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The Network Effect: The 3%ers Incitement, Terrorist Enhancements, and California’s Anti-Maskers

At a hearing for Danny Rodriguez on August 31, Judge Amy Berman Jackson asked, as she had in the last hearing, why Rodriguez wasn’t included in the indictment with a bunch of other men who, like him, are accused of assaulting Michael Fanone, a case over which she is also presiding. As also happened in that last hearing, ABJ asked about a plea offer. In July, AUSA Kimberly Paschall said Rodriguez might not be offered a plea deal at all. On Tuesday, Paschall said he would only be offered a plea deal if he were willing to be debriefed first, prosecutor’s jargon meaning that someone will only be permitted to plead guilty if he cooperates against others. Paschall also said that any plea would necessarily include the 18 USC 1361 charge against Rodriguez for breaking a window because it carries a terrorism enhancement. When prompted by Rodriguez’ attorney (who sourced her intelligence to Twitter), Paschall admitted there may be a superseding indictment against Rodriguez, widely assumed to be some kind of conspiracy indictment with other extremists from Southern California.

As HuffPo reported in February (relying heavily on the work of online researchers including Deep State Dogs), before his arrest Rodriguez was a well-known participant in a group of Southern California anti-maskers, one who had been reported for assault even before boarding a plane to DC in January.

Rodriguez, who goes by “Danny” and “DJ,” is well known among Trump supporters in the Los Angeles area as a superfan of the former president. Multiple news outlets have featured him in their coverage of the local pro-Trump movement in recent years, in articles that included his name and photo. He regularly attended the weekly Trump rallies in Beverly Hills last year. He was recognizable there by his dark-rimmed glasses and the many distinctive pins on his hat, which has a big GOP elephant symbol on the brim.

Rodriguez coordinated with other members of this network — including Gina Bisignano — while at the riot.

What Paschall basically admitted in Tuesday’s hearing is that DOJ intends to hold Rodriguez accountable as a terrorist, possibly in conjunction with his network of right wing operatives. But for all the reports (on Twitter) about network members flipping on each other, the network of extremists still manages to sow violence in front of the LAPD with impunity.

There are other public signs, however, that DOJ is going after this network. In June, DOJ rolled out a conspiracy indictment against six Three Percenters, including Alan Hostetter and Russell Taylor. In spite of explicit threats of execution detailed in it, it doesn’t include a crime of terrorism like the one charged against Rodriguez. While the Three Percenter ties, the plans to come to DC armed, and the defendants’ role in a January 5 Stop the Steal rally attracted a lot of attention, the import of a Telegram channel described in it got less focus.

On January 1, 2021, [Russ] TAYLOR created a Telegram chat called “The California Patriots-DC Brigade” (the “DC Brigade”) and invited other individuals to join. TAYLOR, HOSTETTER, WARNER, KINNISON, MARTINEZ, and MELE all joined, along with more than 30 others.

In the “about” section that described the purpose of the DC Brigade group, TAYLOR wrote:

This group will serve as the Comms for able bodied individuals that are going to DC on Jan 6. Many of us have not met before and we are all ready and willing to fight. We will come together for this moment that we are called upon.

In a series of messages on January 1, 2021, TAYLOR further explained the purpose of the group. In one message, he explained: “This thread is exclusive to be utilized to organize a group of fighters to have each other’s backs and ensure that no one will trample on our rights. Also, if there is key intel that we need to be aware of tor [sic] possible threats.” He added: “I am assuming that you have some type of weaponry that you are bringing with you and plates as well.” TAYLOR also asked members to identify if they had previous law enforcement experience, military experience, or “special skills relevant to our endeavors,” as well as the planned date and time of their arrival in D.C.

There were 36 people in this thread and DOJ may have arrested just 4 before this conspiracy charge, leaving at least 26 others who participated in a channel about coming armed to the Capitol still out there.

In recent days (close to three months after the conspiracy indictment), DOJ has started arresting those participants. On August 26, for example, DOJ arrested Jeffrey Scott Brown on charges of assault, civil disorder, and trespassing based in part on him spraying an irritant at the police.

The government cited Brown’s participation in Taylor’s Telegram channel to substantiate pre-meditation for his violence.

During the course of the investigation into the events of January 6, 2021, law enforcement has identified communications that documented planning and coordination amongst individuals in advance of January 6, 2021. As detailed below, the investigation has established that JEFFREY SCOTT BROWN participated in a Telegram group chat on an encrypted messaging app in the days leading up to January 6. In the Telegram chat “about” section was the following description: “This group will serve as the Comms for able bodied individuals that are going to DC on Jan 6. Many of us have not met before and we are all ready and willing to fight. We will come together for this moment that we are called upon.”

One of the members of this chat was Telegram user “JB” (UID XXXXXX1832). On January 5, 2021, at approximately 6:30 a.m. PST, Telegram user “JB” posted a picture of himself with the caption “Boarding LAX.” LAX is the airport code for the Los Angeles International Airport.

Yesterday, another of the participants on Taylor’s Telegram channel, Ben Martin, was arrested for his sustained efforts to get and keep the North doors of the Capitol open.

Among the pictures of Martin included in his arrest affidavit at that North door are some also included in a detention memo for Matthew Klein that depict the Klein brothers, already charged with conspiracy for their efforts to open it.

Martin’s arrest warrant describes Facebook Messenger discussions Martin had with an RT who, like Russell Taylor, publicly called for violence in advance of the riot. That RT invited Martin to a Telegram channel that sounds (except for RT’s boasts about its size) just like The California Patriots-DC Brigade.

A search warrant of the MARTIN Facebook account identified by the tipster revealed that the account was registered as “benjamin.martin.90410.” A review of the account further revealed communications between MARTIN and a Facebook account associated with R.T. Based on a different investigation, R.T. is known to the FBI to have advocated for violence in the lead-up to January 6, organized others to travel to D.C. for January 6 (some of whom participated in the riot at the U.S. Capitol), and to have participated himself in the riot at the U.S. Capitol on January 6. MARTIN’s account contained communications occurring on January 3, 2021, between R.T. and MARTIN through Facebook Messenger in which MARTIN and R.T. discussed traveling to Washington D.C. for January 6, 2021. In the communications, R.T. invited MARTIN to join a Telegram chat for “a group of 200+ California patriots that are going to DC Jan 6,” which MARTIN accepted and joined. On January 6, 2021, MARTIN sent four messages to R.T. that stated, “we need to meet”, “I just spoke to Peggy Hall she said we need to meet”, and “I am in DC as we”, “well” [sic].

Consider what you have in this network:

  • Ties to two militias, the Three Percenters and the Proud Boys
  • Organization based in localized, violent anti-mask activism
  • A direct tie to one of two organized rallies on January 5
  • A Telegram channel tying a group of participants together
  • The use of blowhorns and radios during the riot to maximize impact
  • Taylor’s description of a plan, formulated at least by December 30, to “surround the capital,” followed by Simon’s sustained efforts to open a new front on the North side of it
  • Discussions in advance of executing traitors followed by an assault on Michael Fanone that caused a heart attack
  • By dint of Rodriguez’ damage to a window of the Capitol, a crime of terrorism that can (and Paschall is intent, will) carry a terrorism enhancement

At Tuesday’s hearing, Paschall didn’t seem sure whether they will end up charging Rodriguez in a conspiracy with some of the others (though she said DOJ would likely finalize their decision on that point by October 1). Certainly, it doesn’t seem like local law enforcement in LA is anything but an impediment.

But this network of extremists is a good place to look to understand how the various parts of the riot came together.

Stop the Steal: Hints of the January 5 Rallies in the January 6 Riot Investigation

With the charges against Owen Shroyer, the government has now charged three people who had a speaking part in several rallies tied to Stop the Steal the day before the insurrection: Brandon Straka, Russell Taylor and his co-conspirators, and Shroyer. Because I’m working on some gaps in the government’s story — gaps that must be intentional, for investigative or prosecutorial reasons — I want to look at how DOJ is beginning to fill in the story about January 5.

With Walk Away founder Brandon Straka, who was arrested on January 25, the mention of his speech at the Stop the Steal rally at Freedom Plaza in his arrest affidavit was almost incidental, included along with the rest of his incendiary speech directly tied to the riot (but the affidavit didn’t include his other public comments over a broader period — for example, it doesn’t mention Straka’s role in sowing suspicion of the Michigan vote tally).

My review of STRAKA’s Twitter account on January 11, also found a video he had posted of himself speaking at a “Stop the Steal” rally held at Freedom Plaza in Washington, D.C. on January 5, 2021. As of January 13, STRAKA had removed this video from his Twitter account, but a video of the entire event had been posted to YouTube. The video showed that STRAKA was introduced by name and brought onto stage. STRAKA spoke for about five minutes during which time he repeatedly referred to the attendees as “Patriots” and referenced the “revolution” multiple times. STRAKA told the attendees to “fight back” and ended by saying, “We are sending a message to the Democrats, we are not going away, you’ve got a problem!”

Though Straka was charged with civil disorder for encouraging others to strip an officer of his riot shield, he has not yet been indicted, with or without obstruction, which these statements would seem to support. Instead, the government has gotten two 90-plus day continuances in this case with Straka’s consent, offering the explanation that, “are continuing to communicate in an effort to resolve this matter.” Straka currently has a status hearing scheduled on August 25, Wednesday, though these things do get moved quickly.

The January 5 rally at the Supreme Court (which featured some of the same people as the Freedom Plaza one) appears in the So Cal Three Percenter conspiracy indictment in part for the logistical challenges it posed.

On December 30, 2020, KINNISON sent a text message to MELE, WARNER, and MARTINEZ in which he attached a flyer advertising the January 5, 2021 rally outside the Supreme Court, at which TAYLOR, HOSTETTER, and PERSON ONE were named speakers for the American Phoenix Project. After KINNISON set this message, MELE wrote, “We need to make sure we roll into town earlier on the 5th now,” to which KINNISON responded, “We can leave Saturday.”

But it still provided cause for DOJ to mention that by December 30, Russell Taylor knew of a Stop the Steal plan to “surround the Capitol.”

On December 30, 2020, TAYLOR posted to his “russ.taylor” Instagram account:

Spread the word to other CALIFORNIA Patriots to join us as we March into the Capitol Jan 6. The Plan right now is to meet up at two occasions and locations: 1. Jan 5th 2pm at the Supreme Court steps for a rally. (Myself, Alan, [and others] will be speaking) 2. Jan 6th early 7am meet in front of the Kimpton George Hotel…we will leave at 7:30am sharp and March (15 mins) to the Capital [sic] to meet up with the stop the steal organization and surround the capital. [sic] There will be speakers there and we will be part of the large effort for the “Wild Rally” that Trump has asked us all to be part of. [my emphasis]

Mentioning this rally also gave DOJ an opportunity to describe Taylor promising to “fight” and “bleed” in his speech at the rally.

On January 5, 2021, TAYLOR spoke at a Virginia Women for Trump rally in front of the United States Supreme Court as part of a panel of American Phoenix Project speakers. In his speech, he stated:

I am Russell Taylor and I am a free American. And I stand here in the streets with you in defiance of a communist coup that is set to take over America. But we are awake and we are never going back to sleep. We are free Americans and in these streets we will fight and we will bleed before we allow our freedom to be taken from us. We declare that we will never bend a knee to the Marxists within Antifa, to the tyrannical Democrat governors who are puppets, and to the deep state commie actors who threaten to destroy America…. But now these anti-Americans have made the fatal mistake, and they have brought out the Patriot’s fury onto these streets and they did so without knowing that we will not return to our peaceful way of life until this election is made right, our freedoms are restored, and American is preserved.

That is, in the conspiracy indictment charging 3 percenters with organizing not just themselves to come armed to the Capitol, but others in Southern California, the earlier rally serves as both an organizational focus and a platform to sow violence.

Shroyer’s affidavit mentions several things he said on January 5

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

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

In addition, SHROYER was featured in promotional material circulated by Infowars. One promotional video urged listeners to “come to the big D.C. marches on the 5th and 6th of January, I’ll see you there.”4 The video ended with an edited graphic of SHROYER and others in front of the Capitol building. That graphic is depicted below:

1 https://banned.video/watch?id=5ff4aebaa285a02ed04c4d6e.

2 https://banned.video/watch?id=5ff511bb5a212330029f5a9c.

3 https://banned.video/watch?id=5ff511bb5a212330029f5a9c.

4 https://www.banned.video/watch?id=5ff22bb71f93a8267a6432ee.

While Shroyer is circled in that graphic — which demonstrates that Jones had a plan to go to the Capitol (significantly, this is the East front) days in advance — it really is all about Jones.

As I noted, this is just a trespass arrest, like hundreds of other trespass arrests (though by charging Shroyer with violating a pre-existing Deferred Prosecution Agreement, they lessen any claims of persecution that will come as they investigate Shroyer further).

But what these three arrests together show is that those involved as speakers on January 5 seem to have had advance knowledge of what would happen the next day.

One of the other mentions of January 5 rallies thus far appears in the filings for Josiah Colt, Ronnie Sandlin, and Nate DeGrave, three random guys who hooked up on the Internet and armed themselves for violence in advance of January 6. Though they have no ties to any organized militia, the day after they went to a January 5 rally, they seemed to know there would be a second front opening at the East door, and Sandlin and DeGrave were among those charged with forcibly ensuring that door was opened.

Like All His Co-Conspirators, Donald Trump Would Be Charged for Obstruction, Not Incitement

Today is the day that DOJ has to inform Judge Amit Mehta whether or not Mo Brooks’ incitement of January 6 rioters is part of his job, which would require DOJ to substitute itself for Brooks in Eric Swalwell’s lawsuit. Commentators who appear not to have followed the court cases very closely suggest that if DOJ does substitute for Brooks, it’ll make it impossible to hold Trump accountable for his role in the riot.

Brooks argued in court papers that his statements came as Congress prepared to certify the election results and that he was acting in his role as a federal lawmaker, representing his constituents, that day.

Now, the Justice Department and the top lawyer for the U.S. House of Representatives are involved. U.S. District Judge Amit Mehta has directed them to say by Tuesday whether they consider Brooks’ statements to be part of his duties as a member of Congress, and whether the federal government should substitute itself as a defendant in the case.

“We hope DOJ will see Brooks’ appalling conduct on Jan. 6 for what it was and what he admitted it was, which was campaign activity performed at the request of Donald Trump, which inarguably is beyond the scope of his employment as a member of Congress,” said Philip Andonian, a lawyer who brought the case on behalf of Swalwell.

Andonian said there’s no way Brooks and Trump were acting in their capacity as federal officials, which would give them a legal shield under a law known as the Westfall Act. Instead, he said, they were engaged in campaign activity, which doesn’t deserve that kind of protection.

[snip]

[Protect Democracy’s Kristy Parker] said she’s worried that if the Justice Department endorses Brooks’ and Trump’s statements on Jan. 6 as within the scope of their federal employment, it could complicate the efforts of prosecutors to bring the rioters to justice.

“That is not going to have a good impact on the ongoing criminal cases when it comes to persuading judges that the people who stormed the Capitol should get hefty sentences when the people who inspired them to do it have been endorsed as acting within the scope of their official jobs,” Parker said.

This column lays out some of the legal complexities regarding Brooks, including that even if DOJ does substitute for Brooks, it likely still leaves him exposed to part of the lawsuit.

I say the people claiming that this decision will determine whether or not Trump can be held accountable seem not to be following the actual court cases. If they had, after all, they’d know that the crime for which key instigators are facing “hefty sentences” is obstruction and conspiracy to obstruct the vote count. They’d also know that every single conspiracy indictment thus far has the same objective — to stop, delay, or hinder Congress’s certification of the Electoral College vote.

They’d also know that the overt acts in these parallel conspiracy cases involve getting large numbers of people to DC — often by publicizing the event on social media — and then getting those people to occupy the Capitol.

That is, if people were following the court cases rather than uninformed commentators, they’d know that the 38 people charged with conspiracy and the at least four people cooperating against them (not to mention the almost 200 individuals charged individually with obstruction) all had the same goal as Trump — they wanted to prevent the vote certification. Those charged with a conspiracy also used some of the same overt acts that Trump did, making sure lots of bodies were there and making sure that those bodies were occupying the Capitol.

They also might know that, starting with the Three Percenter SoCal conspiracy, DOJ started charging people who threatened violence as part of their efforts to get more bodies to the Capitol.

The difference between the threats that Trump made against Mike Pence after Pence refused an unconstitutional request from him and the threats of execution that were included in Alan Hostetter’s posts in advance of the riot is that virtually all the people who occupied the Capitol on January 6 were aware of Trump’s threats and some took action to implement them.

The disorganized militia conspiracy (which will presumably be rolled out any day now) is significant because at least one of the men who will likely be charged in it, Nate DeGrave, said he was responding entirely to Trump’s exhortations. DOJ likely has video evidence of the effect that Trump’s attacks on Mike Pence had on those men as they walked from his speech to the Capitol. Those men fought with cops to open up a second front of the siege on the Capitol and then they fought with cops to get into the space where, Josiah Colt hoped and believed, Senators were still conducting the vote count. These men are charged with trying to intimidate government personnel like Mike Pence, something that Trump also did.

We already have evidence Trump shared the same goal as every person charged with conspiracy and evidence that Trump committed some of the very same overt acts as those charged. We even have evidence tying Trump’s own actions with physical violence committed with the goal of reaching Mike Pence to intimidate him.

We don’t, yet, have evidence that Trump agreed with any of the co-conspirators already charged. But we are within two degrees of having that, working through either Rudy Giuliani or Roger Stone, which would make Trump a co-conspirator with all the others.

I’m not saying DOJ will get that evidence. As I’ve said, a goodly number of people are going to have to agree to cooperate before DOJ will get there, though we have abundant reason to believe such agreements were made.

But unless this novel application of obstruction gets thrown out by the courts, then it remains ready-made to fit Trump right in among the other co-conspirators, just one violent mobster among all the others.

Even Billy Barr agreed that Presidents could be charged with obstruction. And if Trump is going to be held accountable for his actions on January 6, it will be via obstruction charges, not incitement.

“Stand Back and Stand By:” John Pierce’s Plan for a Public Authority or — More Likely — a MyPillow Defense

In a Friday hearing in the omnibus Oath Keeper conspiracy case, John Pierce — who only just filed an appearance for Kenneth Harrelson in that case — warned that he’s going to mount a very vigorous public authority defense. He claimed that such a defense would require reviewing all video.

Pierce is a Harvard-trained civil litigator involved in the more conspiratorial side of Trumpist politics. Last year he filed a lawsuit for Carter Page that didn’t understand who (Rod Rosenstein, among others) needed to be included to make the suit hold up, much less very basic things about FISA. As someone who’d like to see the unprecedented example of Page amount to something, I find that lawsuit a horrible missed opportunity.

John Pierce got fired by Kyle Rittenhouse

Of late, he has made news for a number of controversial steps purportedly in defense of accused Kenosha killer Kyle Rittenhouse. A recent New Yorker article on Rittenhouse’s case, for example, described that Pierce got the Rittenhouses to agree to a wildly inflated hourly rate and sat on donations in support of Rittenhouse’s bail for a month after those funds had been raised. Then, when Kyle’s mother Wendy tried to get Pierce to turn over money raised for their living expenses, he instead claimed they owed him.

Pierce met with the Rittenhouses on the night of August 27th. Pierce Bainbridge drew up an agreement calling for a retainer of a hundred thousand dollars and an hourly billing rate of twelve hundred and seventy-five dollars—more than twice the average partner billing rate at top U.S. firms. Pierce would be paid through #FightBack, which, soliciting donations through its Web site, called the charges against Rittenhouse “a reactionary rush to appease the divisive, destructive forces currently roiling this country.”

Wisconsin’s ethics laws restrict pretrial publicity, but Pierce began making media appearances on Rittenhouse’s behalf. He called Kenosha a “war zone” and claimed that a “mob” had been “relentlessly hunting him as prey.” He explicitly associated Rittenhouse with the militia movement, tweeting, “The unorganized ‘militia of the United States consists of all able-bodied males at least seventeen years of age,’ ” and “Kyle was a Minuteman protecting his community when the government would not.”

[snip]

In mid-November, Wood reported that Mike Lindell, the C.E.O. of MyPillow, had “committed $50K to Kyle Rittenhouse Defense Fund.” Lindell says that he thought his donation was going toward fighting “election fraud.” The actor Ricky Schroder contributed a hundred and fifty thousand dollars. Pierce finally paid Rittenhouse’s bail, with a check from Pierce Bainbridge, on November 20th—well over a month after #FightBack’s Web site indicated that the foundation had the necessary funds.

[snip]

Wendy said of the Rittenhouses’ decision to break with Pierce, “Kyle was John’s ticket out of debt.” She was pressing Pierce to return forty thousand dollars in donated living expenses that she believed belonged to the family, and told me that Pierce had refused: “He said we owed him millions—he ‘freed Kyle.’ ”

Possibly in response to the New Yorker piece, Pierce has been tweeting what might be veiled threats to breach attorney-client privilege.

Pierce assembles a collection of characters for his screen play

Even as that has been going on, however, Pierce has been convincing one after another January 6 defendant to let him represent them. The following list is organized by the date — in bold — when Pierce first filed an appearance for that defendant (I’ll probably update this list as Pierce adds more defendants):

1. 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.

2. 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).

3. 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.

4. 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 has not yet been formally charged (though that should happen any day).

5. Victoria White: If I were prosecutors, I’d be taking a closer look at White to try to figure out why John Pierce decided to represent her (if it’s not already clear to them; given the timing, it may simply be because he believed he needed a few women defendants to tell the story he wants to tell). 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.

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. Update: On July 27, Samsel informed Magistrate Judge Zia Faruqui that he would be retaining new counsel.

6. 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. Pierce filed his appearance to represent McGrew on June 16.

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, Hostetter replaced Pierce.

7, 8, 9. 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 are separately charged (Lesperance, James Cusick, Casey Cusick), all with just trespassing. 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).

10. 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. Harrelson had previously been represented by Nina Ginsberg and Jeffrey Zimmerman, who are making quite sure to get removed from Harrelson’s team before Pierce gets too involved.

11. 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.

12. Nate DeGrave: The night before DeGrave’s quasi co-conspirator Josiah Colt pled guilty, July 13, Pierce filed a notice of appearance for Nate DeGrave. DeGrave helped ensure both the East Door and the Senate door remained open.

14. Nathaniel Tuck: On July 19, Pierce filed a notice of appearance for Nathaniel Tuck, the Florida former cop Proud Boy.

14. Kevin Tuck: 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.

15. Peter Schwartz: On July 26, Pierce filed a notice of appearance for Peter Schwartz, the felon out on COVID-release who maced some cops.

16. 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.

17. 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.

As you can see, Pierce has assembled as cast of defendants as if writing a screenplay, with Proud Boys from key breach points, leading members of the other conspiracies, and other movement conservatives. There are just a few more scenes he would need to fill out to not only be able to write his screenplay, but also to be able to get broad discovery from the government.

This feat is all the more interesting given a detail from the New Yorker article: at one point, Pierce seemed to be claiming to represent Enrique Tarrio and part of his “defense” of Rittenhouse was linking the boy to the Proud Boys.

Six days after the Capitol assault, Rittenhouse and his mother flew with Pierce to Miami for three days. The person who picked them up at the airport was Enrique Tarrio—the Proud Boys leader. Tarrio was Pierce’s purported client, and not long after the shootings in Kenosha he had donated a hundred dollars or so to Rittenhouse’s legal-defense fund. They all went to a Cuban restaurant, for lunch.

Enrique Tarrio would be part of any coordinated Florida-based plan in advance of January 6 and if he wanted to, could well bring down whatever conspiracy there was. More likely, though, he’s attempting to protect any larger conspiracy.

A public authority defense claims the defendant thought they had authority to commit a crime

And with his ties to Tarrio, Pierce claims (to think) he’s going to mount a public authority defense. A public authority defense involves claiming that the defendant had reason to believe he had authority to commit the crimes he did. According to the Justice Manual, there are three possible arguments a defendant might make. The first is that the defendant honestly believed they were authorized to do what they did.

First, the defendant may offer evidence that he/she honestly, albeit mistakenly, believed he/she was performing the crimes charged in the indictment in cooperation with the government. More than an affirmative defense, this is a defense strategy relying on a “mistake of fact” to undermine the government’s proof of criminal intent, the mens rea element of the crime. United States v. Baptista-Rodriguez, 17 F.3d 1354, 1363-68 (11th Cir. 1994); United States v. Anderson, 872 F.2d 1508, 1517-18 & n.4 (11th Cir.), cert. denied, 493 U.S. 1004 (1989); United States v. Juan, 776 F.2d 256, 258 (11th Cir. 1985). The defendant must be allowed to offer evidence that negates his/her criminal intent, id., and, if that evidence is admitted, to a jury instruction on the issue of his/her intent, id., and if that evidence is admitted, he is entitled to a jury instruction on the issue of intent. United States v. Abcasis, 45 F.3d 39, 44 (2d Cir. 1995); United States v. Anderson, 872 F.2d at 1517-1518 & n. In Anderson, the Eleventh Circuit approved the district court’s instruction to the jury that the defendants should be found not guilty if the jury had a reasonable doubt whether the defendants acted in good faith under the sincere belief that their activities were exempt from the law.

There are some defendants among Pierce’s stable for whom this might work. But taken as a whole and individually, most allegedly did things (including obstruction or lying to the FBI) that would seem to evince consciousness of guilt.

The second defense works best (and is invoked most often) for people — such as informants or CIA officers — who are sometimes allowed to commit crimes by the Federal government.

The second type of government authority defense is the affirmative defense of public authority, i.e., that the defendant knowingly committed a criminal act but did so in reasonable reliance upon a grant of authority from a government official to engage in illegal activity. This defense may lie, however, only when the government official in question had actual authority, as opposed to merely apparent authority, to empower the defendant to commit the criminal acts with which he is charged. United States v. Anderson, 872 F.2d at 1513-15; United States v. Rosenthal, 793 F.2d 1214, 1236, modified on other grounds, 801 F.2d 378 (11th Cir. 1986), cert. denied, 480 U.S. 919 (1987). The genesis of the “apparent authority” defense was the decision in United States v. Barker, 546 F. 2d 940 (D.C. Cir. 1976). Barker involved defendants who had been recruited to participate in a national security operation led by Howard Hunt, whom the defendants had known before as a CIA agent but who was then working in the White House. In reversing the defendants’ convictions, the appellate court tried to carve out an exception to the mistake of law rule that would allow exoneration of a defendant who relied on authority that was merely apparent, not real. Due perhaps to the unique intent requirement involved in the charges at issue in the Barker case, the courts have generally not followed its “apparent authority” defense. E.g., United States v. Duggan, 743 F.2d 59, 83-84 (2d Cir. 1984); United States v. Rosenthal, 793 F.2d at 1235-36. If the government official lacked actual or real authority, however, the defendant will be deemed to have made a mistake of law, which generally does not excuse criminal conduct. United States v. Anderson, 872 F.2d at 1515; United States v. Rosenthal, 793 F.2d at 1236; United States v. Duggan, 743 F.2d at 83-84. But see discussion on “entrapment by estoppel,” infra.

Often, spooked up defendants try this as a way to launch a graymail defense, to make such broad requests for classified information to push the government to drop its case. Usually, this effort fails.

I could see someone claiming that Trump really did order the defendants to march on the Capitol and assassinate Mike Pence. Some of the defendants’ co-conspirators (especially Harrelson’s) even suggested they expected Trump to invoke the Insurrection Act. But to make that case would require not extensive review of Capitol video, as Pierce says he wants, but review of Trump’s actions, which would seem to be the opposite of what this crowd might want. Indeed, attempting such a defense might allow prosecutors a way to introduce damning information on Trump that wouldn’t help the defense cause.

The final defense is when a defendant claims that a Federal officer misled them into thinking their crime was sanctioned.

The last of the possible government authority defenses is “entrapment by estoppel,” which is somewhat similar to public authority. In the defense of public authority, it is the defendant whose mistake leads to the commission of the crime; with “entrapment by estoppel,” a government official commits an error and, in reliance thereon, the defendant thereby violates the law. United States v. Burrows, 36 F.3d 875, 882 (9th Cir. 1994); United States v. Hedges, 912 F.2d 1397, 1405 (11th Cir. 1990); United States v. Clegg, 846 F.2d 1221, 1222 (9th Cir. 1988); United States v. Tallmadge, 829 F.2d 767, 773-75 (9th Cir. 1987). Such a defense has been recognized as an exception to the mistake of law rule. In Tallmadge, for example, a Federally licensed gun dealer sold a gun to the defendant after informing him that his circumstances fit into an exception to the prohibition against felons owning firearms. After finding that licensed firearms dealers were Federal agents for gathering and dispensing information on the purchase of firearms, the Court held that a buyer has the right to rely on the representations made by them. Id. at 774. See United States v. Duggan, 743 F.2d at 83 (citations omitted); but, to assert such a defense, the defendant bears the burden of proving that he\she was reasonable in believing that his/her conduct was sanctioned by the government. United States v. Lansing, 424 F.2d 225, 226-27 (9th Cir. 1970). See United States v . Burrows, 36 F.3d at 882 (citing United States v. Lansing, 424 F.2d at 225-27).

This is an extreme form of what defendants have already argued. And in fact, Chief Judge Beryl Howell already addressed this defense in denying Billy Chrestman (a Proud Boy from whose cell Pierce doesn’t yet have a representative) bail. After reviewing the precedents where such a defense had been successful, Howell then explained why it wouldn’t work here. First, because where it has worked, it involved a narrow misstatement of the law that led defendants to unknowingly break the law, whereas here, defendants would have known they were breaking the law because of the efforts from police to prevent their actions. Howell then suggested that a belief that Trump had authorized this behavior would not have been rational. And she concludes by noting that this defense requires that the person leading the defendant to misunderstand the law must have the authority over such law. But Trump doesn’t have the authority, Howell continued, to authorize an assault on the Constitution itself.

Together, this trilogy of cases gives rise to an entrapment by estoppel defense under the Due Process Clause. That defense, however, is far more restricted than the capacious interpretation suggested by defendant, that “[i]f a federal official directs or permits a citizen to perform an act, the federal government cannot punish that act under the Due Process Clause.” Def.’s Mem. at 7. The few courts of appeals decisions to have addressed the reach of this trilogy of cases beyond their facts have distilled the limitations inherent in the facts of Raley, Cox, and PICCO into a fairly restrictive definition of the entrapment by estoppel defense that sets a high bar for defendants seeking to invoke it. Thus, “[t]o win an entrapment-by-estoppel claim, a defendant criminally prosecuted for an offense must prove (1) that a government agent actively misled him about the state of the law defining the offense; (2) that the government agent was responsible for interpreting, administering, or enforcing the law defining the offense; (3) that the defendant actually relied on the agent’s misleading pronouncement in committing the offense; and (4) that the defendant’s reliance was reasonable in light of the identity of the agent, the point of law misrepresented, and the substance of the misrepresentation.” Cox, 906 F.3d at 1191 (internal quotation marks and citations omitted).

The Court need not dally over the particulars of the defense to observe that, as applied generally to charged offenses arising out of the January 6, 2021 assault on the Capitol, an entrapment by estoppel defense is likely to fail. Central to Raley, Cox, and PICCO is the fact that the government actors in question provided relatively narrow misstatements of the law that bore directly on a defendant’s specific conduct. Each case involved either a misunderstanding of the controlling law or an effort by a government actor to answer to complex or ambiguous legal questions defining the scope of prohibited conduct under a given statute. Though the impact of the misrepresentations in these cases was ultimately to “forgive a breach of the criminal laws,” Cox, 379 U.S. at 588 (Clark, J., concurring in part and dissenting in part), none of the statements made by these actors implicated the potential “waiver of law,” or indeed, any intention to encourage the defendants to circumvent the law, that the Cox majority suggested would fall beyond the reach of the entrapment by estoppel defense, id. at 569. Moreover, in all three cases, the government actors’ statements were made in the specific exercise of the powers lawfully entrusted to them, of examining witnesses at Commission hearings, monitoring the location of demonstrations, and issuing technical regulations under a particular statute, respectively.

In contrast, January 6 defendants asserting the entrapment by estoppel defense could not argue that they were at all uncertain as to whether their conduct ran afoul of the criminal law, given the obvious police barricades, police lines, and police orders restricting entry at the Capitol. Rather, they would contend, as defendant does here, that “[t]he former President gave th[e] permission and privilege to the assembled mob on January 6” to violate the law. Def.’s Mem. at 11. The defense would not be premised, as it was in Raley, Cox, and PICCO, on a defendant’s confusion about the state of the law and a government official’s clarifying, if inaccurate, representations. It would instead rely on the premise that a defendant, though aware that his intended conduct was illegal, acted under the belief President Trump had waived the entire corpus of criminal law as it applied to the mob.

Setting aside the question of whether such a belief was reasonable or rational, as the entrapment by estoppel defense requires, Cox unambiguously forecloses the availability of the defense in cases where a government actor’s statements constitute “a waiver of law” beyond his or her lawful authority. 379 U.S. at 569. Defendant argues that former President Trump’s position on January 6 as “[t]he American head of state” clothed his statements to the mob with authority. Def.’s Mem. at 11. No American President holds the power to sanction unlawful actions because this would make a farce of the rule of law. Just as the Supreme Court made clear in Cox that no Chief of Police could sanction “murder[] or robbery,” 379 U.S. at 569, notwithstanding this position of authority, no President may unilaterally abrogate criminal laws duly enacted by Congress as they apply to a subgroup of his most vehement supporters. Accepting that premise, even for the limited purpose of immunizing defendant and others similarly situated from criminal liability, would require this Court to accept that the President may prospectively shield whomever he pleases from prosecution simply by advising them that their conduct is lawful, in dereliction of his constitutional obligation to “take Care that the Laws be faithfully executed.” U.S. Const. art. II, § 3. That proposition is beyond the constitutional pale, and thus beyond the lawful powers of the President.

Even more troubling than the implication that the President can waive statutory law is the suggestion that the President can sanction conduct that strikes at the very heart of the Constitution and thus immunize from criminal liability those who seek to destabilize or even topple the constitutional order. [my emphasis]

In spite of Howell’s warning, we’re bound to see some defense attorneys trying to make this defense anyway. But for various reasons, most of the specific clients that Pierce has collected will have a problem making such claims because of public admissions they’ve already made, specific interactions they had with cops the day of the insurrection, or comments about Trump himself they or their co-conspirators made.

And those problems will grow more acute as the defendants’ co-conspirators continue to enter into cooperation agreements against them.

Or maybe this is a MyPillow defense?

But I’m not sure that Pierce — who, remember, is a civil litigator, not a defense attorney — really intends to mount a public authority defense. His Twitter feed of late suggests he plans, instead, to mount a conspiracy theory defense that the entire thing was a big set-up: the kind of conspiracy theory floated by Tucker Carlson but with the panache of people that Pierce has worked with, like Lin Wood (though even Lin Wood has soured on Pierce).

For example, the other day Pierce asserted that defense attorneys need to see every minute of Capitol Police footage for a week before and after.

And one of his absurd number of Twitter polls suggests he doesn’t believe that January 6 was a Trump inspired [armed] insurrection.

I asked on twitter which he was going to wage, a public authority defense or one based on a claim that this was all informants.

He responded by saying he doesn’t know what the question means.

I asked if he really meant he didn’t know what a public authority defense is, given that he told Judge Mehta he’d be waging one for his clients (or at least Oath Keeper Kenneth Harrelson).

He instead tried to change the subject with an attack on me.

In other words, rather than trying to claim that Trump ordered these people to assault the Capitol, Pierce seems to be suggesting it was all a big attempt to frame Trump and Pierce’s clients.

Don’t get me wrong, a well-planned defense claiming that Trump had authorized all this, one integrating details of what Enrique Tarrio might know about pre-meditation and coordination with Trump and his handlers, might be effective. Certainly, having the kind of broad view into discovery that Pierce is now getting would help. One thing he has done well — with the exception of Lesperance and the Cusicks, if it ever turns into felony charges, as well as Pepe and Samsel, depending on Samsel’s ultimate charges — is pick his clients so as to avoid obvious conflict problems And never forget that there’s a history of right wing terrorists going free based on the kind of screenplays, complete with engaging female characters, that Pierce seems to be planning.

But some of the stuff that Pierce has already done is undermining both of these goals, and the difficulty of juggling actual criminal procedure (as a civil litigator) while trying to write a screenplay could backfire

A New Emphasis on Threats of Violence in the Latest January 6 Conspiracy Indictment

As I laid out the other day, the government charged six Three Percenters from California — American Phoenix Project founder Alan Hostetter, Russell Taylor, Erik Warner, Tony Martinez, Derek Kinnison, and Ronald Mele — with conspiracy. As I described, the indictment was notable in that just one of the men, Warner, actually entered the Capitol. But it was also notable for the way it tied Donald Trump’s December 19 call for a big protest on January 6 with their own public calls for violence, including executions, as well as an explicit premeditated plan to “surround the capital” [sic].

That’s one reason I find the slight difference in the way this conspiracy got charged to be of interest.

As I’ve been tracking over time, the now-seven militia conspiracies are structured very similarly, with each including coordinated plans to get to DC, some kind of plans to kit out for war, and some coordinated effort to participate in the assault on the Capitol. These conspiracies intersect in multiple ways we know of:

  • Thomas Caldwell’s communication with multiple militia to coordinate plans
  • Kelly Meggs’ formation of an alliance between Florida militias
  • Joe Biggs’ decision to exit the Capitol after the first breach, walk around it, and breach it again with two other Proud Boys in tow just ahead of the Oath Keeper stack
  • The attendance of James Breheny (thus far only charged individually), apparently with Stewart Rhodes (thus far not charged), at a leadership meeting of “multiple patriot groups” in Quarryville, PA on January 3, which Breheny described as “the day we get our comms on point with multiple other patriot groups”

All three militias mingled in interactions they’ve had with Roger Stone, as well, but thus far Stone only shows up in the Oath Keepers’ conspiracy.

In other words, while these represent seven different conspiracies (along with around maybe 15 to 20 identified militia members not charged in a conspiracy), they’re really one networked conspiracy that had the purpose of preventing the democratic replacement of Donald Trump.

Of particular note, what is probably the most serious case of assault charged against a militia member, that charged against Proud Boy Christopher Worrell, has not been included in any conspiracy. So while individual members of these conspiracies — including Joshua James, Dominic Pezzola, and William Isaacs, have been charged for their own physical resistance to cops — the conspiracies as a whole don’t yet hold conspirators accountable for the violence of their co-conspirators. The conspiracies only allege shared responsibility for damage to the Capitol, not violence against cops.

That said, the purpose and structure of the Three Percenter conspiracy is slightly different than the other six. The other six (Oath Keeper, Proud Boy Media, Proud Boy Leadership, Proud Boy Kansas City, Proud Boy North Door, Proud Boy Front Door) are all charged under 18 U.S.C. §371, conspiracy against the US. While the timeline of each conspiracy varies and while some of the Proud Boy conspiracies also include the goal of impeding the police, all six include language alleging the conspirators,

did knowingly combine, conspire, confederate, and agree with each other and others known and unknown, to commit an offense against the United States, namely, to corruptly obstruct, influence, and impede an official proceeding, that is, the Certification of the Electoral College vote, in violation of Title 18, United States Code, Section 1512(c)(2).

The purpose of the conspiracy was to stop, delay, and hinder the Certification of the Electoral College vote.

That is, those six conspiracies are charged (at least) as a conspiracy to violate the obstruction statute.

The Three Percenter SoCal conspiracy, however, is charged under the obstruction itself, 18 U.S.C. §1512(k).

Between December 19, 2020 and January 6, 2021, within the District of Columbia and elsewhere, the defendants … together with others, did conspire to corruptly obstruct, influence, and impede an official proceeding, to wit: the Certification of the Electoral College vote.

The object is the same — to impede the vote certification. But it is charged differently.

I’m still thinking through what the difference might mean. It might mean nothing, it might reflect the preference of the prosecutors, or it may reflect a rethinking at DOJ.

Nick Smith claims there’s no evidence Ethan Nordean corruptly influenced anyone else to violate their duty

But there are two things that may factor into it. First, since the government first started structuring its conspiracies this way, some defense attorneys have started challenging the applicability of the obstruction statute to the vote certification at all. For this discussion, I’ll focus on the argument as Nick Smith laid it out in a motion to throw out the entire indictment against Ethan Nordean. Smith makes two arguments regarding the conspiracy charge.

First, Smith argues that Congress only intended the obstruction statute to apply to proceedings that involve making factual findings, and so poor Ethan Nordean had no way of knowing that trying to prevent the vote certification might be illegal.

As indicated above, § 1512(c)(2) has never been used to prosecute a defendant for the obstruction of an “official proceeding” unrelated to the administration of justice, i.e., a proceeding not charged with hearing evidence and making factual findings. Moreover, there is no notice, much less fair notice, in § 1512(c)(2) or in any statute in Chapter 73 that a person may be held federally liable for interference with a proceeding that does not resemble a legal tribunal.

Of course, that argument ignores that Ted Cruz and the other members who challenged the vote claim they were making factual findings — so Nordean’s co-conspirators may sink this legal challenge.

Smith also argues that the obstruction charge fails under the findings of US v. Poindexter, in which John Poindexter’s prosecution for lying to Congress about his role in Iran-Contra was reversed, in part, because the word “corruptly” as then defined in the obstruction statute was too vague to apply to Poindexter’s corrupt failure to do his duty. Smith argues that the language remains too vague based on his claim that the government is trying to prosecute Nordean for his “sincerely held political belief that the 2020 presidential election was not fairly decided,” which prosecutors have no business weighing.

Here, the FSI’s construction on § 1512(c)’s adverb “corruptly” fails this Circuit’s Poindexter test. First, the FSI does not allege that Nordean obstructed the January 6 joint session “to obtain an improper advantage for himself or someone else. . .” Poindexter, 951 F.2d at 386. Instead, it contends he allegedly obstructed the session in support of the sincerely held political belief that the 2020 presidential election was not fairly decided. Such an interpretation of § 1512(c) is unconstitutionally vague because it leaves to judges and prosecutors to decide which sincerely held political beliefs are to be criminalized on an ad hoc basis. Dimaya, 138 S. Ct. at 1223-24. Second, the FSI neither alleges that Nordean influenced another person to obstruct the January 6 proceeding in violation of their legal duty, nor that Nordean himself violated any legal duty by virtue of his mere presence that day.

As I noted in my post on this challenge, this might be a nifty argument for a defendant who hadn’t — as Nordean had — started calling for revolution on November 27,  well before the state votes were counted. But Nordean had already made his intent clear even before the votes were counted, so Smith’s claims that Nordean was reacting to the election outcome is fairly easily disproven. (As with this entire challenge, it might work well for other defendants, but for a long list of reasons, it is far less likely to work with Nordean.)

There’s another, far more important, aspect to this part of the argument though. Smith claims, without any discussion, that Nordean didn’t “influence” any other person to violate their legal duty. Smith wants Judge Timothy Kelly to believe that Nordean did not mean to intimidate Congress by assembling a violent mob and storming the Capitol and as a result of intimidation to fail to fulfill their duty as laid out in the Constitution, whether by refusing to certify Joe Biden as President, or by running away in terror and simply failing to complete the task.

Unlike conspiracy, obstruction has a threat of violence enhancement

As I understand it (and I invite actual lawyers to correct me on this), the other difference between charging this conspiracy under 18 USC 371 and charging it under 1512(k) is the potential sentence. While defendants can be sentenced to 20 years under their individual obstruction charges (the actual sentence is more likely to be around 40 months, or less if the defendant pleads out), 18 USC 371 has a maximum sentence of five years.

If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.

But 18 USC 1512(k) says that those who conspire to obstruct shall be subject to the same penalty as they’d face for the actual commission of the offense.

(k)Whoever conspires to commit any offense under this section shall be subject to the same penalties as those prescribed for the offense the commission of which was the object of the conspiracy.

And obstruction has special penalties tied to murder, attempted murder, and the threat of physical force.

(3) The punishment for an offense under this subsection is—
(A) in the case of a killing, the punishment provided in sections 1111 and 1112;
(B) in the case of—
(i) an attempt to murder; or
(ii) the use or attempted use of physical force against any person;
imprisonment for not more than 30 years; and
(C) in the case of the threat of use of physical force against any person, imprisonment for not more than 20 years.

Thus, anyone charged along with a co-conspirator who threatened to kill someone may be exposed to twenty or even thirty years in prison rather than just five years.

As noted, there are several things about the overt acts charged in the Three Percenter conspiracy that differentiate it from the other militia conspiracies. They were even more explicit about their intent to come armed to the Capitol than the Oath Keepers were with their QRF (and their stated excuses to be armed relied even less on what I call the Antifa foil, the claim they had to come armed to defend against people they fully planned to incite).

And Hostetter twice publicly threatened to execute people. He posted a YouTube on November 27 in which he said, “some people at the highest levels need to be made an example of with an execution or two or three.” And he gave a speech on December 12 in which he demanded, “There must be long prison terms, while execution is the just punishment for the ringleaders of the coup.”

In other words, I think by charging this conspiracy under the obstruction statute rather than the conspiracy one, the government has exposed all of Hostetter’s co-conspirators, along with Hostetter himself, to far longer sentences because he repeatedly threatened to execute people.

The Three Percenter conspiracy makes threats to intimidate Mike Pence and members of Congress an object of the conspiracy

My guess is that the government is going to argue that, of course, Nordean was trying to corruptly influence others to violate their legal duty to certify the electoral results. Every single militia includes at least one member who made explicit threats against Mike Pence or Nancy Pelosi, and the Proud Boys, especially, have no recourse by claiming they showed up to listen to Donald Trump, since instead of attending his speech, they were assembling a violent mob to march on the place where Mike Pence was going to enact his official duties.

The Proud Boys were there to intimidate Mike Pence and members of Congress in hopes they would fail to fulfill their duty as laid out in the Constitution. If these charges make it to trial, I think prosecutors will be able to make a very compelling argument that assembling a mob in anticipation of Pence’s official acts was designed to intimidate him corruptly.

But, if I’m right about the criminal penalties, with the Three Percenter conspiracy, the government is going one step further. This conspiracy is structured to hold each member of the conspiracy accountable for the threats of murder made by Hostetter, the threat posed by planning to be armed at the Capitol, as well as the violence of others in their networked conspiracy. And even for those who didn’t enter the Capitol but instead egged on violence from some rally stage or behind some bullhorn, this conspiracy seems to aspire to expose co-conspirators accountable to a twenty year sentence for their (unsuccessful) efforts to intimidate Mike Pence to renege on his duty.

Update: I should add that someone with no prior convictions who goes to trial and is found guilty would face closer to 7-9 years with a full threats of violence enhancement. It would not be the full 20 years.

Update: Thanks to harpie for helping me count to seven (I had the wrong total number originally).

The Hybrid Hatchet Conspiracy: A Premeditated Plan to Surround the Capitol on January 6

Contrary to what you might read on Twitter, I have not been predicting that Trump will be held accountable for January 6. Rather, I am observing–based on actual court filings and the evidence in them–that if he or his associates were to be held accountable, that would happen via conspiracy indictments, indictments that have already reached within two degrees of Trump’s closest associates. In a hearing yesterday, Christopher Wray answered one after another question about holding Trump accountable by talking about conspiracy indictments, so it seems he may agree with me.

Just the other day, for example, I suggested we might see prosecutions of those involved in the rallies, as opposed to busting into the Capitol.

Together, those posts argue that if any kingpins will be held accountable, it will be through a conspiracy prosecution. I note that one of the conspiracies has already reached back to the Willard Hotel, where Roger Stone was staying and where the call patterns suggest possible consultation with people present at the hotel. And I suggest that not only will there will be further conspiracies (I’m pretty confident about that prediction) but there may be more complex prosecutions tied to people who were involved in the rallies rather than the riot or who were discussed explicitly with Rudy Giuliani (I’m far less confident about that possibility).

That doesn’t mean Donald Trump, or even Roger Stone or Rudy Giuliani, are going to prison. It’s not clear what kind of evidence is out there. It’s not clear how loyal these famously paranoid people will be without the constant dangle of pardons that Trump used to buy silence during the Mueller investigation.

Earlier in the week, I noted that DOJ had already charged one of the speakers on January 5, Brandon Straka, and has been holding him in a kind of limbo awaiting what look like possible charges of obstruction and civil disorder.

Then there’s the case of Brandon Straka. He’s the head of the Walkaway campaign, and was a speaker on January 5. There’s no allegation he entered the door of the Capitol, though at a time when he was on the stairs, he was involved in attempting to take a shield from an officer and for that got charged with civil disorder (in addition to the standard trespass crimes). He obviously could be charged with obstruction, but that hasn’t been charged yet.

Last night, DOJ rolled out a conspiracy indictment that alleges that Alan Hostetter, another of the speakers on January 5, conspired with five other Three Percenters to “corruptly obstruct, influence, and impede an official proceeding, to wit: the Certification of the Electoral College vote.”

The indictment is slightly different than the other conspiracies charged against militias thus far (and therefore may be yet another degree more vulnerable to challenge), insofar as it charges 18 U.S.C. § 1512(k), the conspiracy charge tied to obstruction, rather than conspiracy itself 18 U.S.C. §371. Plus, just one of the accused defendants — Erik Warner — managed to enter the Capitol (another, Russell Taylor, chose not to enter because he didn’t want to do so while armed), so even the trespassing charges may be more vulnerable to challenge. Two of the men — Derek Kinnison and Warner — are also charged with obstruction for trying to delete the Telegram chat they used for organizational purposes.

But if this indictment withstands legal challenge, it is in some ways far more provocative than the existing militia conspiracies. That’s because it’s not just a militia conspiracy indictment.

The indictment is a hybrid: one that charges a group that is both a militia, the Three Percenters, but also men who played an organizational role in the larger event via an anti-mask turned into election conspiracy group, the American Phoenix Project. The conspiracy language of the indictment repeatedly describes the men flashing their Three Percenter signs or otherwise identifying themselves as such.

KINNISON attached a picture of himself, MARTINEZ, and WARNER with the following message: “From left to right, I’m Derek aka midnightrider the short guy, Tony aka blue collar patriot, Erik aka silvir surfer…. We are 3 percent so cal. Also coming with us is redline Ron [MELE].” In the photo, all three are flashing a hand signal that designates affiliation with a Three Percenter group.

[snip]

On January 2, 2021, KINNISON, MELE, WARNER, and MARTINEZ met at MELE’S house in Temecula, California. Before leaving in the SUV, the four men posed for a photograph in which they all made a hand gesture signaling affiliation with a Three Percenter group.

[snip]

MELE, MARTINEZ, KINNISON, and WARNER also congregated on the National Mall and posed for a photo there. In the photo, MARTINEZ, KINNISON, and WARNER made a hand signal showing affiliation with a Three Percenter group.

But the indictment also describes how Hostetter formed the Phoenix Project as an anti-mask group and then used it to sow violence against those who supported the democratic result of the 2020 election.

In Spring, 2020, ALAN HOSTETTER (“HOSTETTER”) founded the American Phoenix Project to oppose government-mandated restrictions arising from the COVID-19 pandemic. After the 2020 U.S. Presidential election, HOSTETTER, RUSSELL TAYLOR (“TAYLOR”), and PERSON ONE used the American Phoenix Project to support former President Donald J. Trump and protest what they asserted was a stolen or fraudulent election result. TAYLOR and PERSON ONE became directors of the American Phoenix Project in the Fall of 2020.

From at least in and around November 2020, HOSTETTER used the American Phoenix Project as a platform to advocate violence against certain groups and individuals that supported the 2020 presidential election results.

It describes how in a post on November 27, Hostetter demanded that “tyrants and traitors need to be executed.” It explains that at a rally in Huntington Beach on December 12, Hostetter gave a speech calling for executions.

The enemies and traitors of America both foreign and domestic must be held accountable. And they will. There must be long prison terms, while execution is the just punishment for the ringleaders of this coup.

This demand for long prison terms may come back to haunt Hostetter if he is ever sentenced for his attack on America.

Because of its hybrid structure, I suspect this indictment may serve as a node to connect other conspiracies together. Obviously, we should expect to see parallel Three Percenter conspiracies. Given how Guy Reffitt’s known actions that day parallel those of these conspirators, and given what prosecutor Jeffrey Nestler said in a status hearing for Reffitt the other day, I would be unsurprised if the superseding indictment Nestler said was imminent was a conspiracy of the Texas Three Percenters Reffitt was organizing.

I also expect that some of the 30 other people described to have taken part in the The California-DC Brigade Telegram chat described in this indictment to be charged in their own conspiracy indictment.

This group will serve as the Comms for able bodied individuals that are going to DC on Jan 6. Many of us have not met before and we are all ready and willing to fight. We will come together for this moment that we are called upon.

The indictment makes it clear that these Three Percenter defendants coordinated with other members of the DC Brigade using a coordinated radio channel, 142.422 on the day of the insurrection; they were conspiring with others, in addition to each other.

On the Telegram chat, Taylor explicitly talked about coming to DC armed.

I am assuming that you have some type of weaponry that you are bringing and plates as well.

Importantly, some of these other people from SoCal did engage in assault, and given Hostetter’s public statements plus the mention of “willing[ness] to fight” in this Telegram description and Taylor’s mention of weapons, the Three Percenter conspirators may be implicated by association in their violence (which, along with weapons charges that have not been charged, could serve as inducements for members of this conspiracy to flip).

So I believe this indictment will link in conspiracies with other Three Percenters and with other Southern Californian anti-maskers.

But the role of the rallies in the indictment is even more intriguing.

Hostetter set up an earlier organizational Telegram chat on November 10. It was used to plan travel to DC for the November Million MAGA March as well as the January 6 insurrection. In the language describing the overt acts in this conspiracy, the indictment focuses closely on posts and other events starting on December 19. It linked Trump’s Tweet calling for “Big protest in D.C. on January 6th.” It describes an Instagram post Hostetter posted under the Phoenix Project moniker the same day, calling for people to join him. It describes that Hostetter and Taylor reserved rooms in a Kimpton Hotel on December 20, earlier planning than many of the Oath Keepers. It describes how Taylor renamed the Telegram chat to “The Californian Patriots–Answer the Call Jan 6” on December 20.

Then, having tied the travel of these organizers of a network of radicalized Southern California Trump supporters to Trump’s call on December 20, the indictment describes that this group got booked to speak at the January 5 rally.

On December 30, 2020, KINNISON sent a text message to MELE, WARNER, and MARTINEZ in which he attached a flyer advertising the January 5, 2021 rally outside the Supreme Court, at which TAYLOR, HOSTETTER, and PERSON ONE were named speakers for the American Phoenix Project.

The indictment doesn’t describe how this happened, though the government obviously has enough comms to have some insight into it.

Then, that same day, December 30, Taylor posted his plans for the days of January 5 and 6. His post stated a clear plan to work with Stop the Steal to surround the Capitol.

Spread the word to other CALIFORNIA Patriots to join us as we March into the Capitol Jan 6. The Plan right now is to meet up at two occasions and locations: 1. Jan 5th 2pm at the Supreme Court steps for a rally. (Myself, Alan, [and others] will be speaking) 2. Jan 6th early 7am meet in front of the Kimpton George Hotel…we will leave at 7:30am shart and March (15 mins) to the Capital [sic] to meet up with the stop the steal organization and surround the capital. [sic] There will be speakers there and we will be part of the large effort for the “Wild Rally” that Trump has asked us all to be part of. [my emphasis]

This plan is structurally the foundation in the indictment for the leadership role these men played in the SoCal contingent of anti-maskers. For example, the next section describes how just after this post, the men created the DC Brigade chat, including its calls for anti-maskers from Southern California to come to DC armed to and expecting a fight.

DOJ has been working on this indictment for six months. That’s still lightning fast for a conspiracy indictment, but unlike the other militia conspiracies, it has not been jury-rigged together as one after another co-conspirators’ phones get exploited.

And what it does, at a minimum, is to tie the anti-mask community in Southern California into a network with the Three Percenters.

More importantly, it suggests the organizing surrounding the rally on January 5 included a premeditated plan to surround the Capitol on January 6.