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Flashbacks to the 2015 Campaign

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Katy Tur at SXSW
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Several years ago, I got Mrs Dr Peterr Katy Tur’s book Unbelievable: My Front-Row Seat to the Craziest Campaign in American History. Tur had been the NBC reporter assigned to the Trump campaign in 2015 and 2016, and listening to the impeachment coverage yesterday and the coverage this morning, one episode she recounted in the book came flashing back . . .

In Dec 2015, three days before Trump announced his pledge to institute a Muslim travel ban, Trump got rattled at a rally in Raleigh NC where protesters coordinated their efforts and threw him off his game, interrupting his speech every couple of minutes from different parts of the arena. Disgusted, Trump abruptly left the podium and started shaking hands offstage, and Tur sent out a simple tweet describing what had happened.

Right before lunch the next day, Hope Hicks wrote her to say “Katy, Mr. Trump thought your tweets from last night were disgraceful. Not nice! Best, Hope.” Shortly thereafter, the media gets the word about the travel ban Trump intended to announce that night, and that becomes the big story of the day with Katy doing liveshots all afternoon. That evening, before a rally inside the USS Yorktown (an aircraft carrier-turned-museum in Charleston harbor), Trump blasted her with four attack tweets in the span of four minutes.

Tur says the rally’s specific location was a surprise, in that it wasn’t held on the carrier deck but inside the belly of the ship, with the media crowded into a pen.

Yes, we are in a pen: a makeshift enclosure made of bicycle racks and jammed full of desks, reporters, and camera equipment. We’re in the middle of the carrier, slammed against the right side wall. As usual, almost all of Trump’s supporters are white and a lot of them are looking at us, not exactly kindly. The campaign and Secret Service force us to stay inside the pen while Trump is onstage. They even discourage bathroom breaks. None of them have a good explanation for why we’re kept separate from the supporters. Are we the threat or are they?

Trump starts his rambling speech, and the crowd eats it up. Then Trump opens up on the media.

“The mainstream media,” Trump says. “These people back here, they’re the worst. They are so dishonest.”

Hoots and hollers.

And then I hear my name.

“She’s back there, little Katy. She’s back there.”

Trump then calls her a liar several times, and a third rate reporter several times as well, before pivoting to a more general attack on the media. Finally, once he’s got the crowd sufficiently whipped up, he formally announces the Muslim ban, and the crowd which she described earlier as looking at her like “a large animal, angry and unchained” went nuts.

She goes live with Chris Matthews as Trump leaves the stage, and when she’s done with that, Chris Hayes takes over and wants to keep her on the air for the lead story on his show that followed Matthews’.

[Trump] supporters are taking their time to leave. They’re still whipped up. I know someone is going to start yelling at me as soon as I start talking. So I do what I always do. I find the pinhole deep in the back of the lens and I tune everything else out.

A couple of minutes later, I’m done. The crowd that had gathered behind my live shot is gone except for a few stragglers, yelling at me. They’re five feet away, held back by those lousy bicycle racks. A Trump staffer shoos them away. MSNBC has cleared me and my bosses want [her cameraman/sound tech] Anthony and me to get out of there as quickly as we can. I don’t quite understand why until we pack up and start to head out. A Trump staffer stops me and says “These guys are going to walk you out.”

I look over and see two Secret Service agents. Thank goodness. They walk Anthony and me along the gangway back to our car. It’s pitch black and I’m nervous. We’re parked with the crowd.

Once we’re moving, I take a look at my phone. My mom has called. And called. And called. I dial her back. “Are you okay? Where are you staying? Can someone stay with you? You need security!? She is crying. And it hits me.

I’m a target.

On that day in December 2015, the security professionals of the US Secret Service recognized that Trump was dangerously inciting a mob, and stepped in to protect the target he had singled out.

On January 6, 2021, Trump again incited a mob, and this time there was no one to stop them.

Laughing in the Face of Denial

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TOPSHOT – Trump supporters engaging in healing the country at the US Capitol in Washington, DC on January 6, 2021. –  (Photo by Joseph Prezioso / AFP) (Photo by JOSEPH PREZIOSO/AFP via Getty Images)

Not this again.

From Trump lawyer David Schoen on day one of the second Trump impeachment trial:

[The House impeachment managers] tell us that we have to have this impeachment trial, such as it is, to bring about unity. But they don’t want unity, and they know this so-called trial will tear this country in half, leaving tens of millions of Americans feeling left out of the nation’s agenda as dictated by one political party that now holds the power in the White House and our national legislature. But they are proud Americans, who never quit getting back up when they are down and they don’t take dictates from another party based on partisan force-feeding. This trial will tear this country apart, perhaps like we have seen only once before in our history.

*sigh*

Long ago, as a young pastor, a couple came to me about concerns with their marriage. The husband had slept with someone else, and when his wife threatened to file for divorce, they came to me together for advice. After some pleasantries at the beginning of the conversation, the tone quickly shifted. Filled with righteous indignation, the husband said “She’s going to file for divorce and break up our family! Whatever happened to forgiveness? Tell her she can’t do that!”

I laughed out loud.

Not a chuckle, not a single snort, but a good 15 seconds of laughter. (I said I was young.) They both looked at me in absolute shock. When I quelled my laughter, I said “*She* is going to break up your family? Please. *You* broke up the relationship when you slept around. That relationship is dead. You have to decide if you are willing to take responsibility for that and make the effort to repair it, or if you want to live in denial that breaking your marriage vows wasn’t that big a deal and sleeping around really didn’t hurt anyone.”

This was met with silence, so I plunged on.

Still speaking to the husband (but with the wife listening closely), I said “You don’t get to decide the terms of how she forgives anyone. Forgiveness doesn’t mean everything goes back to the way it was. It means that she quits seeing you as a monster, and quits letting the pain you caused her continue to govern her life. If she forgives you, it doesn’t automatically mean that you two will stay married. It just means she is done with letting what you did continue to hurt her. If you want this relationship to be healed and this marriage to be rebuilt, that starts with honesty, not denial. Honesty about what happened, honesty about how damaging and painful it was, and honesty about what you are or are not willing to do going forward.”

No, that husband was not David Schoen — but in listening to Schoen yesterday, the two of them sure sound a lot alike. The more Schoen and the defenders of Trump talk about unity and moving on without acknowledging anything about Trump’s role in the insurrection, the more they show they have no interest in unity or healing.

But we already knew that.

In one of my former congregations, I had a parishioner who was a psychologist who worked with men who had been convicted of child abuse, and the two of us had a number of long conversations around abuse and denial. When someone is accused of child abuse, my parishioner told me, he would see the same dynamic play out with each one. First, they deny that the abuse happened. “I didn’t do it!” When presented with evidence that they did indeed do it, the denial shifts to avoiding judgment: “OK, but it’s no big deal. No one got hurt. She/he came on to me. He/she had it coming. You have no right to judge me for that.” When that doesn’t work, denial pulls out the big trump card to avoid any consequences: “You have to forgive me!”

Perpetrators of abuse turn to denial because if there are consequences to their actions, something will have to die – their image of themselves, their relationships with others, and more. Denial is how they hope that nothing in their lives will have to change, with no consequences for their damaging actions.

Honesty, on the other hand, is where perpetrators of abuse turn if they are truly interested in healing and moving on. From everything I heard yesterday, the abusers and their enablers have no interest in healing. Power? Absolutely. Healing? Not so much.

This trial will not tear this country apart. Trump has already torn it apart.

The question now is whether the Senate wants to honestly acknowledge that reality and begin to deal with it by holding Trump accountable, or if they want to remain in denial and encourage the tear in our country to continue growing.

 

Accused Insurrectionist Thomas Caldwell Claims to Have Top Secret Clearance

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Yesterday, Thomas Caldwell — the man accused of being part of an Oath Keeper conspiracy on January 6 — submitted a motion fighting detention. In it, he claims all the accusations against him are false, there’s no evidence that he breached the Capitol (presumably based on certainty that his wife, who was allegedly with him, won’t testify to that fact), and that his bad back prevents him from doing things like walking into the Capitol.

The Oath Keepers have a reputation of ordering underlings to do their dirty work, and that may be what Caldwell is claiming here.

It is noteworthy that despite reports of over 100,000 photo and video recordings of the incidents on January 6, 2021, the Government has not identified and photo or video that shows Caldwell in the U.S. Capitol Building, on the grounds, after overcoming any barrier or other evidence of restriction, in the vicinity of any damaged property, or in any chamber of Congress. Further, the Government has not identified any time, place, or specific content of any alleged agreement that Caldwell alleged participated in that would meet the definition of a conspiracy.

But the more interesting move is — in an effort to suggest his military background means he wouldn’t engage in a conspiracy with a militia that focuses on recruiting former military — Caldwell’s claims to retain (still!) clearance.

After retiring from the Navy, he worked as a section chief for the Federal Bureau of Investigation from 2009-2010 as a GS-12. He also formed and operated a consulting firm performing work, often classified, for U.S. government customers including the U.S. Drug Enforcement Agency, the Department of Housing and Urban Development, the U.S. Coast Guard, and the U.S. Army Personnel Command.

What classified work and military experience does HUD require?

In another case where an insurrectionist had Top Secret clearance, DOJ pointed to that as reason why the person should be detained.

In any case, what is clear is that Caldwell believes Congress is full of traitors because they followed the Constitution, and he advocated similarly storming Capitols around the country.

Even with his bad back.

In His Impeachment Defense, Trump Cites Mike Pence Admitting Trump Made an Unconstitutional Demand

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Eleven pages into his 75-page impeachment defense, Trump makes this claim:

President Trump did not direct anyone to commit lawless actions,

In context, he’s speaking about his speech before the riot, claiming that his invocation that his mobsters “fight” didn’t mean he wanted them to fight illegally. His defense only addresses the meaning of that word, “fight,” in his speech, while treating impeachment over and over as akin to the passage of a law restricting First Amendment protected speech and not the political act that impeachment is.

But this brief, like in the 14-page answer brief he submitted last week, barely addresses one of the times he quite clearly did direct people to commit lawless action, first, when he called Brad Raffensperger and asked him to find him votes that didn’t exist.

The article also discusses in passing other “statements” of Mr. Trump as well as a telephone call to the secretary of state of Georgia.

[snip]

The allegation that Mr. Trump should be convicted for “incitement of insurrection” based upon the telephone call to the Georgia secretary of state rests on even shakier ground. The allegations of “threats of death and violence” come not from Mr. Trump at all; they come from other individuals from the internet, not identified (nor identifiable) in the House Trial Memorandum, who took it upon themselves to make inane internet threats, which were not urged or “incited” by Mr. Trump in any way shape or form.150 Examining the discussion with the Georgia secretary of state under the standard of “incitement,” leads to the same conclusion as the January 6, 2021 statements of Mr. Trump: there is nothing said by Mr. Trump that urges “use of force” or “law violation” directed to producing imminent lawless action.151

More strikingly, given the greater length of this brief, Trump again completely ignores a key part of the article of impeachment against him: his actions targeting Mike Pence, both his demand that Pence commit an unconstitutional act by throwing out the votes of key swing states, and his comments that specifically riled up the crowd against Pence, even after the rioters started looking for him at the Capitol to assassinate him.

Instead of addressing the actions he took that got Pence targeted for assassination, Trump mentions Pence only in the context of discussions about the 25th Amendment.

The very next day, Speaker Nancy Pelosi and Senate Democratic Leader Chuck Schumer called on Vice-President Pence to invoke the 25th Amendment concluding – without any investigation – that Mr. Trump incited the insurrection and continued to pose an imminent danger if he remained in office as President.12

[snip]

First, in an attempt to usurp Constitutional power that is not in any way hers, the Speaker demanded that Vice-President Michael Pence or the White House Cabinet invoke the 25th Amendment, threatening to launch an impeachment proceeding if they refused. Four days later, on January 11, 2021, an Article of Impeachment was introduced, which charged President Trump with “incitement of insurrection” against the United States government and “lawless action at the Capitol.” See H. Res. 24 (117th Congress (2021-2022). The Speaker made good on her extortionate threat.

[snip]

After the Article was introduced, Speaker Pelosi again gave Vice President Pence an ultimatum: either he invokes the 25th Amendment within twenty-four hours or the impeachment proceedings would proceed. Vice-President Pence responded in a letter to Speaker Pelosi the following day stating that he would not allow her to usurp constitutional authority that is not hers and extort him (and by extension the Nation) to invoke the 25th Amendment because he believed to do so would not “be in the best interest of our Nation or consistent with our Constitution.”29 Vice-President Pence also noted that Speaker Pelosi was being hypocritical, as she had previously stated that in utilizing the 25th Amendment, “we must be ‘[v]ery respectful of not making a judgment on the basis of a comment or behavior that we don’t like, but [rather must base such a decision] on a medical decision.”30

I suspect Trump’s lawyers will try to defer any questions about Trump’s attacks on Pence by suggesting that Pelosi’s decision to impeach because Pence didn’t invoke the 25th Amendment is just like Trump’s incitement of violence targeted at Pence. With their use of the words, “usurp” and “extort,” Trump’s lawyers grossly overstate the force of language Pence himself used to compare the two:

Last week, I did not yield to pressure to exert power beyond my constitutional authority to determine the outcome of the election, and I will not now yield to efforts in the House of Representatives to play political games at a time so serious to the life of our Nation.

But there are several problems with this: Congress was already intent on impeaching Trump for his actions before the request that Pence intervene. More importantly, even in Pence’s treatment comparing these two, he calls one — Trump’s demand — unconstitutional but the other — Pelosi’s request — a “political game.”

So in one place in his impeachment defense, Donald Trump’s lawyers claim, “President Trump did not direct anyone to commit lawless actions.” Elsewhere, however, they cite a letter in which Mike Pence says he did, that he made a demand, “beyond [his] constitutional authority.”

And with this apparent effort to deflect a key accusation against him, Trump entirely ignores the specific, targeted action he used to lead the mob to attempt to assassinate his Vice President.

The Insurrection Affidavits Don’t Show Where the Insurrection Was Organized

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The normally very rigorous Thomas Brewster has a piece purporting to fact-check Sheryl Sandberg’s claim, made days after the January 6 insurrection, that the insurrection wasn’t organized on Facebook.

“I think these events were largely organized on platforms that don’t have our abilities to stop hate and don’t have our standards and don’t have our transparency,” said Sheryl Sandberg, Facebook chief operating officer, shortly after the Capitol Hill riots on January 6.

The piece has led both bad faith and good faith actors to grasp on the story to claim that Facebook is responsible for the violence.

Brewster purports to measure that by seeing how many mentions appear in the charging documents for the 223 people included on GWU’s list of arrestees.

But a few paragraphs later, Brewster admits he’s not measuring on what platform the riot was organized, but instead which was most popular among rioters.

Whilst the data doesn’t show definitively what app was the most popular amongst rioters, it does strongly indicate Facebook was rioters’ the preferred platform.

Even that is not proven (though it may well prove to be true), but obviously which platform is most used among rioters to boast about the riot is a very different question than on which platform (if any) the insurrection was organized.

Here’s why:

  • At least half the existing affidavits are a measure of which riot attendees were most likely to be outed and how
  • Expect parallel construction
  • There are a lot of dangerous rioters who’ve not yet been charged
  • The currently accused in no way represent all the known people who might be considered organizers of the riot or the larger operation
  • The existing affidavits are no measure of what platforms actual organizers used to organize

At least half the existing affidavits are a measure of which riot attendees were most likely to be outed and how

The police made just a handful of arrests on January 6, with the biggest component being curfew violators who did not even provably enter the Capitol (and so those non-federal cases should not be included in the analysis of rioters, as Brewster did).

In the four and a half weeks since the riot, the cops have engaged in a kind of triage, arresting those whom they could easily identify and then, over time, prioritizing those who — from video evidence of the insurrection — appeared to have committed more dangerous crimes. That means in the days after the insurrection, arrests largely focused on the people who appeared the most outlandishly stupid in videos, those whose own social networks of family, work acquaintances, and high school friends disapproved of their participation in the riot and so called the FBI with a tip, or those who identified themselves in media interviews (which often led to family, work acquaintances, and high school friends to then alert the FBI).

To understand the affidavits, it’s important to realize that any person who entered the Capitol without a legitimate purpose on January 6 (that includes a number of people who videoed the event but had no media credentials) were committing two crimes, both tied to it being the Capitol. So all the FBI would need to charge someone is to prove that they entered the building.

About half the current arrestees were charged with just these trespassing crimes, yet many of these people were among the first arrested. These people are in no way the organizers of the riot, and many of them are just Trump supporters who were caught up in the crowd. Some even credibly described trying to de-escalate the situation (including one such guy who got arrested because he had the misfortunate to show up in videos of the guy who stole Pelosi’s lectern).

The measure of how these people were arrested is quite often a measure of the fact that they shared their memories of the day or were caught by others who did. And to the extent that this happened on Facebook, it likely happened because Facebook is the platform where people have their broadest social networks, making it more likely that a lot of people who don’t sympathize with the riot would have witnessed social media content talking about it. Facebook is where ardent Trump supporters still share networks with people who vehemently oppose him.

In other words, in this initial arrest push, the people who bragged on Facebook were among the most likely to be arrested precisely because the network includes a broader range of viewpoints. It’s a measure of reach — and the political diversity of that reach — and not a measure of the centrality of the platform to the planning or violence.

Expect parallel construction

As noted, in the weeks since the insurrection, some agents at the FBI have obviously shifted to a reverse approach: rather than arresting those against whom tips came in from aggrieved ex-wives and people who were owed money, the FBI started to identify which rioters were the most dangerous and prioritize figuring out who they were.

One type of more dangerous rioter would be those with institutional ties that lead the FBI to believe there might be something more going on. But these are just arrest affidavits, which the FBI is acutely aware will be publicly scrutinized. As every single one of them say, they don’t reflect the totality that an Agent might know about the person. And in those cases, we should expect the FBI to parallel construct what they know about people and how they came to know it.

Social media is a wonderful way to do that.

And it does seem that the FBI relied on social media to establish probable cause for such people. Take the Lebanese-born woman who started engaging in the 3% community in November, which the FBI cites to Facebook. Or consider how the FBI pretends they did not know who Nick DeCarlo was until he showed up in Nick Ochs’ Twitter feed. Both rely on social media (in the latter case, one piece of evidence is something researchers found on Telegram and posted on Twitter, and so should be chalked up in the “uses Telegram” column).

But measuring how the FBI parallel constructed other knowledge is not a measure of what social media platforms people primarily use.

There are a lot of potentially dangerous rioters who’ve not yet been charged

As noted, one way the FBI shifted focus after the initial arrests of people identified by their disapproving family members was by identifying people involved in assaults — first of officers (designated by AFO), and then the media (designated by AOM) — and trying to identify them, in part through the use of Wanted posters (BOLO).

To date, the FBI has released 223 BOLOs, of which 40 precede the shift of focus to those involved in assault (and so include people who caught attention for another reason, such as the use of a Confederate or Nazi imagery). The FBI has arrested around 35 people identified in BOLOs, thus leaving around 190 people that the FBI has identified to be of particular interest based off video images, that they have not yet arrested.

For what it’s worth, I suspect that the FBI has identified a goodly number of these people, and may even have sealed complaints against some of them but is holding off on an arrest to gather more evidence. That is, they can arrest them now, but would prefer not to until they shore up their case. In a number of cases where people were identified off of BOLOs, the people turned themselves into the FBI but denied any physical contact was anything but a love tap (here’s one example, but there are others), potentially making it harder to prosecute for the violence.

If and when these people are identified, they may well prove to have used Facebook. But thus far, this group of people has shown better operational security and (unsurprisingly) a greater likelihood to flee or to destroy evidence.

But whatever their Facebook use, when counting the numbers of the 800 people who committed a trespass crime on January 6 by entering the Capitol, of which 200 have been arrested, it’s worth noting that almost another 200 — some of the greatest concern — have not been provably identified by bragging Facebook posts yet.

The currently accused in no way represent all the known people who might be considered organizers of the riot or the larger operation

Thus far, the government has filed the bare outlines of conspiracy charges against both the Oath Keepers (who spoke of a plan they had trained for) and the Proud Boys (who moved in obviously coordinated fashion communicating via radio on January 6). But those conspiracy charges currently include just three and two people, respectively (with a sub-conspiracy charged against two more Proud Boys).

According to claims quoted in charging documents, there were anywhere from 30 to 65 Oath Keepers involved in the riot (including a busload from North Carolina). There are at least three other key Proud Boys that have not been arrested for the riot (Enrique Tarrio, of course, was arrested days earlier for a different racist attack), and about half of those that have were charged with just the trespassing crimes.

In general, these people are not currently identified in BOLO posters.

In other words, this is a set of people — perhaps another 40 on top of the 190 outstanding BOLO figures — that the FBI likely considers key suspects.

And that’s just the organizers of the riot. That doesn’t include James Sullivan, who appears to have been in communication — via text — with Rudy Giuliani.  It doesn’t include people like Ali Alexander and Rudy and possibly Roger Stone who would tie the riot to the larger effort to delay the vote (which is the object of both the Oath Keeper and Proud Boys conspiracy). We know from Stone’s prosecution, at least, that he was de-platformed long ago and learned to use encrypted apps by August 2016.

In any case, before you can make claims about what platforms were used to organize the insurrection, you first need to identify the universe of people believed to have organized it. Right now, perhaps as few as 20 of the 200 people who’ve been arrested should be considered leaders of it, and there are probably at least another 40 who might be considered organizers of the riot itself who have not been arrested yet.

The existing affidavits are no measure of what platforms actual organizers used to organize

To be sure, both of the groups identified in conspiracies (and Three Percenters) made use of Facebook. As Brewster cited, accused Oath Keeper conspirator Thomas Caldwell posted updates to Facebook during the siege, and the co-conspirators did use Facebook to communicate both publicly and privately before the event. Among those referencing the Proud Boys in affidavits, Andrew Ryan Bennett uploaded video to Facebook,  Gabriel Garcia uploaded video to Facebook, and Daniel Goodwin used Instagram and Twitter. As noted above, Nick Ochs had a campaign Twitter account.

But some of the more substantive public communications from both groups, including important communications from before the riot, was posted on Parler. And both groups used other means — Zello for the Oath Keepers and radios for the Proud Boys — to communicate operationally during the day.

With the Proud Boys, in particular, Facebook and Twitter have long tried to exclude them from the platform, both because their speech violated platform guidelines but also because after expulsion the group tried to bypass that expulsion.

Importantly, aside from some quotations from Jessica Watkins’ Zello account and those Facebook messages, the FBI hasn’t shown what it has of operational communications between these groups, and it’s unlikely to do so, either, until trial. The FBI is not going to share how much it knows (if anything) about the operational contacts of these groups until it has to. Which makes any conclusions drawn from what it is willing to show of questionable validity.

Don’t get me wrong: I’m happy to argue that Sheryl Sandberg is one of a number of Facebook executives who should be ousted. I agree that Facebook has fostered right wing violence, not least with the settings of its algorithms (which is the opposite of what Glenn Greenwald wants the Facebook problem to be). Because it has such wide breadth, it is a platform where people not already radicalized might get swept up in disinformation.

But I know of little valid evidence yet about Facebook’s role in organizing the insurrection, nor is there likely to be conclusive evidence for some time yet.

Update: Changed language to describe Tarrio’s alleged vandalism of a traditionally black church to make it clear he is not accused of assaulting another person.

Another Violent Foot Soldier Radicalized by Donald Trump

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In this post, I noted that many of the people who engaged in the most violent action on January 6 were not known to be part of one of the organized militia groups, which seem instead to have set off and channeled the violence of others. I described how the only explanation that Emanuel Jackson gave for twice assaulting cops was that after attending Trump’s rally, he followed the crowds to the Capitol and beat up several cops, including with a baseball bat, in order to prevent the certification of the vote.

In updates, I noted how the son of the guy whose dad was pictured carried a Confederate flag through the Capitol punched out windows because, after attending the rally, he followed someone yelling directions in a bullhorn (which could be Alex Jones) and then followed the instructions of someone else to clean out the glass in a window. And a former Marine beat up several cops after he, “got caught up in the moment” after marching down from the Ellipse.

The charging documents from the recent arrest of Kyle Fitzsimons provides another example of someone who got inspired by Trump and went onto first grab and then charge the cops trying to protect the Capitol.

The affidavit quotes from a local article, in which he described being “asked” by President Trump to go give weak Republicans the kind of boldness they needed to take back the country.

“The speeches from the morning were overtly preaching the election was not over, there was a path to victory through decertification, there was a plan to delay the certification by the House and Senate and then state legislatures would convene and (certify) the right result.” FITZSIMONS stated that as the rally at the Ellipse ended, the crowd was asked by President Trump to walk to the Capitol to “give our Republicans, the weak ones … the kind of pride and boldness that they need to take back our country.”

In another interview he described that “Trump is a lion leading an army of lambs through ‘lawfare'”

After the rally he went and changed into his work clothes, a butcher’s uniform, then walked to the Capitol and fought the cops until he got hit in the head with a police baton.

Two witnesses who know him describe that before January 6, he was known for his right wing beliefs, his gun ownership, and his racism, but not for being a violent person.

Yet on January 6, after hearing Trump’s request to go to the Capitol and embolden other Republicans to steal an election, he did so, violently.

Here’s my running list of the people who, as of yesterday, had been charged with intimidating or assaulting police.

  1. Daniel Page Adams, whose arrest affidavit describes engaging in a “direct struggle with [unnamed] law enforcement officers” (his cousin, Cody Connell, described the exchange as a “civil war”).
  2. Zachary Alam, who pushed cops around as he was trying to break into the Speaker’s Lobby.
  3. Matthew Caspel, who charged the National Guard.
  4. Scott Fairlamb, who was caught in multiple videos shoving and punching officers (one who whom is identified but not named); Cori Bush has said she was threatened by him last summer.
  5. Kyle Fitzsimons, who charged officers guarding the doorway of the Capitol.
  6. Alex Harkrider, who after being filmed fighting with police at the door of the Capitol, posted a picture with a crowbar labeled, “weapon;” he was charged with abetting Ryan Nichols’ assault.
  7. Michael Foy, a former Marine who was caught on multiple videos beating multiple cops with a hockey stick.
  8. Robert Giswein, who appears to have ties to the Proud Boys and used a bat to beat cops.
  9. Emanuel Jackson, whom videos caught punching one officer, and others show beating multiple officers with a metal baseball bat.
  10. Chad Jones, who used a Trump flag to break the glass in the Speaker’s Lobby door just before Ashli Babbitt was shot and may have intimidated three officers who were pursuing that group.
  11. Edward Jacob Lang, who identified himself in a screen cap of a violent mob attacking cops and who was filmed slamming a riot shield into police and later fighting them with a red baseball bat.
  12. Mark Jefferson Leffingwell, whom a Capitol Police officer described in an affidavit punching him.
  13. Patrick Edward McCaughey III, who was filmed crushing MPD Officer Daniel Hodges in one of the doors to the Capitol.
  14. Ryan Nichols, who was filmed wielding a crowbar and yelling, “This is not a peaceful protest,” then spraying pepper spray against police trying to prevent entry to the Capitol.
  15. Dominic Pezzola, a Proud Boy who stole a shield from cops.
  16. Ryan Samsel, who set off the riot by giving a cop a concussion; he appears to have coordinated with Joe Biggs.
  17. Robert Sanford, who was filmed hitting Capitol Police Officer William Young on the head with a fire extinguisher.
  18. Peter Schwartz, a felon who maced several cops.
  19. Barton Wade Shively, who pushed and shoved some police trying to get into the Capitol, punched another, then struck one of those same cops later and kicked another.

Raskin’s Gambit

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Until today, the conventional wisdom was that Senate Republicans would hide behind their claim that it was not constitutional to try Donald Trump on the single count of impeachment for inciting an insurrection, and Democrats would lose badly in an effort to convict Donald Trump. That’s still likely.

But Donald Trump’s inability to follow good legal advice and Jamie Raskin’s exploitation of that weakness may change that.

In response to the opening brief Trump’s lawyers submitted earlier this week, in which Trump went beyond a claim that the entire trial was unconstitutional and feigned responses to the actual facts alleged, Lead Impeachment Manager Raskin invited Trump to testify.

Two days ago, you filed an Answer in which you denied many factual allegations set forth in the article of impeachment. You have thus attempted to put critical facts at issue notwithstanding the clear and overwhelming evidence of your constitutional offense. In light of your disputing those factual allegations, I write to invite you to provide testimony under oath, either before or during the Senate impeachment trial, concerning your conduct on January 6, 2021. We would propose that you provide your testimony (of course including cross-examination) as early as Monday, February 8, 2021, and not later than Thursday, February 11, 2021. We would be pleased to arrange such testimony at a mutually convenient time and place.

Presidents Gerald Ford and Bill Clinton both provided testimony while in office–and the Supreme Court held just last year that you were not immune from legal process while serving as President–so there is no doubt you can testify in these proceedings.

[snip]

If you decline this invitation, we reserve any and all rights, including the right to establish at trial that your refusal to testify supports a strong adverse inference regarding your actions (and inaction) on January 6, 2021.

It’s not clear which specific claims Raskin has in mind. The letter specifically asks about January 6 and not Trump’s claims he fashions as “Answer 4,” that he didn’t lie about winning the election — though Trump reiterates that claim in Answer 6, claiming that he denies that his January 6 expression of “his opinion that the election results were suspect … is factually in error.” Still, he presents that as an opinion, not a knowingly false claim. Then there’s a claim about his January 2 call to Brad Raffensperger, so unrelated to the January 6 questions mentioned in Raskin’s letter, but which would nevertheless make great fodder for questioning under oath.

The more factual claims about January 6 that Trump made include:

  • It is denied that President Trump intended to interfere with the counting of the Electoral votes. [Answer 6]
  •  It is denied he threatened the integrity of the democratic system, interfered with the peaceful transfer of power, and imperiled a coequal branch [sic] Government. [Answer 8]
  • To the extent there are factual allegations made against the 45th President of the United States contained in Article I that are not specifically addressed above, the allegations are denied and strict proof at time of hearing is demanded. [Answer 8]

To some degree, for Raskin’s gambit to work, which false claims in specific he has in mind don’t matter.

But given that Trump’s response entirely blew off the allegations about Mike Pence in the article of impeachment, which include factual observations about Trump riling up the mob against Pence in particular, Trump has effectively, with the language in the last bullet above, denied an attack on Pence which goes well beyond any First Amendment speech.

As I said, though, it doesn’t matter, because the gambit (even ignoring that Trump is constitutionally incapable of telling the truth, under oath or not) is about forcing Trump to adopt an impossible position. The safest response to this letter would be to refuse, and let the House assume Trump’s entire claim to offering any factual response is false (as it is). But because Trump is Trump, he’s likely to choose between two more dangerous options:

  • Invoke the Fifth, thereby admitting that his First Amendment speech might expose him criminally
  • Testify, thereby undoubtedly setting up sworn lies

The former will get him in trouble for any civil suits arising out of the January 6 insurrection, the very thing that (per reports) Trump was trying to avoid with his decision not to self-pardon.

The latter will set Trump up for (at best) a perjury prosecution and at worst more substantial criminal prosecution based on his responses. Plus, it might pave the way for Mike Pence testimony, which would be compelling.

And by inviting Trump this way, without a subpoena, Raskin avoids all the drama Lindsey Graham has been trying to set up about contentious votes on witnesses. It is Trump’s choice, with no coercion.

Trump got through the Mueller investigation and Impeachment 1.0 by successfully avoiding something like this. It may finally be that the third time’s a charm.

Update: Trump has responded, claiming without legal citation that there is no negative inference in this proceeding.

DOJ Moves Towards Parallel Conspiracy Prosecutions of the Oath Keepers and Proud Boys

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As noted, on January 27, DOJ indicted three Oath Keepers, Thomas Edward Caldwell, Donovan Ray Crowl, and Jessica Marie Watkins, in a conspiracy to hinder Congress’ certification of the Electoral College vote. FBI seems to be working on identifying the other people who were marching in formation with Watkins and Crowl on January 6, as well as building out a larger prosecution team (which includes, among others, one of the women who worked the Russian side of the Mueller cases).

Meanwhile, yesterday, DOJ announced the arrest of yet another Proud Boy — Ethan Nordean — and the indictment of two other Proud Boys, Nicholas DeCarlo and Nicholas Ochs, in a conspiracy to hinder Congress’ certification of the Electoral College vote. Of particular note, in DOJ’s request for detention with Nordean, they invoked the list of crimes that can merit a terrorist enhancement. (h/t FM)

They don’t say which of the terrorist enhancement crimes they have in mind, but several are possibilities:

  • 351 (relating to congressional, cabinet, and Supreme Court assassination and kidnaping)
  • 844(f)(2) or (3) (relating to arson and bombing of Government property risking or causing death)
  • 930(c) (relating to killing or attempted killing during an attack on a Federal facility with a dangerous weapon)
  • 1114 (relating to killing or attempted killing of officers and employees of the United States)
  • 1203 (relating to hostage taking)
  • 1751(a), (b), (c), or (d) (relating to Presidential and Presidential staff assassination and kidnaping)
  • 2332f (relating to bombing of public places and facilities)

Update, 2/6: The detention memo for Nordean explains they’re using his 1361 charge to apply the terrorism enhancement.

That rebuttable presumption applies to Defendant because 18 U.S.C. § 1361 is specifically enumerated in 18 U.S.C. § 2332b(g)(5)(B) and carries a maximum sentence of ten years in prison where, as here, damage or attempted damage to property exceeds $1,000.

All of which is to say the government is treating Nordean’s arrest like he’s part of a terrorist group.

As suggested above, the DeCarlo and Ochs conspiracy indictment parallels the one obtained against the Oath Keepers.

The Object of the conspiracy is the same: “to stop, delay, and hinder Congress’ certification of the Electoral College vote.” And several of the overt means are the same: agreeing to participate in a January 6 operation, taking planning steps together, and forcibly storming past the police barricades to enter the Capitol.

The conspiracy indictment of Dominic Pezzola and William Pepe effectively charged they conspired to achieve one of the means in the DeCarlo and Ochs indictment, to,

obstruct, influence, impede, and interfere with law enforcement officers engaged in their official duties in protecting the U.S. Capitol and its grounds during the demonstrations planned for January 6, 2021.

The government has not, yet, charged Pepe with 18 USC 1512, obstructing an official proceeding (meaning the vote certification).

Meanwhile, the Nordean complaint cites the charges against Pezzola, Joe Biggs, and Robert Gieswein, tying all their actions together without (yet) claiming an agreement to act together.

But you can see where this is heading: to two parallel conspiracy prosecutions, each sharing the same object — to halt the vote certification — and each also sharing several of the same overt acts.

These conspiracy indictments are, for now, based off personal communication between the co-conspirators, for example the Zello communications that Watkins sent. But as I noted in the Oath Keepers post, there is someone with whom both these groups agreed with and pursued some of the same steps as: Donald Trump. These conspiracy indictments may build little by little based off what each group has done among themselves, but the framework for a much broader conspiracy is already in place.

The January 6 Investigation Remains in an Early Stage

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A lot of people are talking about this report comparing the demographics of the January 6 arrestees with those of past right wing extremist arrests. The report has interesting data — most notably showing that those arrested after January 6 were disproportionately from counties that Biden won.

That said, the methodology behind the comparison is flawed because what would get someone arrested at a normal white supremacist event and what would get them arrested in the wake of January 6 are totally different.

Partly as a way to explain why — and to answer some questions I keep getting — I’d like to talk about what we know of the investigation.

Chain-of-command

First, let’s review who is in the chain-of-command of the investigation.

The investigation is being conducted out of FBI’s Washington Field Office, overseen by Steven M. D’Antuono, and the DC US Attorney’s Office, led by Acting US Attorney Michael Sherwin. Sherwin was Jeffrey Rosen’s hand-selected replacement for Bill Barr flunky Timothy Shea (who in turn replaced Jesse Liu, who did a good job and so was ousted), but unlike Shea (and Barr and Rosen), Sherwin is a career prosecutor with a background on national security cases. And while Sherwin oversaw some politicized shit (notably the later parts of the Mike Flynn gambit), others were involved in the day-to-day, which means, in part, that Sherwin doesn’t necessarily know about the altered documents and whatnot.

In any case, Ken Kohl, a fairly problematic career prosecutor in DC who was personally involved in the Flynn corruption, hasn’t been seen in any of the statements or court filings since the first days of the investigation, when he claimed the investigation wouldn’t incorporate those who incited the attack.

There might have been a concern in the first weeks of investigation that Trump’s dead-enders would limit it. But at this point, such a move would be reported on. Moreover, the top political appointee in DOJ until Merrick Garland or Lisa Monaco are confirmed is John Carlin, who served as Obama’s National Security Division head for the last two years of his Administration. He was a long-time prosecutor himself and would be as comfortable overseeing a terrorism investigation like the DC one as Monaco will be.

It’s unclear when Biden will get around to replacing Trump’s US Attorneys, including Sherwin. But until that time, every single indictment of a Trump terrorist will be signed by a Trump appointee, which may undercut any claims of politicization. And the pace or focus of the investigation is unlikely to change when Garland is finally confirmed (which might be just days away in any case). The major thing he might approve would be the inclusion of Trump or any other political target, and possibly of a broader seditious conspiracy case — but the latter, at least, already seems likely under Sherwin’s supervision.

The prosecution teams are still falling into place right now. Among the prosecutors for the Zip-Tie guy, though, is one of the people who prosecuted Maria Butina. Among the prosecutors for the Oath Keeper conspiracy is one of the women brought into the Mueller team to deal with the Russian defendants.

Triage

I get asked a lot whether the investigation will pick up once Garland is confirmed.

No.

One reason it won’t is because the investigation is already moving at a remarkable clip; even without certain bottlenecks due to COVID (such as limited grand jury time and the difficulties created by dial-in court hearings), it would be hard to investigate much more quickly.

I think people may misunderstand that because of the steady clip of arrests since the attack, with around 178 of around 800 people who were in the Capitol during the attack (181 have been charged so far, but that includes a few people who issued threats but didn’t make it into the Capitol).

DOJ has said that they’ve been mostly arresting the people who mugged on social media bragging about the insurrection. What DOJ did in these first weeks, then, is to focus on all the people whose Facebook friends tipped off the FBI or who did interviews or who otherwise came to easy attention. Many of those people (about half of all the people who’ve been arrested so far) have been charged with just the two trespassing statutes that everyone who stepped foot in the Capitol got charged with, 18 USC 1752 and 40 USC 5104. This is one reason why the study on demographics is not a sound comparison: because literally everyone who stepped in the Capitol committed that trespassing crime, and many of the people who did will never be charged with anything but misdemeanor trespassing charges.

Those people may have loathsome beliefs or be adherents to a cult (whether QAnon or Trump). But it seems that if people just rushed in with the crowds and didn’t damage anything and didn’t assault cops and weren’t privy to or instrumental in a plan to disrupt the vote, it’ll end there, with misdemeanor charges.

That said, as I laid out here, DOJ seems to be adding, at a minimum,  18 USC 1512(c)(2) charges for interfering with the certification of the vote to a subset of those initially charged with just the misdemeanors. They seem to be doing so with those who had a bigger role in delaying the vote count. If that’s all these people are charged with (a number are also charged with property damage or assault) and they don’t have a record, they might be facing 41 to 51 months in prison. I imagine there are some borderline people whom DOJ is suggesting should plead now to those misdemeanor charges to avoid the felony, and I imagine the felony charge(s) will be used to get some people to cooperate and to support keeping others in jail pre-trial.

Already for these defendants, we may not discover what DOJ saw that led them to believe the person merited more than a trespassing charge. In most cases, the FBI will be obtaining more legal process to understand better why a person showed up at the Capitol, what they did there, and what network got them to go to the riot in the first place, as well as any substantial ties to that network.

In other words, it’s likely the 1512 charge is itself a midway point, perhaps a terminal charge for those who were conspiring with others to overturn democracy, perhaps a bookmark as DOJ conducts further investigation.

Sealed investigative steps

Meanwhile, the FBI is conducting further investigation of the right wing networks that planned this attack, steps we’re just seeing hints of, such as with this report on a search of the homes of two people who organized the January 5 rally (and I’ve heard of a few more that haven’t been publicly reported).

The FBI recently raided the homes of two men who sponsored an invective-laced rally near the US Capitol a day before the deadly insurrection, the first known search warrants involving people who organized and spoke at rallies preceding the attack.

[snip]

FBI spokeswoman Laura Eimiller confirmed that federal agents executed search warrants last week at two properties in Orange County, California, which public records indicate belong to Russell Taylor and Alan Hostetter. The two men run the American Phoenix Project, which co-sponsored a pro-Donald Trump rally near the Supreme Court on January 5, one day before the attack.
Neither man has been charged with any crimes.
Footage of the rally shows the men spewing militant vitriol: Hostetter told the crowd to prepare for “war tomorrow” against “vipers” in Congress who refused to nullify President Joe Biden’s win. Taylor said, “We will not return to our peaceful way of life until this election is made right.”

With anyone who didn’t make it inside the Capitol, the government would need to do more to charge them. And for some networks (for example, we know there were around 40 Oath Keepers at the rally, yet only 3 have been charged), the government may want to wait before it starts charging one after another person. It may pick and choose which members of a known network — like the Proud Boys — it charges when.

The thing is, a lot of these people are going to have better operational security than the people who posed for selfies (or managed to destroy evidence). A lot of them are going to be somewhat more difficult to implicate in the insurrection. And a lot of the investigative work will take more time, potentially a lot more time (and require cooperators). You shouldn’t want DOJ to rush it because it’s the kind of thing that good lawyers will mount a First Amendment challenge to.

It will take some time. But that’s not because Billy Barr has come back from whatever corporate boardroom he’s sitting in and sabotaged things. It will take some time because it will take some time.

The Soft Bigotry of Expecting the Commander in Chief to Only Tweet

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Based on what source does the lawyer for Donald Trump — a client who never listened to security briefings when he used to be President — state (in an interview with Maggie Haberman, but not in his written defense) that the January 6 insurrectionists planned their attack in advance?

Mr. Schoen pointed to another potential argument that could help Mr. Trump, one not related to free speech: that at least some of the Trump supporters who stormed the Capitol planned their attack in advance, suggesting that Mr. Trump was not the inciting force.

“I have no reason to believe anyone involved with Trump was in the know,” he said of the violence that unfolded at the Capitol.

This defense doesn’t help Doug Schoen as much as he thinks. After all, the House brief lays out how, even before the Proud Boys were overtly planning for the insurrection (and meeting with Lindsey Graham and finding a spot on a tour of the White House), Trump had called on the extremist group to

During a debate on September 29, for instance, he told the Proud Boys— a violent extremist group with ties to white nationalism—to “stand back and stand by.”48

[snip]

On January 2, for example, Fox News reported on a social media declaration by Proud Boys Leader Enrique Tarrio that the Proud Boys would come to the January 6 rally prepared for violence.59 Another Proud Boys organizer said, “We are going to smell like you, move like you, and look like you. The only thing we’ll do that’s us is think like us! Jan 6th is gonna be epic.”60

As someone who has spent much of the last four weeks tracking what is publicly known about the terrorist attack, anyone following closely enough to know how the Proud Boys, especially, plotted in advance also knows that Trump was coordinating with them going back months and his rat-fucker Roger Stone was coordinating with them even longer, also knows that the mobs breaking into the Capitol timed their move closely with (among other things) Trump’s speech, and knows as well that Trump and Rudy were both coordinating with events on the Hill using the mob as a delaying tactic.

But Schoen seems to be considering talking about what someone who refused briefing knew and did not know about an attack while he was still President.

I especially find Schoen’s certainty about what an ongoing investigation shows given a fairly remarkable passage in the House trial brief. There’s an 11-paragraph section describing, “President Trump’s Dereliction of Duty During the Attack.” The first describes how Trump watched in delight.

As armed insurrectionists breached the Capitol—and as Vice President Pence, the Congress, and the Capitol Police feared for their lives—President Trump was described by those around him as “borderline enthusiastic because it meant the certification was being derailed.”141 Senior administration officials described President Trump as “delighted” and reported that he was “walking around the White House confused about why other people on his team weren’t as excited as he was as you had rioters pushing against Capitol Police trying to get into the building.”142

But it’s another five paragraphs before the House brief mentions that Trump was the Commander in Chief.

During this time, not only did President Trump fail to issue unequivocal statements ordering the insurrectionists to leave the Capitol; he also failed in his duties as Commander in Chief by not immediately taking action to protect Congress and the Capitol. This failure occurred despite multiple members of Congress, from both parties, including on national television, vehemently urging President Trump to take immediate action.

That is, the House brief focuses on what Trump did or didn’t tweet, and what victims he never called (while calling Tommy Tuberville to coordinate his delaying tactics).

But it barely mentions that Trump sat in the White House watching an attack on the Nation’s Capitol — one his lawyer now suggests he had some knowledge of — and he did literally nothing to intervene. True, there is a thoroughly unreliable Vanity Fair piece quoting Trump’s flunkies claiming that Trump made preparations the night before. But that account doesn’t match the known events, nor does it accord with the long delay in deploying the Guard troops.

In the middle of the impeachment case against Trump is a tacit admission not just that Trump did nothing as he watched a terrorist attack on the Capitol, but no one expected him to be able to do more than Tweet.

The former President’s defense claims, with no proof, that he faithfully executed his duty to protect and defend the Constitution and served to the best of his ability.

To the contrary, at all times, Donald J. Trump fully and faithfully executed his duties as President of the United States, and at all times acted to the best of his ability to preserve, protect and defend the Constitution of the United States, while never engaging in any high Crimes or Misdemeanors

[snip]

It is denied he betrayed his trust as President, to the manifest injury of the people of the United States. Rather, the 45th President of the United States performed admirably in his role as president, at all times doing what he thought was in the best interests of the American people. The 45th President believes and therefore avers that in the United States, the people choose their President, and that he was properly chosen in 2016 and sworn into office in 2017, serving his term to the best of his ability in comportment with his oath of office.

Perhaps that’s right. But if that’s true, it’s a confession that when the nation’s capital came under attack, Trump was helpless to do the least demanded of him as Commander in Chief.

Yes, the case against Trump is deeply rooted in his Tweets inciting terrorists and he should be impeached based just on those and his speech. But along the way, all sides seem to admit that Trump didn’t even consider doing anything as Commander in Chief as the country was attacked.

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