Zia Faruqui releasing his prior counsel on June 25. Samsel is a perfect defendant for Pierce, though (like Rittenhouse), the man badly needs a serious defense attorney. On July 27, Samsel informed Magistrate Judge Zia Faruqui that he would be retaining new counsel.

4. James McGrew: McGrew was arrested on May 28 for assault, civil disorder, obstruction, and trespassing, largely for some fighting with cops inside the Rotunda. His arrest documents show no ties to militias, though his arrest affidavit did reference a 2012 booking photo, he has some drug-related crimes, and he violated probation in the period before he was arrested. Pierce filed his appearance to represent McGrew on June 16, and he’s currently trying to get McGrew bailed by arguing he wasn’t assaulting cops, he was looking for his mother. Update: Chief Judge Howell denied the effort to reopen detention fairly resoundingly.

Alan Hostetter: John Pierce filed as Hostetter’s attorney on June 24, not long after Hostetter was indicted with five other Three Percenters in a conspiracy indictment paralleling those charging the Oath Keepers and Proud Boys. Hostetter was also active in Southern California’s anti-mask activist community, a key network of January 6 participants. Hostetter and his defendants spoke more explicitly about bringing arms to the riot, and his co-defendant Russell Taylor spoke at the January 5 rally. On August 3, even before Pierce’s bout with COVID halted his relentless acquisition of new Jan 6 clients, Hostetter replaced Pierce, and Hostetter has since gotten permission to represent himself.

5, 6, 7. On June 30, Pierce filed to represent David Lesperance, and James and Casey Cusick. As I laid out here, the FBI arrested the Cusicks, a father and son that run a church, largely via information obtained from Lesperance, their parishioner. They were originally separately charged (LesperanceJames CusickCasey Cusick), all with just trespassing, but have since been joined in one case. The night before the riot, father and son posed in front of the Trump Hotel with a fourth person besides Lesperance (though Lesperance likely took the photo).

Kenneth Harrelson: On July 1, Pierce filed a notice of appearance for Harrelson, who was first arrested on March 10. Leading up to January 6, Harrelson played a key role in Oath Keepers’ organizing in Florida, particularly meetings organized on GoToMeeting. On the day of the riot, Kelly Meggs had put him in charge of coordinating with state teams. Harrelson was on the East steps of the Capitol with Jason Dolan during the riot, as if waiting for the door to open and The Stack to arrive; with whom he entered the Capitol. With Meggs, Harrelson moved first towards the Senate, then towards Nancy Pelosi’s office. When the FBI searched his house upon his arrest, they found an AR-15 and a handgun, as well as a go-bag with a semi-automatic handgun and survivalist books, including Ted Kaczynski’s writings. Harrelson attempted to delete a slew of his Signal texts, including a video he sent Meggs showing the breach of the East door. Pierce attempted to get Harrelson out on bail by joining in the bail motion of one of his co-defendants, which may either show how little he knows about defense work or how little he cares. On October 8, Harrelson replaced Pierce with Brad Geyer, and anti-vaxxer who just got slapped down by Amit Mehta for trying to make this case about that, instead of attacking democracy.

MINUTE ORDER denying Defendant KENNETH HARRELSON (10) and KELLY MEGGS’s (8) [476] Motion for Enlargement of Page Limit. Whatever motion Defendants intend to file, the court will stop reading it after page 45. See LCrR 47(e). The court will not allow this case to become a forum for bombastic arguments (“SCOTUS Could Not Have Foreseen the Holocaust,” see ECF No. 476-2, at 1) or propagating fringe views about COVID-19 or vaccinations (“A Human Experiment Unlike Any Other,” “Pseudo-Science Displaces Science,” “Mandatory Everything,” “C19 Conspiracy Structure,” see ECF No. 476-2, at 2). To this court’s knowledge, the D.C. Department of Corrections does not require any person held there to accept a COVID-19 vaccine. If that is the intended basis of Defendants’ motion, they must file a brief of no more than five pages (excluding exhibits) establishing such a mandatory policy before the court will accept a longer filing. Signed by Judge Amit P. Mehta on 11/01/2021.

8. Leo Brent Bozell IV: It was, perhaps, predictable that Pierce would add Bozell to his stable of defendants. “Zeeker” Bozell is the scion of a right wing movement family including his father who has made a killing by attacking the so-called liberal media, and his grandfather, who was a speech writer for Joseph McCarthy. Because Bozell was released on personal recognizance there are details of his actions on January 6 that remain unexplained. But he made it to the Senate chamber, and while there, made efforts to prevent CSPAN cameras from continuing to record the proceedings. He was originally arrested on obstruction and trespassing charges on February 12; his indictment added an abetting the destruction of government property charge, the likes of which have been used to threaten a terrorism enhancement against militia members. Pierce joined Bozell’s defense team (thus far it seems David B. Deitch will remain on the team) on July 6.

9. Nate DeGrave: DeGrave is part of what I’ve called the “disorganized militia” conspiracy, a handful of guys who met online, ordered a bunch of gear from Amazon, and then happened to be at several key places — the East Door of the Capitol and the Senate — during the riot.The night before DeGrave’s quasi co-conspirator Josiah Colt pled guilty as part of a cooperation agreement, July 13, Pierce filed a notice of appearance for Nate DeGrave.

10 and 11. Nathaniel Tuck and Kevin Tuck: On July 19, Pierce filed a notice of appearance for Nathaniel Tuck, the Florida former cop Proud Boy. On July 20, Pierce filed a notice of appearance for Kevin Tuck, Nathaniel’s father and still an active duty cop when he was charged. This means he represents three of the people charged, together but in a conspiracy, for tagging along behind Joe Biggs the day of the riot.

12. Peter Schwartz: On July 26, Pierce filed a notice of appearance for Peter Schwartz, a felon out on COVID-release accused of macing some cops.

13. Jeramiah Caplinger: On July 26, Pierce filed a notice of appearance for Jeramiah Caplinger, who drove from Michigan and carried a flag on a tree branch through the Capitol.

Deborah Lee: On August 23, Pierce filed a notice of appearance for Deborah Lee, who was arrested on trespass charges months after her friend Michael Rusyn. On September 2, Lee chose to be represented by public defender Cara Halverson.

14. Shane Jenkins: On August 25, Pierce colleague Ryan Marshall showed up at a status hearing for Jenkins and claimed a notice of appearance for Pierce had been filed the night before. In that same hearing, he revealed that Pierce was in a hospital with COVID, even claiming he was on a ventilator and not responsive. The notice of appearance was filed, using Pierce’s electronic signature, on August 30, just as DOJ started sending out notices that all Pierce cases were on hold awaiting signs of life. Jenkins is a felon accused of bringing a tomahawk to the Capitol and participating in the Lower West Tunnel assaults on cops.

15. Anthony Sargent: On September 25, Pierce filed a notice of appearance for Sargent, yet another Florida Proud Boy, this one who tried to breach the North Doors.

16. David Mehaffie: On October 12, dubbed #TunnelCommander by online researchers and charged with orchestrating some of the worst fighting in the Tunnel, David Mehaffie, fired his superb public defender Sabrina Shroff and hired John Pierce.

17: Ronald McAbee: On October 25, Pierce filed a notice of appearance for Ronald McAbee, a former Georgia Sheriff with ties to the Three Percenters charged in a sweeping indictment of those who dragged some cops out of the Tunnel and beat them.

Jonah Westbury: On October 26, Pierce filed a notice of appearance for Jonah Westbury and then, three days later, on October 29, he dropped off the case. I wonder if he just got the wrong Westbury family member?

18, 19, 20: Also on October 26, Pierce filed a notice to replace the existing lawyers for Isaac and Robert Westbury and Aaron James.

As I’ve noted in the past, John Pierce appears to believe he can gaslight his way to liberating these clients — or at least profiting wildly along the way.

Witness the bullshit narrative that one of his clients, Nate DeGrave, has released from jail, as tweeted out by Brad Geyer. Nates the one in this video wearing the all-black armor, and Ronnie Sandlin, the guy in orange, is his alleged co-conspirator. Other rioters tried to restrain DeGrave here.

DeGrave’s letter from jail is a transparent attempt to make false claims to sustain a fairy tale that he and others in the DC jail are 1) being detained merely for protesting and 2) being treated any differently from other people in the DC jail, including some who, because of COVID, have been there even longer than Jan6ers have.

One of his complaints is that he’s being fed baloney sandwiches, which he says is causing him to starve and/or spend money at the commissary.

We are undergoing SEVERE NUTRITIONAL DEFICIENCIES and STARVATION. For breakfast this morning, I received a tray of flavorless paste, two slices of bread, and a slice of bologna. Lunches usually consist of rice and beans, but we’ll get cold chicken/beef patties if we are lucky. For dinner, we are sometimes fed a diet of cheese sandwiches, and bologna and cheese 4 to 5 times per week. Without commissary, people like myself are FORCED TO STARVE.

He also asserts that the around 40 of Jan6ers in the DC jail (which includes at least one and possibly several Black men) are not white supremacists, but then describes the guards as “liberal migrants,” white supremacist code.

And last but not least, we experience racism from many guards on a daily basis, being the ONLY WHITE REPUBLICANS in the entire jail.

The false narrative is has been passed around the jail and to corrections officers that we are “white supremacists” (we are NOT). The inmate population is predominantly black, so we are at risk being here because of this false narrative. The guards are mostly liberal migrants from Africa who have been conditioned to hate us, and hate America. Jan 6ers have been mocked, beaten and ridiculed by guards for singing the National Anthem.

Much of what DeGrave complains about, though, are COVID restrictions that apply equally to other detainees at the jail, but which Jan6ers likely have exacerbated because so many of them are anti-vaxxers.

For the first 120 days in DC’s Gitmo, Jan 6ers experienced DAILY LOCKDOWNS for 23-24 HOURS before being allowed to leave our small 120 sq. ft cell.

[snip]

Masks are WEAPONIZED and used against us, even though we NEVER leave the facility. Officers have walked in with the SOLE INTENTION of needing to write 20-30 disciplinary reports against Jan 6ers, which adversely effects our chances of release and causes loss of privileges, phone time and commissary. Masks need to be covering both the nose and mouth AT ALL TIMES or we are threatened and locked down in our cells. Jan 6ers are always respectful to the employees around us, but C.Os maintain the need to invent reasons for discipline.

[snip]

If it’s a legal visit, we are placed in a 14 day quarantine, with no out of cell time; EVEN IF your attorney is VACCINATED and tests NEGATIVE for Covid.

Visits with friends or family members, for unvaccinated inmates, are NEVER ALLOWED. As a result, many people have skipped critical meetings with their council, and NEVER get an opportunity to see friends or family.

Mostly though, DeGrave is angry that after participating in an attack on the Capitol, including two alleged assaults on cops, he is being detained as a threat to the community and flight risk, which — it turns out — has consequences, including being kicked off social media by private corporations that don’t want to host seditious content.

And the jail MUST PAY for what they are doing to this country’s citizens. As a result of this unlawful detainment the last 9 months, I have lost everything. The successful business I spent 13 years of my life working on, my apartment in Las Vegas, social media accounts with a lifetime of memories…you name it. The government has essentially CANCELLED ME. Not only that, but following the arrest, my best friend of 12 years robbed my apartment, stole my cat, and hacked my personal Instagram with 100,000+ followers.

At the end of the letter comes the grift — the ask for financial help, in part to pay for commissary so he doesn’t have to eat baloney sandwiches, in part for what he deems, “legal expenses.”

If there’s anything you can do to help, I would appreciate anything at all.

Inmates here are being extorted with lack of nutrition, forcing me to spend most of what’s left on commissary which I can no longer afford. I need desperate help with my legal expenses and just help staying alive in here with commissary and all the expenses I still have on the outside as my livelihood and life has been stripped away from me. Thank you for any her you can afford, even if it is a few dollars it goes a long way in here.

It’s possible what DeGrave really wants is funding to profit off this grift — that has been the case in the past with John Pierce’s other indentured defendants.

But since DeGrave is suggesting that he needs money for his legal expenses — suggesting he needs money to pay John Pierce — it’s worth noting that DeGrave (like an growing number of Pierce’s clients) had good public defenders (like Shroff) or CJA counsel, like Joanne Slaight, who represented DeGrave from when he was arrested in January until Pierce took over in July. Slaight’s the one, not Pierce, who made a sustained effort to get DeGrave released on bail. Pierce has done little since he took over (hampered, no doubt, by his bout with COVID and the fact that one of his key assistants is not permitted to practice law). He has joined Ronnie Sandlin’s challenge to the application of 1512, but his efforts are among the more frivolous in what is otherwise a legitimate challenge to this application, arguing as it does that the entire vote certification is unconstitutional and that the means by which “corruptly” has been adjudged is “legal sophistry.”

But the solemn and formal proceedings relied upon by the government are on their face unconstitutional and following through with those proceedings was an unlawful act.

[snip]

A system of laws cannot function on the government’s proffered mechanism for distinguishing lawful from unlawful obstruction in this circumstance — “The jury will figure it out.” It is legal sophistry to claim that the defects in the statute raised by this motion will be solved by this Court fashioning instructions for a lay jury to distinguish “corrupt” obstruction from “noncorrupt” obstruction.

In other words, Pierce appears to have done more to encourage DeGrave to disseminate false claims about his own actions than what the taxpayer funded lawyer who preceded him did. And DeGrave at least claims that gaslighting serves, in part, to pay Pierce.

Donald Trump Would Withhold Evidence about Whether Enrique Tarrio Really Did Visit the White House Last December

One of the most dramatic events of 9/11 came when Dick Cheney authorized the shootdown of United flight 93, and only afterwards contacted President Bush to confirm the order.

At some time between 10:10 and 10:15, a military aide told the Vice President and others that the aircraft was 80 miles out.Vice President Cheney was asked for authority to engage the aircraft.218 His reaction was described by Scooter Libby as quick and decisive, “in about the time it takes a batter to decide to swing.” The Vice President authorized fighter aircraft to engage the inbound plane. He told us he based this authorization on his earlier conversation with the President.The military aide returned a few minutes later, probably between 10:12 and 10:18, and said the aircraft was 60 miles out. He again asked for authorization to engage.TheVice President again said yes.219

At the conference room table was White House Deputy Chief of Staff Joshua Bolten. Bolten watched the exchanges and, after what he called “a quiet moment,”suggested that theVice President get in touch with the President and confirm the engage order. Bolten told us he wanted to make sure the President was told that the Vice President had executed the order. He said he had not heard any prior discussion on the subject with the President.220

The Vice President was logged calling the President at 10:18 for a two-minute conversation that obtained the confirmation. On Air Force One, the President’s press secretary was taking notes; Ari Fleischer recorded that at 10:20, the President told him that he had authorized a shootdown of aircraft if necessary.221

The revelation was an early warning about Cheney’s willingness to assume the power of the President. But identifying it also allowed the government to consider tweaking presidential authorities and improving communications for such moments of crisis.

We know this happened, as laid out in the 9/11 Report, based on Switchboard Logs that recorded Cheney’s call to Bush, the Presidential Daily Diary recounting the President’s and Vice President’s actions, and Press Secretary Ari Fleischer’s notes.

218.White House notes, Lynne Cheney notes, Sept. 11, 2001;White House notes, Lewis Libby notes, Sept. 11, 2001.

219. For Libby’s characterization, see White House transcript, Scooter Libby interview with Newsweek, Nov. 2001. For the Vice President’s statement, see President Bush and Vice President Cheney meeting (Apr. 29, 2004). For the second authorization, see White House notes, Lynne Cheney notes, Sept. 11, 2001;White House notes, Lewis Libby notes, Sept. 11, 2001.

220. Joshua Bolten meeting (Mar. 18, 2004); see also White House notes, Lewis Libby notes, Sept. 11, 2001 (“10:15–18:Aircraft 60 miles out,confirmed as hijack—engage?VP:Yes.JB [Joshua Bolten]:Get President and confirm engage order”).

221. For the Vice President’s call, see White House record, Secure Switchboard Log,Sept.11,2001; White House record, President’s Daily Diary, Sept. 11, 2001;White House notes, Lewis Libby notes, Sept. 11, 2001. Fleischer’s 10:20 note is the first mention of shootdown authority. See White House notes, Ari Fleischer notes, Sept.11,2001; see also Ari Fleischer interview (Apr. 22, 2004).

These are precisely the kinds of records that, according to a declaration from the White House Liaison with the National Archive, Donald Trump wants to withhold from the January 6 Select Committee, including from Committee Co-Chair Liz Cheney. The declaration was submitted in support of a filing opposing Trump’s effort to invoke privilege over such files. Politico first reported on the filing.

According to NARA’s Liaison John Laster, Trump is attempting to invoke privilege over precisely the analogous records from during the January 6 terrorist attack: presidential diaries, switchboard records, and Press Secretary Kayleigh McEnany’s records.

32. First Notification: The First Notification includes 136 pages of records transferred to NARA from (i) the files of Chief of Staff Mark Meadows, (ii) the files of Senior Advisor to the President Stephen Miller, (iii) the files of Deputy Counsel to the President Patrick Philbin, (iv) the White House Daily Diary, which is a chronological record of the President’s movements, phone calls, trips, briefings, meetings, and activities, (v) the White House Office of Records Management, and (vi) the files of Brian de Guzman, Director of White House Information Services.

31. President Trump made particularized assertions of executive privilege over 46 of these 136 pages of records (including seven pages of records that, as noted above, had been removed as non-responsive). He asserted privilege over: (i) daily presidential diaries, schedules, appointment information showing visitors to the White House, activity logs, call logs, and switchboard shift-change checklists showing calls to the President and Vice President, all specifically for or encompassing January 6, 2021 (30 pages); (ii) drafts of speeches, remarks, and correspondence concerning the events of January 6, 2021 (13 pages); and (iii) three handwritten notes concerning the events of January 6 from Mr. Meadows’ files (3 pages).

32. Second Notification: The Second Notification includes 742 pages of records transferred to NARA from: (i) the files of Chief of Staff Mark Meadows; (ii) the White House Office of the Executive Clerk; (iii) files from the White House Oval Office Operations; (iv) the files of White House Press Secretary Kayleigh McEnany; and (v) Senior Advisor to the President Stephen Miller.

33. President Trump made particularized assertions of executive privilege over 656 of these 742 pages of records. He asserted privilege over: (i) pages from multiple binders containing proposed talking points for the Press Secretary, interspersed with a relatively small number of related statements and documents, principally relating to allegations of voter fraud, election security, and other topics concerning the 2020 election (629 pages); (ii) presidential activity calendars and a related handwritten note for January 6, 2021, and for January 2021 generally, including January 6 (11 pages); (iii) draft text of a presidential speech for the January 6, 2021, Save America March (10 pages); (iv) a handwritten note from former Chief of Staff Mark Meadows’ files listing potential or scheduled briefings and telephone calls concerning the January 6 certification and other election issues (2 pages); and (v) a draft Executive Order on the topic of election integrity (4 pages).

34. Third Notification: The Third Notification includes 146 pages of records transferred to NARA from (i) the White House Office of the Executive Clerk and (ii) the files of Deputy White House Counsel Patrick Philbin.

35. President Trump made particularized assertions of executive privilege over 68 of these 146 pages of records. He asserted privilege over: (i) a draft proclamation honoring the Capitol Police and deceased officers Brian Sicknick and Howard Liebengood, and related emails from the files of the Office of the Executive Clerk (53 pages); and (ii) records from the files of Deputy White House Counsel Patrick Philbin, including a memorandum apparently originating outside the White House regarding a potential lawsuit by the United States against several states President Biden won (4 pages), an email chain originating from a state official regarding election-related issues (3 pages), talking points on alleged election irregularities in one Michigan county (3 pages), a document containing presidential findings concerning the security of the 2020 presidential election and ordering various actions (3 pages), and notes apparently indicating from whom some of the foregoing were sent (2 pages). [my emphasis]

While the (very good) DOJ filing describes that Trump is withholding documents that prior Presidents had shared, it doesn’t provide examples of the how useful this information had been in understanding past terrorist attacks.

And these documents aren’t even the potentially most damning documents, either.

Because the committee request asks for communications referring to the Proud Boys’ and election results and includes Enrique Tarrio on a list of enumerated individuals covered by the request, the response from NARA might reveal whether the Proud Boys’ leader was telling the truth when he claimed to visit the White House on December 12, or whether the White House truthfully reported that he had simply joined a tour of the building.

All documents and communications referring or relating to QAnon, the Proud Boys, Stop the Steal, Oath Keepers, or Three Percenters concerning the 2020 election results, or the counting of the electoral college vote on January 6, 2021.

From April 1, 2020, through January 20, 2021, all documents and communications concerning the 2020 election and relating to the following individuals:

[snip]

Enrique Tarrio,

[h/t miladysmama for this observation]

The attempt to withhold basic White House documents about who showed up when is not, just, an obvious attempt by Donald Trump to cover up his own crimes. It’s not just an attempt to hide how, in contrast to Dick Cheney, he did nothing as the nation’s capital was attacked.

It’s also an attempt to hide whether Trump invited the terrorists inside the White House to plot the event.

 

3 Things: Memory, Memory, the 6th of January

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

Next week the UK observes another Guy Fawkes Day, the anniversary of the failed assassination in 1605 of King James I, his privy council, and the House of Lords. Children used to recite a rhyme to commemorate the day:

Remember, Remember the 5th of November, Gunpowder, Treason and Plot

The U.S. has now survived its own Guy Fawkes Day; members of Congress, the Vice President and Vice President-elect were sheltered from a mob of insurrectionists who had been incited to rebel and obstruct congressional proceedings.

Unlike Guy Fawkes and his fellow conspirators, the conspirators and insurrectionists who temporarily disrupted Congress on January 6 and who continue their seditionist schemes will not be hung, drawn, and quartered if prosecuted and found guilty.

~ 3 ~

Marcy’s crunching away on some January 6-related posts right now, but we could use some fresh thread to tide us over to discuss recent developments related to the insurrection.

Let’s start with the unexpected heroics of the National Archives and Records Administration (NARA) which disclosed in a very early Saturday morning court filing that Donald Trump was trying to block release of 750 documents out of 1600 identified and requested by the House’s January 6 commission during its investigation — documents over which Joe Biden as the current president chose not to exert privilege.

The commission also filed a brief supporting its position that Trump as the former president does not have the authority to claim executive privilege over Trump administration documents sought by the commission.

You’ve likely read POLITICO’s report — the tl;dr version is Kyle Cheney’s Twitter thread describing NARA’s filing.

What boggles the mind is how Trump has tipped his hand as to which documents are most damning.

The cherry on top is NARA’s filing which details Steve Bannon’s role in the seditious conspiracy to incite rebellion and insurrection. Ryan Goodlaw at Lawfare wielded a highlighter for us:

Oh my. That’s just so good. It’s payback by NARA for all the crappy additional work they’ve had to do to archive the history of the Trump administration — all those tedious reconstructions of papers Trump had a nasty habit of shredding into confetti now coming home to roost.

~ 2 ~

Now add the claim reported today in Salon that Michael Flynn may have conspired to extort performance from Pennsylvania GOP elected officials in order to reseat Trump in the White House. U.S. Senate candidate for Pennsylvania, Everett Stern, who owns and operates a private intelligence company, had been contacted by persons associated with Flynn’s effort.

Stern says he’s shared information about the approach and related communications with the feds.

What’s deeply concerning about this plot is the possible involvement of foreign entities:

… Because of his intelligence background, Stern claims at least two people representing a Flynn-linked group called “Patriot Caucus” approached him earlier this year after a speech with an offer to hire his firm to gather “dirt” on officials and recruit others to assist in the plot. At one point, one of the men allegedly told Stern that they had retained the services of active intelligence officials “both domestic and foreign.” …

This sounds very much like something Flynn would do based on his past record of involvement with foreign agents.

Stern was also encouraged to achieve the ends desired using violence if necessary — “accomplish the mission even if you have to use domestic terrorism” — which he found very disturbing.

He’s recorded a YouTube video statement which sounds awkward and uncomfortable, and yet he sounds wholly legitimate in his concerns about the situation, including the lawyer for one of the intelligence targets.

Assuming Stern’s claims all check out, one might wonder if it was Bannon who set Flynn on this plot given Bannon’s relationships in PA.

UPDATE: Scott Stedman at ForensicNews tweeted Stern’s a serial fabricator. I guess we’ll let the feds sort that out. Have to ask yourself why a GOP candidate would commit political suicide with their own party and trash the cred of their private intelligence business at the same time while potentially risking federal charges for false statements.

~ 1 ~

Bannon appears to have played a more direct role in lead-up to the January 6 insurrection, along with working relationships to state-level contacts; Flynn may have been/may still be pressuring states’ elected officials using extortive tactics…

Does John Eastman’s ongoing involvement with state legislators complement their efforts?

It already looks like Eastman’s activities on and before January 6 complemented the activities Bannon and Flynn set in motion with their incitement intended to terrorize both Congress and VP Pence:

Sure would be nice to know if Bannon, Flynn, and Eastman had some overlapping communications.

Oh, and Rudy Giuliani.

Same, Jim Bourg, same. Good on you getting this photo.

~ 0 ~

ADDER: If you haven’t already read the Washington Post’s investigative expose examining the run-up to, the day of, and the aftermath of January 6, you should do so. It’s worth your time even if you’ve been following along closely as both the House January 6 commission and the DOJ investigations have unfolded. You may see things which spawn more questions than the reporting answers.

I still don’t buy the benign spin put on former acting Secretary of Defense Christopher Miller’s role, for example. There’s a reason Trump wanted him in that role after Esper resigned; the multiple times Miller failed to respond to requests for National Guard support on January 6 looks like a particular reason.

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I wonder if in the future children will have a rhyme to recall Trump’s January 6th autogolpe plot.

Memory, Memory, the 6th of January, Sedition, Insurrection, and Trump…

I certainly hope we have a few bonfires each January 6 to keep our memories fresh.

Steve Bannon Was Made to Testify, Truthfully, Once

Chuck Rosenberg has an interesting prosecutor’s analysis arguing — based on Steve Bannon’s indictment for fraud — that Bannon can never be made to testify truthfully, and so DOJ should be considering criminal contempt to send a message.

Recall, in August 2020, federal prosecutors in Manhattan indicted Bannon and others for “defraud[ing] hundreds of thousands of donors, capitalizing on their interest in funding a border wall to raise millions of dollars, under the false pretense that all of that money would be spent on construction,” according to a Justice Department press release. As a legal matter, that meant that a grand jury found probable cause to believe that several defendants – including Bannon – committed an egregious fraud. Before Bannon could be tried on those felony charges, former President Trump pardoned him.

It makes sense for Justice Department prosecutors to ask whether Bannon – accused of defrauding hundreds of thousands of donors – would tell the truth about the January 6 insurrection. And because Bannon has demonstrated his disdain for the work of the select committee, helped spread election misinformation and fanned the flames ahead of the insurrection, it seems that he might be an unwilling witness and an untruthful witness. In that case, pressuring Bannon to testify seems pointless.

The notion of letting someone off the subpoena hook because they are unwilling to testify, or because they are untruthful, or both, is distasteful. Accountability matters, before Congress and in the criminal justice system. We should expect people to come forward and tell Congress what they know, to help better understand the events leading up to that awful day and to ensure that something like that never happens again.

But some people are more interested in staging insurrections and discrediting valid elections than they are in speaking the truth. Some people might use a congressional forum not to help heal the nation, but to further sow division. In that case, pursuing civil contempt against Bannon to pressure him to testify makes little sense. But charging him with criminal contempt – punishing his defiance – sends the right message to him and others.

I’m in no position to question Rosenberg’s wisdom speaking as a prosecutor.

But the public record suggests that Bannon can be coerced to testify in damning ways. That’s what happened with the Mueller investigation, possibly assisted with Bannon’s staged testimony to the House Intelligence Committee.

Steve Bannon is known to have testified in various forms at least nine times (this post analyzes Bannon’s second Mueller interview, this post describes how he read from a White House script at his second HPSCI interview, this post describes how he inched closer to the truth, and this post includes links and analysis on the Mueller interviews liberated by BuzzFeed).

  1. January 16, 2018: Bannon did an interview with the House Intelligence Committee at which he refused to testify about the Transition and Administration and falsely claimed the campaign would have all relevant emails on Russian interference, which served to cover-up damning emails he had with Roger Stone.
  2. February 12, 2018: Bannon’s first Mueller interview largely covered obstruction; as with the HPSCI interview days later and the SSCI interview nine months later, Bannon hid his involvement in sanctions discussions during the transition.
  3. February 14, 2018: Bannon’s second Mueller interview finished obstruction topics and covered campaign related events and included some breathtaking lies about his role and knowledge of optimizing the hacked releases.
  4. February 15, 2018: After Devin Nunes shared the transcript of his first interview with the White House, Bannon did another HPSCI interview and largely read from a pre-arranged script from the White House designed to hide (among other things) his involvement in discussions about sanctions before Mike Flynn attempted to undermine Obama’s sanctions on Russia.
  5. October 26, 2018: After Mueller obtained communications proving a number of Bannon’s lies in the earlier interviews, he inched closer to the truth on obstruction and the WikiLeaks releases (including about a December 2016 meeting between Roger Stone and Trump that Trump wanted Bannon to attend as a witness), though still told incredible stories about his ties to Russia during the transition.
  6. November 19, 2018: In an appearance before the Senate Intelligence Committee, he told suspected lies that the committee referred for prosecution. [I’ve excerpted the parts of his testimony quoted in the SSCI Report here.]
  7. January 19, 2019: The content of a January 19, 2019 interview and grand jury appearance (one that took place after Mueller obtained Bannon’s HPSCI transcripts) remains entirely sealed, but he was forced to adhere to some of it at Roger Stone’s trial and Stone has recently accused Bannon of betrayal in this appearance.
  8. Unknown date (possibly July 26, 2019): A trial prep interview with DC’s AUSAs at which Bannon tried to back off his grand jury testimony.
  9. November 8, 2019: After prosecutors forced him to match his grand jury testimony, Bannon testified to speaking to Stone about the hacked emails both before and after he joined the Trump campaign.

Somehow, Mueller’s attorneys were able to get Bannon to be more truthful in that grand jury appearance, and then with it, they forced him to adhere to his more damning testimony at Roger Stone’s trial. But Stone’s continued attacks on Bannon suggest Bannon’s grand jury testimony extended beyond his trial testimony.

My guess is that Mueller’s team got Bannon to tell something approximating the truth on some topics via a range of tactics. First, Bannon originally lied about when he used his personal email on the campaign; after Mueller obtained some damning emails with Roger Stone from that email, Bannon conceded more of the truth. Additionally, Bannon clearly was playing different audiences for different purposes (for example, Republicans ensured that the entirety of the HPSCI investigation served to get Trump flunkies to tell false cover stories, and as noted, Bannon literally read from a White House issued script in his second appearance). But that likely served to alert prosecutors to what Bannon was trying to hide (and in the case of Bannon’s efforts to hide his knowledge of discussion of sanctions during the transition, Mueller actually got somewhat useful testimony from Flynn). Finally, it seems likely that prosecutors used earlier lies to coerce Bannon to tell the truth later in their investigation.

To be clear, the January 6 Select Committee doesn’t have the time to coerce some truths out of Steve Bannon, though it’s possible that DOJ could use any testimony he did offer as Mueller’s team seems to have done during their investigation, as a means to corner him about prior lies.

In any case, tough his testimony helped convict Roger Stone (after which Trump pardoned the rat-fucker), whatever truths Bannon told during the Mueller investigation were useless. The truthful bits remained sealed in an unreleased 302 and grand jury testimony, of no use to the public.

Still, the overriding lesson from Bannon’s book of laughter and forgetting is that his past lies and changing loyalties can be exploited, if you have the time to really work on him.

January 6 Defendant Kevin Creek Ends Up with a Single Assault Charge

Yesterday, DOJ charged Kevin Douglas Creek with one count of assault. The charge adds to the evidence that DOJ is letting cooperative defendants plead down without entering into a cooperation agreement.

Creek — a former Marine from Georgia — was first charged with assault of what his arrest affidavit called, “multiple officers,” and civil disorder. One of those alleged assaults included kicking a cop.

As the arrest affidavit describes (and I wrote up here), the first tip against Creek came from a hospital worker who described that he admitted his involvement in the riot when getting treated at a hospital for delayed effects from tear gas.

On January 10, 2021, a complainant reported to the FBI that on January 9, 2021 or January 10, 2021, an individual named Kevin Creek made comments while visiting Northside Forsyth Hospital about his involvement at the U.S. Capitol riot on January 6, 2021. Creek disclosed that he was tear gassed at the Capitol on January 6, 2021. Creek discussed running up the stairs of the Capitol building and attempting to get inside. Creek talked about having trouble at the door he ran to because the police were gassing individuals at his door. Creek also mentioned he was bruised from his activity at the Capitol and admitted to a long car ride to get to DC. Creek made general comments regarding always being armed but did not directly say whether he was armed at the Capitol.

Later on, the FBI released Be on the Lookout photos for Creek.

In an FBI interview with counsel on May 21, Creek seemed evasive about how he first learned about the protest and described only partly regretting his conduct at the riot.

Initially, Creek told affiant he was live streaming January 6th and posted the stream and photos on his Facebook account. Creek deleted those photos once he returned home. Creek stated he may have heard about the protest from his twitter account (handle @KevinDCreek) but stated he could not remember for certain.

When asked if Creek regretted his conduct on January 6th, he responded: “50/50”.

Creek was arrested on June 9. After he was jailed for five days, the US Attorney’s Office in Northern Georgia successfully got Creek detained pretrial; the magistrate’s order finding for detention emphasized that he had “assaulted several Capitol Police officers.”

Creek’s attorney moved for release, and Jacob Strain, the AUSA (a detailee from Utah) handling this case agreed, citing (in part) Creek’s, “significant cooperation.”

Based on the defendant’s law-abiding conduct after January 6th, his lack of criminal history, and his significant cooperation with law enforcement, the United States submits its position that conditions can be fashioned to reasonably assure the defendant’s appearance and effectively assure the safety of the community. [my emphasis]

In a hearing, it became clear that DC’s US Attorney’s office was saying Creek should be released while Northern Georgia’s was trying to enforce their District policy that those who assault law enforcement are presumptively detained (Northern Georgia would later try to override the release conditions of one of the few Black January 6 defendants, Antionne Brodnax, who moved into the District).

The thing is, there’s no sign yet of Creek’s, “significant cooperation with law enforcement.” His arrest affidavit makes it clear he went to insurrection with three others, two of whom remained with him until after 4PM.

Travel records obtained from Washington Metropolitan Area Transit Authority confirm that on January 6, 2021 at 8:15am, Creek’s credit card was used to purchase four metro cards. These metro cards were used to traveled from Rosslyn Station McPherson Sq Station at approximately 8:17 am. At 11:07 am, one metro card was used to return to Rosslyn Station from McPherson Station. The other 3 cards returned from Arch-Navy Memorial Station to Rosslyn Station at 4:37 pm. Arch-Navy Memorial Station is located about .8 miles to the U.S. Capitol.

But I’m not aware of any arrests of other people from the Atlanta area who might have traveled with Creek.

His discovery lists the body worn cameras of three officers, including Daniel Hodges.

In short, from early on, DOJ said he had provided “substantial cooperation,” using the word — substantial — usually reserved for 5K letters after a defendant has successfully completed the terms of cooperation agreement. And now, four months after his arrest, his assaults on “multiple officers” have been charged as a assault, presumably setting up a plea hearing (while I assume it’s just a coincidence, his next scheduled hearing date, December 17, is the same date as the coordinated status date for the Oath Keeper cooperators).

It’s not clear what to make of this charging decision. But the discussion around Creek’s pre-trial release seems to suggest cooperation that may explain similarly situated January 6 defendants are being charged with multiple felonies and Creek will presumably plead to a single count.

But this charging decision will have one other effect: Those, like David Judd, who claim only Portland defendants charged with assaulting cops get charges dismissed will now have to explain why a January 6 defendant who traveled across three states to attend the Trump riot will likewise have his civil disorder charge dropped.

Update: This post has been substantially corrected to reflect that this appears to be a felony. Creek was charged by information, but the charge includes physical contact that makes it a felony.

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