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How the FBI Missed Alleged January 6 Leader Joe Biggs

Let’s talk about how central Joe Biggs is to what we know of the implementation of January 6.

It explains a lot that — at least according to a claim Biggs himself made — two FBI agents were relying on him for information against Antifa in the lead-up to the terrorist attack.

By late 2018, Biggs also started to get “cautionary” phone calls from FBI agents located in Jacksonville and Daytona Beach inquiring about what Biggs meant by something politically or culturally provocative he had said on the air or on social media concerning a national issue, political parties, the Proud Boys, Antifa or other groups. Biggs regularly satisfied FBI personnel with his answers. He also stayed in touch with a number of FBI agents in and out of Florida. In late July 2020, an FBI Special Agent out of the Daytona Beach area telephoned Biggs and asked Biggs to meet with him and another FBI agent at a local restaurant. Biggs agreed. Biggs learned after he travelled to the restaurant that the purpose of the meeting was to determine if Biggs could share information about Antifa networks operating in Florida and elsewhere. They wanted to know what Biggs was “seeing on the ground.” Biggs did have information about Antifa in Florida and Antifa networks in other parts of the United States. He agreed to share the information. The three met for approximately two hours. After the meeting, Biggs stayed in touch with the agent who had called him originally to set up the meeting. He answered follow-up questions in a series of several phone calls over the next few weeks. They spoke often.

I don’t mean they were complicit. Rather, that they weren’t even aware that he was in the middle of plans to conduct a terrorist attack on the nation’s Capitol is a testament to and perhaps an explanation for how the FBI missed all this.

Joe Biggs is a former Army Staff Sergeant who did tours of duty in Iraq and Afghanistan before he left with a medical discharge and PTSD. After some troubled years, he started contributing to InfoWars, serving as a key proponent of the PizzaGate scandal that turned John Podesta emails stolen by Russia into an attack on a pizza restaurant in DC; he was formally ousted from InfoWars shortly after the Comet Ping Pong attack, but remained in the InfoWars orbit. Alex Jones claims he gave Biggs a big severance when he left. After that, Biggs was a key proponent of the Seth Rich conspiracy, posting the manufactured FBI Report that served as a basis for the Fox News story that had to be retracted.

According to one of Biggs’ own court filings, after he moved to Florida to take care of his mother in 2018, he contributed the same propaganda skills that fostered an attack on Comet Ping Pong and falsely impugned a murdered DNC staffer to the Proud Boys, ginning up events to sow violence in the name of Antifa.

The same year, 2018, after the move to Florida, Biggs became active as an organizer, event planner and thought leader in the Proud Boys. He used his platform as a radio and social media personality to promote Proud Boy events and ideas. In particular, he personally planned two major events: rallies in Portland, Oregon in both 2019 and 2020 designed as counterdemonstrations against Antifa, which had been active in and around Portland for over two decades.

His presence in Florida put him in close proximity to Enrique Tarrio and (as if his ties to InfoWars didn’t already do so) through him Roger Stone.

When Trump called out the Proud Boys in his first debate against Joe Biden, Biggs responded, “President Trump told the proud boys to stand by because someone needs to deal with ANTIFA . . . well sir! we’re ready!!” (Note, this hasn’t shown up in DOJ filings.)

Immediately after and in the weeks after the election, Biggs kept declaring war. “It’s time for fucking War if they steal this shit.” “No bitch. This is war.” ““This is a war on Americanism. This is only the beginning.”

On December 11, the Proud Boys (at least Enrique Tarrio and Ethan Nordean) appeared prominently at a Stop the Steal event with InfoWars personality Owen Shroyer. There was coordination between the militias at a march the following day, after which Enrique Tarrio destroyed a Black Lives Matter banner from the Asbury United Methodist Church in DC.

In the days after both the DC even and an event involving Stone in Florida, Oath Keeper Kelly Meggs claimed he organized a Florida-based “alliance” between the Oath Keepers, Proud Boys, and 3%ers.

On Christmas Eve, Meggs specifically tied protection at the January rally, probably of Stone, and coordination with a Proud Boy, almost certainly Tarrio, in the same text.

In the days after, both Tarrio and Biggs posted plans to dress like Antifa rather than in their signature yellow and black.

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

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

On December 30, Southern California 3%er Russell Taylor described a plan to meet at the Capitol and — in conjunction with Stop the Steal — 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 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]

This plan — surrounding the Capitol — was what Stop the Steal figures partially carried out on January 6.

On January 4, when Tarrio arrived in DC for the riot, he was arrested for his attack on the Black Church in December, whereupon he was found with weapons that are unlawful in DC. In the wake of Tarrio’s arrest, Ethan Nordean was supposed to be in charge of the operation. But around 9:08PM the day before the riot (these texts reflect Nordean’s Washington state time zone, so add three hours), someone said he had not heard from Nordean in hours.

Minutes later, Biggs explained that “we just had a meeting w[i]th a lot of guys” and “info should be coming out.” While redacted in these texts, the superseding indictment describes that he also notes he had just spoken with Tarrio.

 

He further explained that he was with Nordean and “we have a plan.”

Biggs then says he gave Tarrio a plan.

Ethan Nordean may have been in charge on January 6. But Biggs seems to have been the one working most closely with Tarrio, through whom at least some of the inter-militia coordination worked.

After all that, the Proud Boy leaders agree to meet at 10AM the next day.

As captured by the WSJ, the next day, after the Proud Boys met at the Washington Monument, they then marched the East side of the Capitol first, but then later approach it from the Northwest. Just before Trump started speaking and before a broader call to assembly tied to 1PM, at 12:52 Biggs said something to Ryan Samsel, who then kicked off the assault on a series of barricades, giving a police officer a brain injury in the process.

Proud Boys Dominic Pezzola and Billy Chrestman were among the leaders of the next confrontation. After a series of fights, at 2:13, Dominic Pezzola broke through a window in the Capitol. Biggs followed him, with some other Proud Boys (in this picture, Paul Rae) in tow, a minute later.

Meanwhile, even as Biggs was leading a mob of people in a violent attack on the Capitol, Alex Jones — Biggs’ former employer — was leading a larger mob of people from the Ellipse, where they had just been instructed by their President that “we’re going to the Capitol, and we’re going to try and give…we’re going to try and give our Republicans, the weak ones because the strong ones don’t need any of our help. We’re going to try and give them the kind of pride and boldness that they need to take back our country.” Jones stopped when he got to the Capitol and gave a speech.

According to Stacie Getsinger, a woman from South Carolina who was arrested for trespassing in June who was listening to Jones at that first speech, Jones told his audience to go to the other side of the building (which would be the East side), because that’s where Trump’s next speech would be.

She and her husband did. Trump gave no speech, but they were among the first wave of people to breach the East entrance.

Alex Jones went to the other side of the Capitol, too. Even before he did, though, Oath Keeper Jason Dolan was on the stairs, waiting.

As Dolan waited, Jones and his entourage (including Ali Alexander and the recently arrested Owen Shroyer) pushed up the stairs stack-style.

Meanwhile, at some point, former InfoWars employee and Florida militia member reportedly joined in an alliance with the Oath Keepers by fellow Floridian Meggs, Biggs left the Capitol from one of the West entrances, walked around it, and assembled on the East Steps with Arthur Jackman, Rae, and two others (probably Kevin and Nathan Tuck, and possibly Edward George; the Tucks are both — now former — cops, and Jackman’s and one of the Tucks’ spouses still are cops).

At 2:39, Rae and Jackman can be seen approaching the East Door with Biggs.

At around 2:40, they entered the East door.

At almost exactly the same time, Jason Dolan and Kenneth Harrelson entered the door along with the Oath Keeper stack led by Kelly Meggs (this is believed to be a picture Harrelson took of Dolan filming the entry; if you watch the video you can see both signs visible in the Biggs photo, making it clear that the people kitted out with helmets in that picture are the Stack).

People like the Getsingers — who were brought there by Alex Jones — pushed through around the same time.

Something brought Joe Biggs, Florida Oath Keepers Kenneth Harrelson and Jason Dolan, along with former Biggs employer Alex Jones to the top of the East steps, along with the mob that Jones brought on false pretenses. Shortly thereafter, Florida Oath Keeper head Kelly Meggs would bring a stack of Oath Keepers through the same door and — evidence suggests — in search of Nancy Pelosi, whom Meggs had talked about killing on election day.

Joe Biggs kicked off the riot on the West side of the building.

Then he went over to the East side to join his former employer Alex Jones and a bunch of Oath Keepers, led by fellow Floridians, to lead a mob back into the Capitol.

West side. Joe Biggs. East side. Joe Biggs.

This is the guy a couple of FBI Agents in Daytona believed was a credible informant against Antifa.

[Thanks to Benny Bryant for continuing to help me sort through the Oath Keeper side of this, and thanks to gal_suburban for sharing the video of Jones on the East side.]

Zia Faruqui Doesn’t Want to be DOJ’s Fall-Guy for Media Policy Secrecy

As I noted, on Friday, InfoWars personality Owen Shroyer was charged — at this point, with just trespassing — in the January 6 insurrection. But as I also noted that his affidavit, “is interesting because it clearly lays out evidence — at a minimum! — that he could be charged with obstruction because he specifically talked about obstructing the vote certification on January 5.” As a general practice, the government has arrested many non-violent January 6 defendants on trespassing charges and then fleshed out any further charges afterwards (in part, because that maximizes the opportunity to get people to cooperate).

Tuesday, some documents were unsealed that reveal I’m not the only one who thinks so. So, apparently, does Zia Faruqui, one of three DC Magistrate judges dealing with all the January 6 cases as they come in (and, of note, until last year an Assistant US Attorney in the DC US Attorney’s Office).

Faruqui attempts to hold the government to public record standards

We know what Faruqui thinks because he has been trying to force the government to treat court records as the public documents they’re supposed to be, as he did here.

Not long after he became a Magistrate judge, Faruqui got stuck with government requests to collect journalists’ communications that were predictably controversial when they were disclosed. In an order issued in July, Faruqui scolded the government for suggesting they could seal the records request (along with its tactically unique approach to getting journalists’ records) indefinitely.

A sealed matter is not generally, as the government persists in imagining, “nailed into a nondescript crate, stored deep in a sprawling, uncataloged warehouse.” Leopold, 964 F. 3d at 1133 (citing RAIDERS OF THE LOST ARK (Lucasfilm Ltd. 1981)). Rather, it is merely frozen in carbonite, awaiting its eventual thawing. Cf. THE EMPIRE STRIKES BACK (Lucasfilm Ltd. 1980)

As Faruqui describes it in an order drafted last week along with the arrest warrant for Shroyer, but not released until yesterday, the government was trying to do the same with Shroyer’s arrest warrant. When the government asked for the arrest warrant, he asked if they would memorialize their basis for finding that Shroyer’s arrest met DOJ’s media guidelines. Magistrate Judge Michael Harvey forced the FBI agent to include language addressing the issue earlier this year in the arrest warrant for Matthew Purse; in that case, the Agent simply included language explaining how he had determined that Purse was not a member of the media.

But, as Faruqui describes it in his order, in Shroyer’s case, the government was unwilling to assert that they had followed their media guidelines with Shroyer in the affidavit, much less explain their thinking surrounding it.

On August 19, 2021, the undersigned had a telephone conference with representatives of the USAO regarding the Complaint. The undersigned inquired as to whether:

  • the Department of Justice considered Shroyer to be a member of the media;
  • the USAO had complied with Department of Justice policies regarding the arrest of media members; and
  • the Assistant U.S. Attorneys would memorialize the answers to these two questions in the Complaint, consistent with their prior practice.

The USAO represented that it had followed its internal guidelines but was unwilling to memorialize that or explain the bases for its determinations

Afterwards, Faruqui sent a draft of his order to USAO (that is, to his former colleagues). One of his former supervisors, John Crabb, wrote back and said that DOJ doesn’t have to share this because it would reveal internal deliberations.

[A] requirement to proffer to the Court how and on what basis the Executive Branch has made determinations under these internal Department policies would be inconsistent with the appropriate role of the Court with respect to such policies and would risk disclosing internal privileged deliberations. Moreover, such inquiries could risk impeding frank and thoughtful internal deliberations within the Department about how best to ensure compliance with these enhanced protections for Members of the News Media.

Crabb further explained that the Shroyer case is distinguishable from the Purse case.

As the Court notes, Addendum Order at 7-8, this Office has conferred on previous occasions with the Court regarding certain aspects of the Department’s media polices. In the main, those situations are distinguishable; and, in any event, the government is not bound by those prior actions.

Probably, this situation is distinguishable because Purse was affirmatively shown not to be media. Shroyer clearly is, in some sense. Under DOJ’s media guidelines (assuming they’re not using the exception for a suspected foreign agent), that leaves two possibilities. Either they deemed some of the things for which Shroyer got arrested to be outside his newsgathering role. And/or they determined he had committed a crime in the course of his newsgathering activities, the equivalent of hacking to obtain source materials for journalism.

DOJ’s reliance on the Deferred Prosecution Agreement, including Shroyer’s failure to even begin paying off his community service debt before January 6, provided DOJ with an easy way to publicly establish a crime largely independent of his actions on January 6, which is one of the reasons I was so interested in how they had arrested him.

Faruqui’s probable cause determination

But Faruqui’s order may hint at what DOJ is really thinking.

Faruqui’s order is organized this way:

I. Introduction, explaining why he’s writing this order.

A. Events of January 6th, explaining the content of Shroyer’s propaganda (including propaganda from before he trespassed on January 6)

B. Prior Criminal Conduct, explaining Shroyer’s past disruption charge and his DPA

C. Statutory Violations, explaining the basis for the two misdemeanors Shroyer was charged with

D. Inquiry of the Court, explaining that Faruqui tried to make DOJ go on the record for how this complied with their media guidelines

II. Standard, explaining the reasons for treating the press with sensitivity and laying out the parts of the media guidelines that focus on protecting newsgathering

III. Analysis, describing how on two earlier occasions DOJ had provided more on the record than they had here, but were unwilling to do so here, then restating Shroyer’s actions

IV. Conclusion, finding that even a credentialed journalist committing the same actions Shroyer had would have reached probable cause for a crime but also finding that DOJ gave an unsatisfactory answer about how it applied its media guidelines [my emphasis]

It’s the last bit — the end of Section III and the short Section IV — I’m most interested in. In one paragraph, Faruqui explains that DOJ said something to him (presumably before he approved the warrant on the 19th) confirming they had followed the media guidelines, but were unwilling to put that they had done so or what their analysis was in writing. That’s what led him to draft this order and ask again for them to put it in writing.

Yet here the government is unwilling to address its compliance with its internal regulations regarding the press. When questioned by the Court, the USAO’srepresentatives respectfully stated that they had followed such guidelines but would not formally state this in their pleadings; nor would they memorialize the reasons underlying their determination that Shroyer was not “a member of the news media” who had committed the instant offenses “in the course of, or arising out of, newsgathering activities.” 28 C.F.R. § 50.10(f)(2). The events of January 6th were an attack on the foundation of our democracy. But this does not relieve the Department of Justice from following its own guidelines, written to preserve the very same democracy.

The next paragraph restates Shroyer’s alleged crime, but combines stuff that appears in sections I.A. and I.C., above, which results in a description of alleged crimes that go well beyond trespassing (though Faruqui does review how Shroyer knew he couldn’t “engage in disruptive and riotous behavior” at the Capitol).

Shroyer’s January 2020 arrest gave him clear notice that he could not engage in disruptive and riotous behavior at the Capitol Building and Grounds. Yet beginning on January 5, 2021, Shroyer began urging others to join him in protest at the Capitol Building and Grounds premised on the false claim that the election was “stolen.” Statement of Facts at 3. This conduct continued on January 6, 2021, when Shroyer made additional statements urging on the mob and personally entering the restricted area of the Capitol building in brazen defiance of his DPA. See Statement of Facts at 4–6. His stated goal was clear: to stop former Vice President Pence from certifying the election by “tak[ing] the Capitol grounds”. Id. at 6. Shroyer described his personal role in the riot: “We literally own these streets right now.” Id. at 6. On January 6th, Shroyer was “aid[ing], conspir[ing] with, plan[ning], or coordinat[ing] riotous actions.” United States v. Munchel, 991 F.3d 1273, 1284 (D.C. Cir. 2021).

In the bolded language, Faruqui describes obstruction as it is being charged in January 6. He then purports to cite from Munchel, the DC Circuit decision that DC judges have used to separate those who assaulted cops and those who masterminded the attack from those who pose less of a threat going forward. Only the quote doesn’t appear in the opinion, not even in other grammatical form. Faruqui’s citations should end before (or bracket) the word “riotous.” Here’s how the passage appears in Munchel:

In our view, those who actually assaulted police officers and broke through windows, doors, and barricades, and those who aided, conspired with, planned, or coordinated such actions, are in a different category of dangerousness than those who cheered on the violence or entered the Capitol after others cleared the way.

This is, as I noted, the language that District judges have used since Munchel in justifying detaining people. Faruqui is seemingly saying that Shroyer did things — and this language has primarily been used with militia leadership — that have gotten other people detained. Effectively, Faruqui has suggested that Shroyer is, like Kelly Meggs and Joe Biggs, one of the key leaders in this attack.

After having likened Shroyer to the likes of Meggs and Biggs, then, Faruqui says (in the conclusory section) that there is probable cause that Shroyer committed the crimes he has just described.

The undersigned finds there was probable cause to believe Shroyer committed the above-described violations.

Coming immediately after the sentence likening Shroyer to Meggs and Biggs, this language might not refer solely to the trespass charges approved in the warrant, but also to the broader language Faruqui used, encompassing obstruction and conspiracy.

And indeed, the affidavit does substantiate (at least) obstruction charges, even if it doesn’t include that among the charges (as I noted before all these documents were unsealed).

Who is making this case — Faruqui or DOJ?

As noted above: according to Faruqui’s order, it’s not that the government didn’t say whether it had adhered to its media guidelines. He explicitly says that they did.

The USAO represented that it had followed its internal guidelines but was unwilling to memorialize that or explain the bases for its determinations.

[snip]

When questioned by the Court, the USAO’s representatives respectfully stated that they had followed such guidelines but would not formally state this in their pleadings; nor would they memorialize the reasons underlying their determination that Shroyer was not “a member of the news media” who had committed the instant offenses “in the course of, or arising out of, newsgathering activities.” [my emphasis]

Rather, DOJ refused to put that it had in writing.

Which makes it unclear whether this extrapolation from Shroyer’s arrest affidavit, from the details that substantiate the two trespassing charges in it to the details that could not have any role in a trespassing charge but which show that Shroyer pre-meditated an attempt to stop the vote count, is Faruqui’s own extrapolation or something he heard in his discussions with DOJ last week, the things they’re not willing to put into writing.

Contrary to some analysis of this order, it is not a prospective order for anything — Faruqui had already approved the arrest warrant when he issued it. Nor is Faruqui saying that he doesn’t know if DOJ considers Shroyer a journalist (though he’s more oblique on that point than he is on others).

Rather, the reason he wrote this order was to memorialize what he understands, from conversations he had with DOJ, went on.

The Court issues this addendum opinion to ensure that the record accurately reflects: 1) the conversations between the Court and the Department of Justice; and 2) the Department’s break with its prior practice of confirming its adherence to these regulations.

[snip]

The Court issues this addendum opinion in response to the USAO’s break with prior practice, and to ensure that the judicial record accurately reflects: 1) the conversations between the Court and the USAO; and 2) the undersigned’s understanding of the steps taken by the Department to comply with 28 C.F.R. § 50.10.

What Faruqui doesn’t say, though, is where in this opinion DOJ’s representations (at a minimum, that they did, in fact, follow media guidelines) end and where his own analysis begins. That is, we don’t know whether the analysis that implies Shroyer is one of the key planners of this operation, just like Biggs and Meggs, is Faruqui’s analysis or what DOJ explained, verbally but not in writing, when they explained that they had complied with media guidelines.

Update: DOJ has unsealed an Information charging Shroyer just with trespassing.

The *How* of Owen Shroyer’s Arrest

About an hour after I wrote this in my post on the problems with a Reuters article about the January 6 investigation…

Because of the other problems with this article, I don’t know what to make of the single piece of news in it. As noted above, a former senior law enforcement official claims that, “there was no grand scheme with Roger Stone and Alex Jones and all of these people to storm the Capitol and take hostages.” That makes sense with respect to Alex Jones; his videographer was arrested long ago and remains charged only with trespass.

Zoe Tillman first reported that InfoWars’ Owen Shroyer had been charged. A picture from the affidavit shows Shroyer on stage with Alex Jones and (though he’s harder to see) Ali Alexander, a key organizer for the events underlying the riot. Jones and Alexander were critically responsible for bringing the crowd first to DC and then to the Capitol, and Jones also allegedly paid for some of the rally (at a time when his show was in real financial trouble).

How DOJ charged Shroyer — at this point, just for trespassing charges — is as interesting that they did.

Shroyer is not alleged to have gone into the Capitol. The closest the affidavit places him is on the East side steps, right behind Jones and (I believe) with Alexander right in front of Jones.

The inclusion of this picture reminds me of how often Oath Keepers filings talk about the others who were also on the East side at the time they breached the Capitol.

Not entering the Capitol is not itself a bar on charges. After all, Couy Griffin was charged for his presence on the West steps, charges that Trevor McFadden didn’t throw out when he had a chance.

But Shroyer is a media personality with a claim to being a journalist. So DOJ offers more to justify it.

As the affidavit lays out, back during Impeachment 1.0 on December 9, 2019, Shroyer got himself arrested for accusing Jerry Nadler of treason.

He wasn’t charged for that until January 17, 2020, and so didn’t resolve the case with a Deferred Prosecution Agreement until February 25, 2020. What happened with Shroyer is what other January 6 defendants claim should have happened to them: misdemeanor charges in DC Superior Court, followed by a deferral.

As part of Shroyer’s DPA, he was required to do 32 hours — just four days! — of community service. He seems to have fiddled around with what entity he was going to do service with, but at one point he claimed he was going to do it with the Sinai Pentecostal Church’s Reverend Samuel Montoya, who also happens to be the father of InfoWars’ videographer, who himself got arrested in April.

Which is another way of saying that Shroyer was dicking around with the meager community service he was required to do as part of his DPA.

The other part of Shroyer’s DPA, aside from the community service he was clearly dodging, was a requirement that he not similarly engage in such disorderly conduct again at the “Capitol,” which was defined by a map that Shroyer signed, which actually may be broader than the protected space that DOJ is charging in the January 6 cases (and so easily encompasses the stage on which Shroyer appeared with Alex Jones).

Due to the nature of the offense, the DPA included the following special conditions for SHROYER:

1. The defendant agrees not to utter loud, threatening, or abusive language, or to engage in any disorderly or disruptive conduct, at any place upon the United States Capitol Grounds or within any of the Capitol Buildings with intent to impede, disrupt, or disturb the orderly conduct of any session of the Congress or either House thereof, or the orderly conduct within any such building of any hearing before, or any deliberations of, any committee or subcommittee of the Congress or either House thereof.

2. The defendant agrees not to parade, demonstrate, or picket within any of the Capitol Buildings. 3. The term “Capitol Buildings” means the United States Capitol, the Senate and House Office Buildings and garages, the Capitol Power Plant, all subways and enclosed passages connecting 2 or more of such structures, and the real property underlying and enclosed by any such structure.

In addition, the term “United States Capitol Grounds” was defined to include an area delineated in a map attached to the DPA spanning the Capitol grounds from 3rd Street NW on the west side of the Capitol building, to 2nd Street SE on the east side of the Capitol building (see Exhibit A). SHROYER and his attorney each signed an Acceptance and Attorney’s Acknowledgement, respectively, for the DPA. As a result of the DPA, SHROYER had special knowledge of what areas in Washington, D.C. in and around the U.S. Capitol constituted the U.S. Capitol Grounds. [my emphasis]

In other words, whereas the thousands of other people participating in the January 6 riot might believe they’d only get into trouble if they walked in the building, Shroyer had notice that the protected grounds were broader than that. And he not only may have been subject to a broader protected grounds than those other thousands of people, but it was a violation of his DPA to do it.

Plus, the government claims he played fast and loose with his community service, which meant that even though his crime was committed on December 9, 2019, his DPA remained in place until … well, it’s still in place because Shroyer did only 30 hours, rather than 32 hours, of community service, but it certainly was in place on January 6, because he had done none of his community service at that point.

As of January 6, 2021, the DPA remained in effect. SHROYER had not completed, nor reported the completion of, any of the 32 hours of community service as required pursuant to the DPA. On February 5, 2021, counsel for SHROYER emailed the Government to report that SHROYER allegedly “has completed his 32 hours of community service.” An attached log provided by SHROYER’s counsel reported that SHROYER, in fact, performed only 30 hours of community service beginning on January 19, 2021 through February 4, 2021. Thus, as of January 6, 2021, SHROYER had not completed any hours of community service as required by the DPA, and as of February 5, 2021, his community service obligation remained incomplete.

The rest of this arrest affidavit is gratuitous, a speaking document to nod to where they might go with him. After all, Shroyer was uniquely prohibited from entering the grounds and being an asshole on January 6. That’s all the government would need to charge him.

But the rest is interesting because it clearly lays out evidence — at a minimum! — that he could be charged with obstruction because he specifically talked about obstructing the vote certification 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

That is, this is where these charges could go, once they arrest Shroyer and maybe even search his phone. They’re not charging it here — and Shroyer was legally entitled to be an asshole at Freedom Plaza on January 5, as opposed to the Capitol. But they’re making it clear where they could go.

I suspect they hoped to arrest Shroyer at a status hearing scheduled for today, but he didn’t show.

Shroyer was supposed to appear in DC Superior Court on Friday for a hearing to update the judge on the status of his case, but he did not show up, according to the docket. The prosecutor didn’t ask for a bench warrant to arrest him for failing to appear, and the judge set another hearing for Sept. 23. A lawyer listed as counsel for Shroyer said that was a mistake and he was not involved in the case.

Instead, he announced the charges on his InfoWars show, looking a hell of a lot more panicked than a well-funded white guy facing misdemeanor trespass charges should be, even as a recidivist.

This is just one of 580 arrest affidavits accusing someone of trespassing. But it certainly seems to be more than that.

Update: In my post on how one would prosecute Donald Trump, I noted that DOJ has been coy about what went down at a December 12 Stop the Steal rally, probably because (I mused) they haven’t included Enrique Tarrio in any of the conspiracy indictments. As Just Security reported back in February, Shroyer was part of that event, too.

In the video, Owen Shroyer, an Infowars personality, speaks to the crowd on a bullhorn. He is standing next to Tarrio. Shroyer hands Stone the bullhorn. Stone gives brief remarks standing beside Nordean, who appears to have his hand on Stone’s shoulder. “We will fight to the bitter end for an honest count of the 2020 election. Never give up, never quit, never surrender, and fight for America!” Stone tells the crowd. After his brief remarks, Stone passes the bullhorn back to Shroyer. Tarrio joins Stone and Nordean. Tarrio and Stone engage in an inaudible dialogue as Shroyer continues to rouse the crowd. “We got stabbed in the back by the Supreme Court tonight,” shouts Shroyer. “This was never their revolution. This is our revolution!”

Update: Apparently the stage on which Owen and Jones were is within what DOJ is treating as restricted area, but thus far has not arrested anyone for. I do believe it is the case, however, that Owen’s restricted area is larger than the one DOJ has used for January 6.

Update: Corrected that Reverend Montoya is the father of videographer Sam Montoya, per JK.

Mutually Assured Blackmail: Roger Stone Tries to Undercut Steve Bannon’s Power

Roger Stone is trying (thus far unsuccessfully) to pick a fight with Steve Bannon and the Mercers.

First, earlier in June on Alex Jones’ show, Roger Stone accused Bannon, among other things, of lying in his testimony against Stone and blackmailing Trump to get a pardon.

Stone: Let’s me very clear. Not only did Steve Bannon steal the name of my Infowars show with the great American Owen Shroyer, ‘The War Room,’ but he testified falsely at my trial against me. He was an informant for Robert Mueller. If you take his sworn testimony before the House Intelligence Committee, which was sealed at the time of my trial, and his testimony on the stand at my trial, he clearly perjured himself in my trial.

So right now, here, today, I am challenging Steve Bannon to come on Infowars and debate this, let’s have it out. Alex, you can moderate it, so it stays civil. But he needs to answer as to why he was working with Robert Mueller to destroy me and send me to prison. So there it is. The challenge, the gauntlet has been laid down, big Steve. Cmon, sloppy Steve. We can find a suit and tie for you that’s clean, I think. And you should come on Infowars and answer what I just said.

And by the way, all you little Bannon groupies who want to go on social media and challenge me? I wouldn’t suggest it. Because I will merely block you. Facts are facts. As the NYPost reported, and Jonathan Turley, the GWU law professor who read both transcripts and concluded, Bannon, clearly perjured himself at one place or the other. And since the entire question on which I was being tried was lying to the House Committee, you would think that it would be germane, it would be important. As Professor Turley pointed out, there were 40 lawyers in the room at the time that Bannon testified prior to my trial.

[Alex Jones agrees, asks why Stone has turned on Bannon, and Stone claims Bannon only testified against Stone because he was under investigation himself]

He should not be able to put himself forward as an advocate  for the America First agenda. Steve Bannon publicly accused the President of having Alzheimers, he said the Trump Organization was a criminal enterprise, he said that Trump would be prosecuted — I can do this almost verbatim. When the American people learn he’s not a billionaire, he’s just another scumbag.

[snip]

His defenders say, oh well that was two years ago. It doesn’t matter when it was. Steve Bannon called the President of the United States —

Jones: Well here’s the 64 Trillion dollar question. Why did Trump give him a pardon?

Stone: I think he was blackmailed. That’s what I think. That is my opinion.

More recently, Stone called on his groupies to stop using Parler and to “boycott these assholes,” the Mercers, generally.

Stone is absolutely right that Bannon perjured himself, though the record shows that he perjured himself before HPSCI, not the grand jury and Stone’s own trial. As I’ve noted, Bannon was basically reciting a White House script handed to him at that HPSCIi appearance. But over the course of multiple interviews with Mueller’s team, Bannon was slowly made to hew closer to the truth about Stone and other things, presumably because he was faced with more and more documents showing that his original story did not resemble the documentary record (HPSCI got none of these documents, which is how he was able to read directly from the White House script).

I’ll return to Stone’s war on the Mercers.

But given Stone’s claim that Bannon blackmailed Trump for a pardon, I want to look at a detail from Bannon’s October 26, 2018 interview with Mueller’s team that goes to the core of Stone’s own successful effort to blackmail Trump for, first, a commutation, and then a pardon.

Throughout his Mueller interviews, Bannon excused his coordination with Stone by explaining that the rat-fucker could fuck up your life if you didn’t placate him, and so he had no choice but to keep him happy. In the October 2018 interview, Bannon seemingly responds to a question about whether he and Trump talked about Stone with a weird chain of associations.

While BANNON was at Breitbart in 2013-2015, BANNON had a strong relationship with [redacted]. BANNON heard from [redacted] STONE was still talking to Trump and was an advisor. STONE subsequently made those statements to BANNON as well. BANNON was suspect and upset. BANNON believed you had to eep TRUMP “on program.” While BANNON was on the Trump Campaign he never heard any mention of STONE from TRUMP or anyone else on the campaign. After the win, STONE tried a full court press in order to get a meeting with TRUMP. [redacted] eventually set up a meeting with TRUMP and STONE in early December 2016 on the 26th floor of Trump Tower. TRUMP didn’t want to take the meeting with STONE. TRUMP told BANNON to be in the meeting and that after 5 minutes, if the meeting hadn’t concluded, to throw STONE out. STONE came in with a book he wrote and possibly had a folder and notes. [full sentence redacted] TRUMP didn’t say much to STONE beyond “Thanks, thanks a lot.”. To BANNON, this reinforced STONE [redacted] After five to six minutes, the meeting was over and STONE was out. STONE was [redacted] due to the fact that during the meeting TRUMP just stared. This reinforced what BANNON thought about STONE, that STONE was a [redacted]. BANNON never heard TRUMP talk about STONE. The 2010 conversation with TRUMP about STONE was the only time, to the best of BANNON’s recollection. BANNON never heard that STONE was talking to candidate TRUMP while BANNON was on the campaign. BANNON never asked then candidate TRUMP if he talked with STONE. Candidate TRUMP never could have talked to STONE, without BANNON knowing about it, and he had the opportunity to do so. BANNON was not aware of who TRUMP talked to in the evenings and they could have had a phone call. BANNON was not aware of who TRUMP was talking to in the evening, but he was definitely talking to people. BANNON did not have visibility into that. TRUMP was not shy about throwing names out of people he had talked to, and he never said STONE.

What appears to be entirely an expression of Bannon’s stream-of-consciousness in response to a question about whether he knew of Stone communicating with Trump during the campaign goes like this:

  • The only time Trump ever raised Roger Stone was in 2010, during his earlier dalliance with running for President
  • Bannon was upset to learn of Stone’s involvement in Trump’s 2016 run (even though Bannon was perfectly happy to coordinate with Stone before he joined the campaign)
  • Bannon never heard any mention of Stone from Trump or anyone else during 2016 (even though Bannon was in direct contact with Stone himself even after joining the campaign)
  • In December 2016, Bannon attended a Trump Tower meeting between Stone and Trump to which Stone brought his book and possibly a folder and notes, a meeting Trump purportedly didn’t want, and in which Trump said almost nothing but instead just stared
  • Bannon really never heard of Trump talking to Stone while he was on the campaign, but it’s possible such calls took place during the evening hours and he simply didn’t know about it

The answer is not all that credible: we know that Stone was calling Trump via multiple channels, including through Keith Schiller during campaign hours, for example. But nevertheless, Bannon claimed not to know anything about calls between Stone and Trump.

Still, right in the middle of sustaining that claim, Bannon told about a meeting that Stone apparently demanded in December 2016 to which he brought his book depicting how he claimed Trump had won — a book in which Stone would later be scrupulously careful not to claim credit for the victory — and, the interview describes, “possibly a folder and notes.”

At the time of that interview in October 2018, Mueller only had one witness we know of who had mentioned those notes: a former employee of Stone’s who had been told the file “was important and that no one should touch it.”

53. On May 8, 2018, a law enforcement interview of [redacted] was conducted. [redacted] was an employee of Stone’s from approximately June 2016 through approximately December 2016 and resided in Stone’s previous New York apartment for a period of time. [redacted] provided information technology support for Stone, but was not f0rmally trained to do so. [redacted] was aware that Stone communicated with Trump during the 2016 presidential campaign, and afterward, both in person and by telephone. [redacted] provided information about a meeting at Trump Tower between Trump and Stone during the time [redacted] worked for him, to which Sterne carried a “file booklet” with him. Stone told [redacted] the file booklet was important and that no one should touch it. [redacted] also said Stone maintained the file booklet in his closet.

Given that this person worked for Stone through December 2016, the person’s description of Stone bringing the “file booklet” to a meeting at Trump Tower might even refer to the same meeting Bannon described, that five minute meeting that Trump had tried to avoid that Bannon had been ordered to attend, perhaps to serve as a witness and certainly as a way to ensure that Stone didn’t overstay his welcome.

But some weeks after the Bannon interview, a second witness would come forward and share, second-hand, that those notes were the contemporaneous notes that Stone kept of his “constant” communication with Trump during the campaign.

54. On December 3, 2018, law enforcement conducted an interview of an individual (“Person 1 “) who previously had a professional relationship with a reporter who provided Person 1 with information about Stone. The reporter relayed to Person 1 that in or around January and February 2016, Stone and Trump were in constant communication and that Stone kept contemporaneous notes of the conversations. Stone’s purpose in keeping notes was to later provide a “post mortem of what went wrong.”

Curiously, Mueller’s team didn’t mention Bannon’s inconclusive reference to those notes when they obtained a warrant to search Stone’s homes for them just a week after a January 18, 2019 grand jury appearance by Bannon, and if they knew the December 2016 meeting to be the same one Stone’s employee mentioned, they didn’t let on in their warrant affidavit. Nor is there any public follow-up I’ve noticed in the Bannon interview notes (though the government is withholding a 302 from summer 2019 and probably one from before that grand jury appearance). The copy of Bannon’s grand jury transcript that Stone is so incensed about was redacted, but if Bannon were asked about the notes in that meeting, it would have had to have been disclosed to Stone in advance of the trial.

Still, in the midst of an unconvincing denial of any knowledge that Stone and Trump were in any communication during the campaign, Bannon seems to have described a meeting to which Stone brought proof that he had been in constant communication during the campaign.

Stone is sure that Bannon got a pardon from Trump by blackmailing him.

The rat-fucker would certainly recognize the signs. Amid other forms of lobbying for a pardon, after all, Stone made three appearances that he knew Trump would see in which he made clear he could have avoided prison time if he had shared the content of the 36 conversations with Trump he had during the campaign (though the number varies), the conversations which we know Stone documented in that notebook.

DOBBS: We’re back with Roger Stone. And Roger, do you think you were targeted by Mueller, specifically to get dirt — to put you under pressure to get dirt on President Trump?

STONE: There’s no question whatsoever. After illegal leaks over a year saying I would be charged with treason and conspiracy against the United States, being the link between the Trump campaign and Russia. They indicted me on the flimsiest charges of lying to Congress even though there was no underlying crime for me to lie about. And then on July 24th, 2019, a member of the Mueller’s dirty cop squad approached one of my lawyers proposing a deal. If Stone would be willing to really re-remember the content of some 36 phone calls I had with candidate Trump, and admit that they were about Russia and WikiLeaks, they would be willing to perhaps recommend no jail time and I said, no. This President needs to be reelected, Lou. He is the greatest President in my lifetime, I would never give false testimony against him.

Stone made a record that could be used for blackmail, you see, a record that may have saved Stone from prison time.

And he is now accusing the guy who witnessed Stone presenting that record to Trump of likewise blackmailing Trump for a pardon.

Latex Gloves Hiding Evidence of Conspiracies: On the Unknown Adequacy of the January 6 Investigation

Since I’ve acquired new readers with my January 6 coverage and since the financial stress of COVID is abating for many, it seems like a good time to remind people this is not a hobby: it is my day job, and I’d be grateful if you support my work.

Update, 6/2: As this post lays out, Hodgkins’ plea was indeed just a garden variety plea. During the hearing he explained the latex gloves. He carries a First Aid kit around all the time and saw Joshua Black’s plastic bullet wound (though he didn’t know Black and didn’t name him in the hearing) and put gloves on in preparation to provide medical assistance. After Black declined his help, he took the latex gloves off.

On Wednesday, June 2, insurrectionist Paul Allard Hodgkins will plead guilty, becoming just the second of around 450 defendants to publicly plead guilty (particularly given the number of people involved, there may be — and I suspect there are — secret cooperation pleas we don’t know about).

NOTICE OF HEARING as to PAUL ALLARD HODGKINS: A Plea Agreement Hearing is set for 6/2/2021, at 11:00 AM, by video, before Judge Randolph D. Moss. The parties shall use the same link for connecting to the hearing.(kt)

This could be the first of what will be a sea of plea deals, people accepting some lesser prison time while avoiding trial by pleading out. But there’s one detail that suggests it could be more, that suggests Hodgkins might have knowledge that would be sufficiently valuable that the government would give him a cooperation deal, rather than just a plea to limit his prison time.

Hodgkins is one of the people who made it to the Senate floor and started rifling through papers there, which by itself has been a locus of recent investigative interest. But he is an utterly generic rioter, wearing a Trump shirt and carrying a Trump flag. According to an uncontested claim in his arrest affidavit, he told the FBI he traveled to the insurrection from Florida alone, by bus. Because the only challenge he made to his release conditions — to his curfew — was oral, and because the prosecutor in his case hasn’t publicly filed any notice of discovery (which would disclose other kinds of evidence against him), there’s nothing more in his docket to explain who he is or what else he did that day, if anything.

But one thing sticks out about him: before he started rifling through papers in the Senate, he put on latex gloves.

It’s not surprising he had gloves. During the pandemic, after all, latex gloves have been readily available, and I’ve wandered around with gloves in my jacket pocket for weeks. But he did show the operational security to put them on, when all around him people were just digging in either bare-handed or wearing the winter or work gloves they had on because it was a pretty cold day.

There’s just one other instance I know of where someone at the insurrection showed that kind of operational security (though there is one person identified by online researchers by the blue latex gloves he wore while playing a clear organizational role outside the Capitol). When one of the guys that Riley June Williams was with started to steal Nancy Pelosi’s laptop, Williams admonished him, “dude, put on gloves” and threw black gloves (which may or may not be latex) onto the table for him to use.

There’s no reason to believe there’s a tie (as it happens, Williams had a status hearing last week where her conditions were loosened so she can look for work). There is a cybersecurity prosecutor, Mona Sedky, who is common to both cases, which sometimes indicates a tie, but she is also on cases against defendants who have no imaginable tie to Williams. But Hodgkins exhibited the kind of operational security that, otherwise, only other people who seemed to be operating from some kind of plan exhibited.

My point is not that there’s a tie, but that we don’t know whether there’s something more interesting about Hodgkins, and we might not even learn whether there is on Wednesday, in significant part because if there is one, prosecutors may not want to share that information publicly.

And I think, particularly in the wake of Republicans’ successful filibuster of a January 6 Commission and discussions of whether there will be any real accountability, that’s a useful illustration about the limits of our ability to measure the efficacy of the investigation right now. Paul Hodgkins could be (and probably is) just some Trump supporter who hopped on a bus, or his latex gloves could be the fingerprint of a connection to more organized forces.

With that said, I’d like to talk about what we can say about the investigation so far, and where it might go.

Last week, when I read this problematic and in several areas factually erroneous attempt to describe the attack in military terms, I realized that readers new to my work may not understand what I do.

I cover a range of things, but when I cover a legal case, I cover the legal case as a means to understand what prosecutors are seeing. That’s different than describing the alleged crime itself; particularly given the flood of defendants, I’m not, for example, reading through scraped social media accounts from before the attack to understand what was planned in the semi-open in advance. But reading the filings closely is one way to understand where the criminal investigation might go and the chances it will be successfully prosecuted and if so how broadly the prosecution will reach.

I’m not a lawyer, though I’ve got a pretty decent understanding of the law, especially the national security crimes I’ve covered for 17 years. But my background in corporate documentation consulting and comparative literature (plus the fact that I don’t have an editor demanding a certain genre of writing) means I approach legal cases differently than most other journalists. For the purposes of this post, for example, my academic expertise in narrative theory makes me attuned to how prosecutors are withholding information and focalizing their approach to preserve investigative equities (or, at times, hide real flaws in their cases). Prosecutors are just a special kind of story-teller, and like novelists and directors they package up their stories for specific effects, though criminal law, the genre dictated by court filings, and prohibitions on making accusations outside of criminal charges impose constraints on how they tell their stories.

One of the tools prosecutors use, both in a legal sense and a story-telling one, is conspiracy. The problematic military analysis, linked above, totally misunderstood that part of my work (as have certain Russian denialists looking for a way to attack that doesn’t involve grappling with evidence): when I map out the conspiracies we’re seeing in January 6, I’m not talking about the overarching conspiracy that made it successful, how the entire event was planned. Rather, I’m observing where prosecutors have chosen to use that tool — by charging four separate conspiracies against Proud Boys that prosecutors are sloppily treating as one, and charging (as of yesterday) sixteen members of the Oath Keepers in a single conspiracy — and where they haven’t, yet — for a set of guys who played key roles in breaching the East door and the Senate chamber who armed themselves and traveled together. As that set of guys shows, prosecutors aren’t limited to using conspiracy with organized militias, and I expect we’ll begin to see some other conspiracies charged against other networks of insurrectionists. It’s virtually certain, for example, that we’ll see some conspiracies charged against activists who first organized together in local Trump protests; I expect we’ll see conspiracies charged against other pre-existing networks (like America First or QAnon or even anti-vaxers who used those pre-existing networks to pre-plan their role in the insurrection).

Conspiracies are useful tools for prosecutors for several purposes. For example, a conspiracy charge can change what you need to prove: that the conspiracy was entered into and steps taken, some criminal, to achieve the conspiracy, rather than the underlying crime. It can used to coerce cooperation from co-conspirators and enter evidence at trial in easier fashion. And it’s the best way to hold organizers accountable for the crimes they recruit others to commit.

If Trump, or even his flunkies, are going to be held accountable for January 6, it will almost certainly be through conspiracy charges built up backwards from the activities at the Capitol. I am agnostic on whether they will be, but it’s not as far a reach as some might think. This handy guide to conspiracy law that Elizabeth de la Vega laid out during the Mueller investigation provides a sense of why that is.

Conspiracy Law – Eight Things You Need to Know.

One: Co-conspirators don’t have to explicitly agree to conspire & there doesn’t need to be a written agreement; in fact, they almost never explicitly agree to conspire & it would be nuts to have a written agreement!

Two: Conspiracies can have more than one object- i.e. conspiracy to defraud U.S. and to obstruct justice. The object is the goal. Members could have completely different reasons (motives) for wanting to achieve that goal.

Three: All co-conspirators have to agree on at least one object of the conspiracy.

Four: Co-conspirators can use multiple means to carry out the conspiracy, i.e., releasing stolen emails, collaborating on fraudulent social media ops, laundering campaign contributions.

Five: Co-conspirators don’t have to know precisely what the others are doing, and, in large conspiracies, they rarely do.

Six: Once someone is found to have knowingly joined a conspiracy, he/she is responsible for all acts of other co-conspirators.

Seven: Statements of any co-conspirator made to further the conspiracy may be introduced into evidence against any other co-conspirator.

Eight: Overt Acts taken in furtherance of a conspiracy need not be illegal. A POTUS’ public statement that “Russia is a hoax,” e.g., might not be illegal (or even make any sense), but it could be an overt act in furtherance of a conspiracy to obstruct justice.

We know that Trump and his flunkies shared the goal of the conspiracies that have already been charged: to prevent the certification of the vote. Trump (and some of his flunkies) played a key role in one of the manner and means charged in most of the conspiracies: To use social media to recruit as many people as possible to get to DC. Arguably, Mike Flynn played another role, in setting the expectation of insurrection.

What’s currently missing is proof (in court filings, as opposed to the public record) that people conspiring directly with Trump were also conspiring directly with those who stormed the Capitol. But we know the White House had contact with some of the conspirators. We know that organizers like Ali Alexander and Alex Jones likewise had ties to both conspirators and Trump’s flunkies (an Alex Jones producer has already been arrested). We know that Flynn had other ties to QAnon (which is why I’ll be interested if the government ever claims QAnon had some more focused direction with respect to January 6). Most of all, Roger Stone has abundant ties with people already charged in the militia conspiracies, and was at the same location as some of the Oath Keepers before they raced to the Capitol in golf carts to join the mob. If Trump or his flunkies are held accountable, I suspect it will go through conspiracies hatched in Florida, and the overlap right now between the Oath Keeper and Proud Boys conspiracies are in Floridians Kelly Meggs and Joe Biggs. But if they are held accountable, it will take time. It’s hard to remember given the daily flow of new defendants, but complex conspiracies don’t get charged in four months, and it will take some interim arrests and a number of cooperating witnesses to get to the top levels of the January 6 conspirators, if it ever happens.

This post, which is meant to be read in tandem with this one, assesses developments in the last week or so in the Oath Keepers conspiracy case.

Jessica Watkins Defends Herself by Claiming the Armed Militia Parade Was Part of the Plan

In a bid to spring her client from jail pre-trial, Jessica Watkins’ attorney Michelle Peterson accuses the government, twice, of wielding rhetorical flourishes to portray Watkins’ actions in the worst light.

The government’s rhetorical flourishes aside, there is insufficient evidence to demonstrate that Ms. Watkins would be either a risk of flight or a danger to her community if she were released on stringent conditions.

[snip]

The government’s motion for detention is filled with rhetorical flourishes design to inflame the passions of its readers without supporting evidence, e.g., “Watkins single-minded devotion to obstruct though violence” p.1, “this was a moment to relish in the swirling violence in the air” p. 2, and references throughout to her attire as “camouflage.”

It’s true that the government motion for detention portrays Watkins’ actions as a grave threat.

The profoundly brazen nature of Watkins’s participation in the January 6, 2021 assault on the Capitol was uniquely dangerous and continues to impact security in the District and beyond. Watkins joined a violent mob that overwhelmed law enforcement and destroyed government property, re-creating in modern times events not seen in this nation since the War of 1812. In this backdrop, Watkins and her co-conspirators formed a subset of the most extreme insurgents that plotted then tried to execute a sophisticated plan to forcibly stop the results of a Presidential Election from taking effect. And she did this in coordination and in concert with a virulently antigovernment militia members.

But Peterson accuses the government of rhetorical excess while excusing Watkins’ own actions and inflamed self-description of them by suggesting that Watkins was simply helpless in the face of Trump’s lies.

His supporters said he would invoke the Insurrection Act to use the military to ensure his continued presidency despite the election results, which they viewed as fraudulently reported in large measure because of the rhetoric of the President, his congressional supporters, and the right-wing media.

[snip]

However, these statements if made, were made in November, shortly after the election in the wake of the then President’s heated rhetoric about the election being stolen.

[snip]

While some of the rhetoric she allegedly engaged in is troubling, she fell prey to the false and inflammatory claims of the former president, his supporters, and the right wing media.

Unless and until Trump’s own crimes get added to these conspiracy indictments, these detention memos will continue to dispute what to call the terrorist event that happened on January 6. Until that time, the government will be relying on legal maneuvers, like charging the Oath Keepers with abetting the physical damage to the Capitol — because the doors through which they breached the building suffered significant damage — as a way to get the presumption of detention tied to a domestic terrorism charge. And defense attorneys will continue to argue that entering the Capitol in military formation after two months of preparation for action in response to the election outcome does not amount to a crime of violence.

I don’t believe we need a domestic terror statute. But we need language to describe domestic terrorism. Because we don’t have agreed on language for this thing, an event that forced the Vice President, the Speaker of the House, and the Vice President-Elect to flee from threats of imminent assassination, these disputes will continue to struggle to fit these actions into our existing categories.

Still, even in Peterson’s description of the problem, there are problems with this story. Watkins’ brief admits that she engaged in apocalyptic rhetoric, but suggests that all happened in November, long before and dissociated from the apocalyptic event.

The government includes statements Ms. Watkins is alleged to have made about the election and the need to fight, kill, or die for rights and statements about being prepared to fight hand to hand. However, these statements if made, were made in November, shortly after the election in the wake of the then President’s heated rhetoric about the election being stolen. They are not even alleged to have been made about the January 6 events. The statements were not directed towards law enforcement and are as easily interpreted as being prepared to encounter violent counterprotesters as they had on earlier occasions. And importantly, according to the government, Ms. Watkins made it clear that she would do nothing that was not specifically requested by the President. However misguided, this shows an intent to abide by the law, not violate it. [my emphasis]

Peterson describes the events of January 6, by contrast, as the natural response of veterans anticipating that the then-President might invoke the Insurrection Act, as his disgraced former National Security Advisor Mike Flynn and others demanded.

His supporters said he would invoke the Insurrection Act to use the military to ensure his continued presidency despite the election results, which they viewed as fraudulently reported in large measure because of the rhetoric of the President, his congressional supporters, and the right-wing media. The report of the potential invocation of the Insurrection Act took root in the online community of Trump supporters and led many local militias to believe they would have a role if this were to happen. Ms. Watkins was one of those people. In November, she believed that the President of the United States was calling upon her and her small militia group to support the President and the Constitution and she was ready to serve her Country in that manner. However misguided, her intentions were not in any way related to an intention to overthrow the government, but to support what she believed to be the lawful government.

The problem is, these claims are totally refuted by the timeline.

Flynn was probably the earliest prominent advocate for martial law. That was on December 1, after the November comments in question. Watkins, meanwhile, was looking for a sign even before that, on November 9.

Her concern about taking action without his backing was evident in a November 9, 2020, text in which she stated, “I am concerned this is an elaborate trap. Unless the POTUS himself activates us, it’s not legit. The POTUS has the right to activate units too. If Trump asks me to come, I will. Otherwise, I can’t trust it.”

That’s before the earliest Trump incitement cited by the defense, a November 21 rally in GA.

See id., Donald J. Trump (@realDonaldTrump), Twitter (Nov. 21, 2020 3:34 PM) (Watch: Hundreds of Activists Gather for ‘Stop the Steal‘ Rally in Georgia https://t.co/vUG1bqG9yg via Breitbart News Big Rallies all over the Country.

The earliest moment when Watkins spoke specifically in terms of the Insurrection Act was December 29, long after some of her most inflammatory comments.

In a text exchange with Co-defendant Donovan Crowl on December 29, 2020, she informed, “[w]e plan on going to DC on the 6th” because “Trump wants all able bodied Patriots to come,” and how, “[i]f Trump activates the Insurrection Act, I’d hate to miss it.”

Yet as early as October 26, Watkins was already timing militia training to inauguration.

Watkins emphasized this point to another recruit on October 26, 2020, noting, “the election is imminent. We do have Basic Training/FRX coming up in January though … others who join before then without experience will be REQUIRED to attend for the full week. Donovan already has his Drill Sergeant mode going haha. The rest of us will be training with them to get us all field-ready before inauguration.”

That shows a continuity between Watkins’ pre-election statements and post election plans.

On November 9,2020, WATKINS, the self-described “C.O. [Commanding Officerl of the Ohio State Regular Militia,” sent text messages to a number of individuals who had expressed interest in joining the Ohio State Regular Militia. In these messages, WATKINS mentioned, among other things, that the militia had a weekJong “Basic Training class coming up in the beginning of January,” and WATKINS told one recruit, “l need you fighting fit by innaugeration.”

And some of her most inflammatory language came in mid-November, such as when, on November 17, she spoke of killing and dying for “our” rights.

I can’t predict. I don’t underestimate the resolve of the Deep State. Biden may still yet be our President. If he is, our way of life as we know it is over. Our Republic would be over. Then it is our duty as Americans to fight, kill and die for our rights.

and:

[I]f Biden get the steal, none of us have a chance in my mind. We already have our neck in the noose. They just haven’t kicked the chair yet.

Or, her comments on November 19 about going “underground if this coup works.”

Indeed, on November 19, 2021, Watkins went so far as to text a contact that, “If anything, we need to go underground if this coup works,” as well as for the need “to be cautious as hell going forward” since “[i]f they still this election, we are all targets after Jan 20th.”

Again, this precedes the first instance of incitement from Trump cited by Watkins’ attorney, on November 21.

Moreover, Peterson’s claim that when Watkins spoke of the beauty of the insurrection to a reporter, she was just referring to the National Anthem, is totally refuted by the actual record.

Their evidence is that 40 minutes after the Capitol had been breached, she went to the Capitol and entered the building. By that time, the door had already been opened. The government acknowledges that “the crowd aggressively and repeatedly pulled on and assaulted” the doors of the building to get inside, causing damage. Ms. Watkins is charged with aiding and abetting this offense, but there is no evidence that this was something she had a criminal intent to do. She would have to have shared in the intent to destroy property, when in fact, she attempted to stop people from destroying property. She talked of the beauty of the peaceful protest, but acknowledged that it was only beautiful until she started hearing glass break. When she spoke of the beauty, she was referring not to the violence, but to the chants of USA and the singing of the National Anthem.

In the actual interview, Watkins specifically spoke of “standing our ground” against the cops because “they attacked us.”

“To me, it was the most beautiful thing I ever saw until we started hearing glass smash. That’s when we knew things had gotten really bad.” Watkins also states, “We never smashed anything, stole anything, burned anything, and truthfully we were very respectful with Capitol Hill PD until they attacked us. Then we stood our ground and drew the line.”

Her claim that “they attacked us,” may reflect her co-conspirator Thomas Caldwell’s false claim that the cops were “teargassing peaceful protestors.”

On January 6,2021, at approximately 2:06 p.m., CALDWELL sent WATKINS a text message stating: “Where are you? Pence has punked out. We are screwed. Teargassing peaceful protesters at capital steps. Getting rowdy here… I am here at the dry fountain to the left ofthe Capitol[.]”

That is, it’s not just Donald Trump who riled her up. So did her buddies in the militia (as she riled up fellow members).

Moreover, Watkins’ lawyer makes much of the fact that Watkins’ formation did not enter the Capitol until 40 minutes after it was breached. But that was long after she operated on a belief that the cops had targeted “protestors,” and it reflected actions planned a week in advance.

Perhaps the most intriguing comments in Watkins’ filing — and the most unintentionally damning — are the description of Watkins serving as “escort” or “security” for pro-Trump politicians.

Ms. Watkins has no prior history of violence and has tremendous respect for law enforcement and the Constitution of the United States. Indeed, although misguided, she believed she was supporting the Constitution and her government by providing security services at the rally organized by Mr. Trump and the republican lawmakers who supported his goals.

[snip]

On January 5 and 6, Ms. Watkins was present not as an insurrectionist, but to provide security to the speakers at the rally, to provide escort for the legislators and others to march to the Capitol as directed by the then President, and to safely escort protestors away from the Capitol to their vehicles and cars at the conclusion of the protest. She was given a VIP pass to the rally. She met with Secret Service agents. She was within 50 feet of the stage during the rally to provide security for the speakers. At the time the Capitol was breached, she was still at the sight of the initial rally where she had provided security. The government concedes that her arrival at the Capitol was a full 40 minutes after the Capitol had been breached. [my emphasis]

I believe this is the first description of the Oath Keepers’ role as “security” as these events in any of the legal filings in the case. But it doesn’t seem to help any of the co-conspirators.

Jessica Watkins was invited to an extremist revival event and given a VIP badge. She did so in the guise of providing security. But she admits she was almost 50 feet away from the stage, in no way the right location to be providing security (moreover, I think this claim is somewhat inconsistent with that the reported analyses shows, because members that would become the Stack left early, perhaps in response to Caldwell’s text).

Her brief further describes that she and her kitted-out militia were to provide “escort” to marchers to the Capitol, and she appears to know the intent was to march to the Capitol. One way or another, that still means her stated purpose — the reason she was wearing a VIP pass provided by official organizers (including Ali Alexander and Alex Jones) — was to ensure that those marching on the Capitol were accompanied by a militia that had plans to take up arms if things went badly.

I’m really grateful to Watkins’ attorney for providing the FBI reason to go ask the Secret Service and event organizers about this plan for an armed escort to the Capitol. This may accelerate the process of incorporating at least Roger Stone and Jones into these conspiracy indictments.

But it simply doesn’t help the cause of claiming that the Oath Keepers weren’t part of an organized conspiracy to interrupt the legal vote count. Does that mean that Jessica Watkins should be detained because people incited by the Proud Boys demolished the Capitol door? No. Does it mean she poses a threat because the organization she help[ed] lead started planning even before the election to have people trained to take action? Yes.

In November, Watkins wanted to make sure that Trump himself wanted her militia to take action. Her lawyer claims that Watkins was awaiting the invocation of the Insurrection Act. But even without that invocation, according to this filing, she envisioned serving as the military guard for a march of people from the White House to the Capitol seeking to overturn the election results.

And thanks to this defense filing, prosecutors can start talking about this earlier part of the conspiracy now.

Update: Peterson has submitted a clarification that has made the comments about the Secret Service even more damning. She didn’t meet the Secret Service. She spoke with them as she was coming through security for the VIP pen, from which she fancies she was “providing security.” And they told her to leave her tactical gear outside the pen.

Jessica Watkins, through counsel, respectfully submits this clarification to her motion for release pending the outcome of her case. Counsel apologizes for being less than clear on a couple of points raised in the original motion – something that unfortunately became obvious by media inquiries. Counsel in no way meant to imply that Ms. Watkins met with the Secret Service. A better verb would have been “encountered.” Ms. Watkins spoke with Secret Service members early in the day when she was coming through the check in point for the VIP area. The point counsel was attempting to make was that she encountered law enforcement, including Secret Service officer on her way to providing security for the rally. She was given directives about things she could and could not do, including directions to leave all tactical gear outside of the VIP area, and she abided by all of those directives. Ms. Watkins does not suggest that she has any direct knowledge that her role as security was sanctioned by anyone other than people involved in organizing the rally. She certainly did not mean to suggest that she was hired by the U.S. Secret Service to perform security. Counsel again apologizes for any confusion created by the inartful language used in the motion.

Effectively, then, hours before she entered the Capitol, which was full of protected people, including the Speaker of the House, President Pro Tempore, Vice President-Elect, and the Vice President that Donald Trump had just targeted, Watkins was told not to bring her tactical gear close to another set of protected people. And once she left the VIP pen where she was “providing security,” she put that tactical gear back on.

That only serves to emphasize the degree to which she was targeting Congress.

Dominic Pezzola Suspects the FBI’s Cooperating Witness Is the Guy Who Recruited Him into the Proud Boys

A number of people are pointing to this motion to modify bond by Proud Boy Dominic Pezzola, the guy who helped kick off an insurrection by breaking the window of the Capitol with a stolen police shield, reporting either that Pezzola is bidding to plead out or that that the Proud Boys are turning on themselves.

Both may be true.

But buried within the filing is a far more inflammatory allegation. Pezzola, the guy who kicked off the entire assault on the Capitol on January 6 in coordination with other Proud Boys, is suggesting that someone who came to serve as an FBI cooperating witness less than a week after an attack that purportedly took the FBI entirely by surprise, was actually the guy who recruited him into the Proud Boys and set him up with a thumb drive loaded up — unbeknownst to him, he maintains — with the Anarchist’s Handbook, including its bomb-making plans.

Pezzola makes the allegation by rebutting the claim he is dangerous, the basis by which Magistrate Robin Meriweather. came to deny him bail.

As Pezzola notes, Meriweather denied him bail not because of a presumption of detention or a concern he would flee. It was because he posed a danger to the public. Meriweather framed that presumed danger as arising from a thumb drive loaded with the Anarchist’s Handbook found at his home and the testimony of a witness.

In determining that Pezzola’s release presented “danger” to the community the Court cited 2 factors from the prosecution’s proffer: (1) the claim that Pezzola participated in a group conversation when others expressed an intention to return to DC with weapons to commit acts of violence; (2) recovery of a thumb drive with plans for making, bombs, poisons, etc.

Per Pezzola’s arrest affidavit, the witness was someone whom the FBI interviewed at least twice before obtaining an arrest warrant against Pezzola on January 13, just a week after the insurrection. The description of witnesses in the total universe of January 6 affidavits are totally inconsistent (in part because so many different FBI Agents wrote them), meaning we can’t conclude anything by the description an agent uses. Nevertheless, this one was always among the only ones that seemed to be an insider. The witness is someone who described Pezzola as “Spaz” right away (though elsewhere he is called Spazzo), described Pezzola as bragging about breaking into the Capitol, and he described the group — the Proud Boys — as capable of killing Nancy Pelosi or Mike Pence, and planning more actions.

The FBI has spoken to an individual your affiant will refer to as “W-1” for purposes of this affidavit. W-1 stated that W-1 was in Washington, D.C., during the protests that occurred on January 6, 2021.

W-1 stated that after the events at the Capitol as described above, he or she spoke to an individual he or she knows as “Spaz,” along with other individuals. W-1 stated that during that conversation, “Spaz” bragged about breaking the windows to the Capitol and entering the building. In a subsequent interview W-1 clarified that “Spaz” said that he used a Capitol Police shield to break the window. W-1 said that “Spaz” can be seen on the cover of many newspapers and recognizes him from those photographs. W-1 stated that other members of the group talked about things they had done during the day, and they said that anyone they got their hands on they would have killed, including Nancy Pelosi. W-1 further stated that members of this group, which included “Spaz,” said that they would have killed [Vice President] Mike Pence if given the chance.

I had thought this witness would be one of numerous Proud Boy hangers on who was hanging around in DC after the attack, but as we’ll see, Pezzola believes it’s the guy he commuted to insurrection with.

The witness first told the FBI that the Proud Boys were preparing an event on January 20th (which is consistent with other reports).

According to W-1, the group said it would be returning on the “20th,” which your affiant takes to mean the Presidential Inauguration scheduled for January 20, 2021, and that they plan to kill every single “m-fer” they can.1 W-1 stated the men said they all had firearms or access to firearms.

Then, in a later interview (again, remember that this is before January 13), the witness said maybe the next event wasn’t inauguration, but soon after. Whenever it was, it’d involve guns.

In a later interview, W-1 stated that the group had no definitive date for a return to Washington, D.C, but W-1 re-iterated that the others agreed there would be guns and that they would be back soon and they would bring guns.

The witness also misidentified Doug Jensen, the QAnon adherent who chased officer Goodman up the Capitol stairs, as someone else, presumably a member of the Proud Boys, only to clarify later that someone else was the individual in question.

In W-1’s initial interview with law enforcement, W-1 initially incorrectly the individual in the black knit hat in the foreground of this photograph as someone I will refer to as “Individual A.” W-1 later clarified that the person in the knit hat is not in fact Individual A and identified a different person in a separate photograph as Individual A.

Thus far, this witness sounds like he’s telling the FBI what he expects they most want to hear, something you often hear from informants trying to maximize their own value. By misidentifying Jensen, he may have falsely suggested the Proud Boys chose where to go in the Capitol. And by promising there would be more events, featuring violence (again, which is consistent with what public chatter was at the time), he heightened the urgency of case against the Proud Boys.

As Pezzola describes in his motion for bail, he suspects the person who said the Proud Boys had ongoing plans is a guy he drove home to New York with from DC.

Pezzola maintains no recollection of the referenced conversation but suspects if the conversation did occur in his presence it could have only occurred in the car on the return trip from Washington when Pezzola was asleep in the car. Upon information and belief, the CW is not detained. Rather he has reached an agreement where he is making allegations against others in order to avoid his detention for what is actually his greater involvement in the underlying events.

That would explain why William Pepe, also from NY, was named Pezzola’s co-conspirator: presumably both were in the same car speaking to the same guy, which is how the government had confidence that Pepe’s actions were coordinated with Pezzola’s and not, for example, the two other people charged with kicking off the attack on the Capitol, Robert Gieswein and Ryan Samsel.

As Pezzola describes, “it is alleged” that he’s just a recent recruit to the Proud Boys (something I don’t necessarily buy, but it seems to reflect Pezzola parroting back what he’s seen in discovery so far).

Pezzola’s alleged contact with the “Proud Boys” was minimal and short lived. It is alleged he had no contact prior to late November 2020. Upon information and belief, the prosecution alleges his first contacts occurred around that time. They principally amounted to meeting for drinks in a bar. Prior to January 6, 2020, there is no allegation that Pezzola took any action with the “Proud Boys” that was in anyway criminal or violent. His only event prior to January 6, 2021, was that he attended a MAGA rally in support of Donald Trump in December 2020. There is no allegation he was involved in any criminal or violent activity there.

He claims that the cooperating witness is actually far more involved in the Proud Boys.

Addressing these in turn: There is a claim as the prosecution pointed out that a “cooperating witness” claimed that Pezzola was present in a group when someone professed an intention to return on January 20, 2021, Inauguration day to instigate more violence. However, there is no claim Pezzola made those statements nor that he expressed a similar intent1 nor any intention to participate in any acts of violence, let alone murder. Although the defense cannot be certain it is believed the “cooperating witness” (CW) who has made these claims is actually someone who was a much more active participant in the “Proud Boys” than Pezzola, having been with the organization for a much longer time than Pezzola’s alleged association and much more active.

And Pezzola claims that the thumb drive showing possession of bomb making instructions was actually given to him by the guy he suspects of being the cooperating witness.

What was unknown at the time of the prior hearing is that the thumb drive at issue was given to Pezzola, probably by the Prosecution’s CW5 when that person was making efforts to introduce Pezzola into the “Proud Boys.”

Finally, Pezzola further alleges that the guy he suspects of being the cooperating witness confessed to spraying cops with pepper spray, an assault that has not been charged (only Giswein and Samsel were charged with outright assaults on cops).

Although it is impossible to know with certainty at this point, if the defense supposition about the CW is correct, that person admitted to spraying law enforcement with a chemical agent, likely “OC or Pepper” spray during the January 6 event.

It is true that Pezzola nods to making a plea deal in this filing.

Although the Court can play no role in disposition negotiations, via counsel Pezzola has indicated his desire to begin disposition negotiations and acceptance of responsibility for his actions. He seeks to make amends.

But there’s little chance DOJ can offer him a deal that will help him rebuild his life. Even in this filing, he admits he was attempting to stop the vote count, the goal of every overriding conspiracy charge thus far, which would be a key part of any seditious conspiracy case. He doesn’t deny he broke into the Capitol; he instead disingenuously downplays the import of being the first to do so, noting that numerous doors and windows were breached over the course of the day. His claim he has never used his Marine training since his service is inconsistent with the way he walked through the Capitol with much greater operational awareness than many of the other rioters. Plus, even in his first bail hearing, Pezzola insisted he was not a leader of the attack, which — if he was a recent recruit, makes total sense (and is consistent with Felicia Konold, someone else who played a key role, but who was just a recruit-in-progress). So he wouldn’t necessarily have that much information on anyone except those who gave him directions and the guy in the car, not necessarily enough to trade as the guy who kicked off the insurrection, even if he was acting on orders.

He’s likely fucked one way or another, not least because he’d be far less useful as a cooperator if everyone knew he had a plea deal.

But Pezzola’s allegation is troubling for several more reasons.

As noted, the FBI interviewed this cooperating witness at least twice before January 13, suggesting at the very least that the FBI reached out to him right away (or vice versa), rather than collecting more information on the person’s own role. And in spite of two variations in his story — misidentifying Jensen and equivocating about when the next operations were planned — his testimony was deemed credible enough to implicate someone he may have recruited and provided other the other damning evidence on.

The FBI knew that Enrique Tarrio and the rest of the Proud Boys were coming to DC for the January 6 events, which is how they were prepared to arrest him on entry in DC. They knew that during the Proud Boys’ previous visit, the group had targeted two Black churches. DOJ had investigated threats four members of the Proud Boys had made against a sitting judge in 2019.

And yet, not only didn’t FBI prevent the January 6 attack kicked off by the Proud Boys, they didn’t even issue an intelligence warning about possible violence.

It’s possible this witness genuinely did just reach out to the FBI and try to pre-empt any investigation into himself. It’s possible that as the FBI has done more review (including of video outside the Capitol, where a pepper spray attack on cops likely would have occurred), they’ve come to grow more skeptical of this witness.

But it’s also possible that the FBI has ties with witnesses — possibly this guy, and very likely Rudy Giuliani interlocutor James Sullivan, who said he was in contact with the FBI — who have more information on those who set up this insurrection, rather than just busting down the window. Particularly given the unsurprising news that investigators are scrutinizing the role that Roger Stone and Alex Jones might have played (Rudy is not mentioned, but not excluded either), it seems critical that the FBI not adhere to its counterproductive use of informants targeting a group (no matter how reprehensible) rather than action.

The FBI has a lot to answer for in its utterly inconceivable failure to offer warnings about this event. If their informant practices blinded them — or if they’re making stupid choices now out of desperation to mitigate that initial failure — it will do little to mitigate the threat of the Proud Boys.

Productive Ways to Hold Trump Accountable

On Friday, Jonathan Rauch published a god-awful argument for pardoning Trump. Today, Quinta Jurecic published a much better argument that a Truth Commission would be the ideal way to hold Trump accountable, but because that probably won’t work, we need to pursue other alternatives, including prosecution.

I’ve already laid out one reason why I think we need to prosecute Trump for his role in the insurrection: because if we don’t, it’ll hamper the ability to hold dangerous people accountable. Another reason is that so many defendants are excusing their actions because the then-President ordered them to storm the Capitol (indeed, that’s one reason, according to a new WaPo report, why DOJ might not charge some of the insurrectionists), the government must make it clear that order was illegal.

Still, I think there are solutions to the problem that both Rauch and Jurecic want to resolve: how to find accountability without derailing President Biden’s Administration.

Jurecic acknowledges that Republican resistance to accountability measures will exacerbate current political divisions.

[A] post-Trump investigation pursued along partisan lines could be doomed from the start. This is the irony: The exact conditions that led to and sustained the Trump era—white grievance, a polluted media ecosystem, and political polarization—are the same conditions that will likely prevent a truth commission from succeeding.

[snip]

In the short run, any of these measures could risk making the country’s social and political divisions worse.

Rauch argues that prosecutions will derail the Biden Administration.

If we want Biden’s presidency to succeed, accountability to be restored and democracy to be strengthened, then a pardon would likely do more good than harm.

Consider, first, Biden’s presidency.

Biden has made clear in every way he can that he does not want or intend to be President Not Trump. He has his own agenda and has been impressively disciplined about not being defined by opposition to Trump. He knows Trump will try to monopolize the news and public discourse for the next four years, and he needs Trump instead to lose the oxygen of constant public attention.

Legal proceedings against Trump, or even the shadow of legal proceedings, would only keep Trump in the headlines.

Rauch also argues (fancifully, for precisely the reasons Jurecic gives that a Truth Commission would be undermined by polarization) that a non-criminal counterintelligence investigation will succeed in a way criminal investigations won’t.

It is important, then, that Trump’s presidency be subjected to a full-scale, post hoc counterintelligence scrub. There should be a public element, modeled on the 9/11 commission, and also a nonpublic, classified element. Both elements could be complicated and hindered by the criminal investigation of Trump. The criminal and counterterrorism investigations would need to be continually deconflicted; Congress would be asked to back away from inquiries and witnesses that step on prosecutors’ toes; Trump himself could plead the Fifth Amendment—an avenue not open to him were he to accept a pardon.

Ignoring for the moment the necessity of including Trump in an investigation into January 6, I agree that, to the extent possible, there needs to be some kind of accounting of what happened during the Trump Administration without turning it into partisan warfare.

Here are some ways to contribute to doing that.

Drain the swamp

Investigations into Trump for things that either are already (Russia or Ukraine) or can be (the election) turned into a tribal issue will absolutely exacerbate political division.

But there are some topics where former Trump supporters can quickly be shown how he hurt them.

For example, an inquiry into Trump’s trade war, especially into the harm done to farmers, will provide a way to show that Trump really devastated a lot of the rural voters who, for tribal reasons, nevertheless support him.

Or Trump’s grifting. In the wake of the Steve Bannon pardon, a number of Trump supporters were furious that Bannon was pardoned for cheating them, even while rioters or other more favored pardon candidates were not. Bannon’s not the only Trump grifter whose corruption demonstrably hurt Trump voters. There’s Brad Parscale’s grifting. There’s Jared Kushner’s favoritism in COVID contracting, which made the country less safe. There’s PPP abuse by big corporations at the expense of small businesses. None of this has to be explicitly about Trump; it can instead be an effort to crack down on corruption generally which by its very nature will affect Trump’s flunkies.

Have Trump dead-enders approve charges

With the exception of some egregious US Attorneys, Biden has asked the remaining US Attorneys to stay on for the moment. That defers any political blowback in the case of John Durham (who in addition to being CT US Attorney is also investigating the Russian investigation) and David Weiss (who is investigating Hunter Biden).

But it also allows people who are nominally Trump appointees to preside over at least the charging of existing investigations targeting Trump or his flunkies. The one place this is known to be true is in Southern District of New York (where Rudy is being investigated). It might be true in DC US Attorney’s office (though Billy Barr shut a lot of investigations, including into Roger Stone and Erik Prince, down). There’s Texas, where Ken Paxton is under investigation.There were hints of investigations into Jared in Eastern District of New York and, possibly, New Jersey.

If Trump US Attorneys aren’t replaced before they charge Trump or his allies, then the act of prosecution will be one approved by a Trump appointee.

Give Republicans what they think they want

Because they’re gullible, Republicans believe that the record of the Russian investigation shows corruption. What is in fact the case is that a cherry-picked and selectively-redacted set of records from the Russian investigation can be gaslit to claim corruption.

But since they’ve been clambering for Trump to declassify it all (even while both John Ratcliffe and Andrew McCabe have suggested that might not show what Republicans expect), it gives Biden’s Administration a way to declassify more. For example, there’s at least one Flynn-Kislyak transcript (from December 22, 2016) that Trump’s Administration chose not to release, one with closer Trump involvement then the others. There are materials on Alex Jones’ interactions with Guccifer 2.0. There are Peter Strzok notes showing him exhibiting no ill-will to Mike Flynn. There are records regarding Paul Manafort’s interactions with Konstantin Kilimnik on April 2016. That’s just the tip of an iceberg of very damning Russian-related records that Trump chose not to release, but which GOP demands for more can be used to justify.

Fully empower Inspectors General

One particularly absurd part of Rauch’s piece is his claim that we know all of Trump’s criminal exposure.

If he committed crimes that we don’t already know about, they are probably not of a new kind or magnitude.

As for what we do know about, it seems clear that he committed criminal obstruction of justice, for example by ordering his White House counsel to falsify federal records. But his obstruction was a process crime, already aired, of limited concern to the public and hard to get a conviction on as a stand-alone charge. There might be more to the Ukraine scandal than we know, but that matter, too, has been aired extensively, may not have been a legal violation and was appropriately (if disappointingly) handled by impeachment. Trump might have committed some form of sedition when he summoned his supporters to the streets to overturn the election, but he would have a colorable First Amendment defense, and sedition is a complicated and controversial charge that would open a legal can of worms. The real problem with Trump is not that we do not know his misdeeds but that we know so much about them, and yet he remained in office for a full term.

One piece of evidence Rauch is mistaken is his certainty that Trump’s only exposure in the Russian investigation is regarding obstruction, when (just as one example) there’s an ongoing investigation into an Assange pardon that appears to be closer to a quid pro quo; or the closed investigation into a potential bribe from Egypt. Democrats were denied a slew of documents pertaining to the Ukraine scandal, especially from the State Department. Democrats were similarly denied records on Trump’s abuse of clearance and non-official records.

One way to deal with the outstanding questions from the Trump Administration is simply to fully staff and empower the Inspectors General who have been undermined for four years. If, for example, State’s IG were to refer charges against Mike Pompeo or DOD’s IG were to refer charges pertaining to Kash Patel’s tenure, it wouldn’t be Democrats targeting them for investigation, it would be independent Inspectors General.

DOJ must be a key part of this. DOJ’s IG has already said it is investigating BJ Pak’s forced resignation. Democrats should insist this is expanded to review all of Barr’s politicized firings of US Attorneys.

As part of an effort to make sure Inspectors General do the work they should have done in real time, Biden should support the end of the OPR/IG split in DOJ, which means that the decisions of lawyers at DOJ (including those pertaining to the Ukraine scandal) are only reviewed by inspectors directly reporting to the Attorney General.

Respect FOIA

Joe Biden might not want to focus on Trump. But the press will continue to do so.

And if Biden orders agencies to treat FOIA like it is supposed to be treated, rather than forcing the press to sue if they want anything particularly interest, the press will do a lot of the accountability that courts otherwise might (and might provide reason for prosecutions). The press already has FOIAs in that have been undermined by improper exemption claims. For example, Jason Leopold has an existing FOIA into Bill Barr’s interference into the Roger Stone and Mike Flynn prosecutions. American Oversight has a FOIA into why Paul Manafort was sprung from jail when more vulnerable prisoners were not. FOIA into Trump’s separation policies have been key at reuniting families.

If such FOIAs obtained more visibility than they currently do, it would provide the visibility into some of the issues that people would love criminal investigations into.

One of the biggest scandals of the Trump Administration is how he undermined normal institutions of good governance, especially Inspectors General. If those institutions are restored and empowered, it will likely do a surprising amount of the accountability work that is so badly needed.

Some Details of Mueller’s GRU Indictment You Probably Missed

When the Mueller team wrote the GRU indictment, they were hiding that Roger Stone might one day be included in it.

Last week,  DOJ unsealed language making it clear that, when Mueller closed up shop in March 2019, they were still investigating whether Roger Stone was part of a conspiracy with Russia’s GRU to hack-and-leak documents stolen from the Democrats in 2016.

The Office determined that it could not pursue a Section 1030 conspiracy charge against Stone for some of the same legal reasons. The most fundamental hurdles, though, are factual ones.1279 As explained in Volume I, Section III.D.1, supra, Corsi’s accounts of his interactions with Stone on October 7, 2016 are not fully consistent or corroborated. Even if they were, neither Corsi’s testimony nor other evidence currently available to the Office is sufficient to prove beyond a reasonable doubt that Stone knew or believed that the computer intrusions were ongoing at the time he ostensibly encouraged or coordinated the publication of the Podesta emails. Stone’s actions would thus be consistent with (among other things) a belief that he was aiding in the dissemination of the fruits of an already completed hacking operation perpetrated by a third party, which would be a level of knowledge insufficient to establish conspiracy liability. See State v. Phillips, 82 S.E.2d 762, 766 (N.C. 1954) (“In the very nature of things, persons cannot retroactively conspire to commit a previously consummated crime.”) (quoted in Model Penal Code and Commentaries § 5.03, at 442 (1985)).

1279 Some of the factual uncertainties are the subject of ongoing investigations that have been referred by this Office to the D.C. U.S. Attorney’s Office.

That means, eight months after they charged a bunch of GRU officers for the hack-and-leak, DOJ still hadn’t decided whether Stone had criminally participated in that very same conspiracy.

That raises questions about why they obtained the indictment before deciding whether to include Stone in it.

In his book, Andrew Weissmann provides an explanation for the timing of it.

A problem arose, however, when it came to the timing of this indictment. Having secured the Intelligence Community’s and Justice Department’s go-ahead, Jeannie aimed to have the indictment completed by July 2018. However, Team M’s first case against Manafort was scheduled to go to trial in Virginia in mid-July and, with Manafort showing little sign of wanting to plead, much less cooperate, with our office, we had few doubts that the trial would go forward. If we brought Team R’s indictment just before the trial, the judge in the Manafort case would go bonkers, justifiably concerned that such an indictment from the Special Counsel’s Office could generate adverse pretrial publicity, even if it didn’t relate directly to the Manafort charges.

But we couldn’t afford to wait to bring the hacking indictment until after both of Manafort’s trials concluded—the trial in Virginia was slated to start in July and the trial in Washington in early September. By then, we would be running up on the midterms, and we would not announce any new charges that close to the election (consistent with Department policy). But waiting until mid-November would be intolerable to Mueller. I told Jeannie I thought we could safely defend ourselves from any objections from the Virginia judge if she brought her case at least two weeks before the start of our July trial—that, I hoped, would give us a reasonable buffer.

Jeannie said she could manage that, then quickly noted that the new timetable created yet another problem: Two weeks before our trial, the president was scheduled to be in Helsinki, where he would be meeting privately with Vladimir Putin. Our indictment would require alerting the State Department, given their diplomatic concerns in preparing for and running a summit, as the indictment would accuse the Russians explicitly of election interference. That was standard operating procedure, but there was also the real perception issue that the indictment could look like a commentary on Trump’s decision to meet alone with Putin, which we did not intend.

We brought the dilemma to Mueller. He suggested we determine whether the White House would take issue with our proceeding just before the president’s trip—would it pose any diplomatic issues? The answer we got back was no: The administration would not object to the timing. I suspect the White House Counsel’s Office did not want to be perceived as dictating to us how or when to bring our indictment, or as hiding evidence of Russian election interference. In retrospect, a less generous interpretation of their blessing to move forward was that they knew dropping the indictment just before the trip would provide Trump and Putin an opportunity to jointly deny the attack on a global stage—that they were playing us, as Barr would later on. [my emphasis]

The indictment was ready in July. If it wasn’t announced then and if both Manafort trials went forward, then prohibitions on pre-election indictments would kick in, meaning the indictment wouldn’t be released in mid-November. That would have been “intolerable” for Mueller’s purposes. Weissmann doesn’t note that mid-November would also be after the election, meaning that the indictment might not get released before a hypothetical post-election Mueller firing and so might not get released at all. That may be what intolerable means.

Other possible factors on the GRU indictment timing

One thing that almost certainly played a factor in DOJ obtaining the indictment before they decided whether to include Stone in it, however, was Andrew Miller’s appeal.

Stone’s former aide Andrew Miller was interviewed for two hours at his home on May 9, 2018; this is almost certainly the 302 from the interview. Assuming that is his 302, Miller was asked about his relationship with Stone, Stone’s relationship with Trump, a bunch of Stone’s right wing nut-job friends, and someone whom Miller knew under a different name. Nothing in the unredacted passages of the interview reflects Miller’s role coordinating Stone’s schedule at the RNC, even though that was the focus of a follow-up subpoena after Miller testified to the grand jury. At the end of the interview, Miller agreed to appear voluntarily for a follow-up and grand jury testimony.

But then Stone learned about the interview.

We know that from the description of a pen register Mueller obtained on Stone a week later, described in affidavits. The PRTT showed that Miller had called Stone twice in the days after his interview with the FBI. On May 11, 2018, Miller lawyered up and his new lawyer, Alicia Dearn, told Mueller that Miller would no longer appear voluntarily (remember that Stone had offered to get a lawyer who would help Randy Credico refuse to testify).

This timeline lays out the early part of Miller’s subpoena challenge.

Miller emailed Stone over a hundred times over the month after his FBI interview. Miller did schedule a grand jury appearance, but then blew it off. Mueller started moving to hold Miller in contempt on June 11. In the days between then and a hearing on the subpoena, Miller and Stone exchanged five more emails. Then, in late June, Miller added another lawyer, Paul Kamenar (whom Stone would add to his team after his sentencing, presumably to allow Kamenar to access the evidence against him under the protective order). Kamenar made it clear he would appeal Miller’s subpoena.

In other words, in late June, the Mueller team learned that they would have to wait a while to get Miller before the grand jury (it ultimately took until the moment Mueller closed up shop on May 29, 2019). All the back and forth also would have made it clear how damaging Stone believed Miller’s testimony against him to be. When Mueller obtained a second warrant for Stone’s emails in early August 2018, the team would have gotten the content of those emails to learn precisely what Stone had to say to Miller about his testimony.

So Miller’s challenge to his subpoena meant that Mueller’s team would not obtain testimony that — it seems clear — they knew went to the heart of whether Stone was conspiring with Russia until well after the midterm election.

If my concerns that “Phil” had a role in the Guccifer 2.0 operation were correct, there’s a chance my big mouth had a role in the timing, too. Starting on June 28, I started considering revealing that I had gone to the FBI in what would eventually become this post. Contrary to the invented rants of people like Glenn Greenwald and Eli Lake, even a year into an investigation into what I had shared with the FBI, long after the time they would have been able to dismiss my concerns if they had no merit, prosecutors did not blow me off.

My interaction with Mueller’s press person in advance of going forward extended over five days. I emailed the press person on June 28 and said I wanted to run something by him. He blew it off for a day (there was a Manafort hearing), then on Friday I wrote again saying I run my decision by my lawyer, and was still planning on going forward. He still blew it off. The next day, I suggested he go check with a particular prosecutor; while the prosecutor hadn’t been in my interview, he was involved in setting it up. The press guy called back within an hour, far more interested in the discussion, and chatty about the fact that I live(d) in Michigan. He asked me to explain the threats I believed I had gotten after I went to the FBI. He asked me generally what I wanted to say. I noted that I believed if people guessed why I had gone to the FBI, they would guess the Shadow Brokers side of it, since TSB had dedicated its last words to a tribute to me, but probably not the Guccifer 2.0 side.

He told me “some people” needed to discuss it. Early on Monday July 1, we spoke again first thing in the morning. He asked me to describe more specifically what I would say. I described the select parts of my post that I suspected would be most sensitive, and read the text that I planned to publish. He said some people needed to discuss it and I would hear by the end of the day. At the end of the workday, he apologized for a further delay. After some more back-and-forth, he told me, around 10PM, that my post would not damage the investigation. The Special Counsel’s Office took no view on whether it was a stupid idea or not (it probably was, not least because one can never understand the moving parts in an investigation like this).

I posted the next day, part of a mostly-failed attempt to get Republicans to care about the non-partisan sides of this investigation. That was 11 days before the actual indictment.

I didn’t know then and frankly I still can’t rule out whether, over those two days, when “some people” discussed my plans, they reached a final conclusion that my concerns about an American who might have a role in the Guccifer 2.0 operation were either baseless or could not be proven.

But the aftermath shows they were still investigating Stone’s ties to Guccifer 2.0, whether not I was right about an American involved in it. Later in July, after the GRU indictment was released, prosecutors would obtain a warrant on several of Stone’s Google accounts in an attempt to determine whether he was the person looking up dcleaks and Guccifer 2.0 before the sites went live. A month and a half later, they would get two warrants, two minutes apart, one for Stone’s cell site location, and another for a Guccifer 2.0 email account, possibly an attempt to co-locate Stone and someone using the Guccifer account. That was the beginning of the period when Mueller’s team would start gagging warrant applications to hide the scope of the investigation from Stone.

For several months after releasing an indictment that made it appear as if all the answers about the hack-and-leak were answered, then, Mueller’s team took a number of steps that aimed to understand any tie between Stone and Guccifer 2.0. Even sixteen months after the GRU indictment, the Guccifer 2.0 persona ended up being an unstated focus of Stone’s trial — a trial about his lies to hide his true go-between with WikiLeaks — too.

Whatever the reason for the timing of the GRU indictment, given the confirmation that Mueller’s team was still investigating whether Stone had foreknowledge of ongoing GRU hacks that would merit including him in the hack-and-leak conspiracy when they closed up shop in March 2019, it’s worth revisiting the GRU indictment. At the time Mueller’s team wrote it, they knew at a minimum they were killing time to get Miller’s testimony, and subsequent steps they took show they they continued to pursue a prong of the investigation pertaining to Guccifer 2.0 that they planned to hide from Stone. So it’s worth seeing how they wrote the indictment to allow for the possibility of later including Stone in it, without telegraphing that that was a still open part of the investigation.

The Stone investigation parallels several of the counts charged in Mueller’s GRU indictment

The indictment charges 12 GRU officers for several intersecting conspiracies: Conspiracy against the US by hacking to interfere in the 2016 election (incorporating various CFAA charges and 18 USC §371), conspiracy to commit wire fraud for using false domain names (18 USC §3559(g)(1)), aggravated identity theft for stealing the credentials of victims (18 USC 1028A(a)(1)), conspiracy to launder money for using bitcoin to hide who was funding the hacking infrastructure (18 USC §1956(h)), and conspiracy against the US for tampering with election infrastructure (18 USC §371). In addition there’s an abetting charge (18 USC §2). Those charges are similar to, but do not exactly line up with, the other GRU indictment obtained in 2018, for hacking international doping agencies, which I’ll call the WADA indictment. The WADA indictment includes hacking, wire fraud, money laundering conspiracies, along with identity theft, as well. But it doesn’t include the abetting charge. And as described below, it deals with the leaking part of the operation differently.

DOJ used the abetting charge in Julian Assange’s indictments, a way to try to hold him accountable for the theft of documents by Chelsea Manning. Given the mention of Company 1, WikiLeaks, in the indictment, that may be why the abetting charge is there.

But the charges in the Mueller GRU indictment also parallel those for which the office was investigating Stone: he was investigated for CFAA charges from the start (that first affidavit focused exclusively on Guccifer 2.0), 371 was added in the next affidavit, aiding and abetting a conspiracy was added in the third affidavit, and wire fraud was added in March 2018 (the campaign finance charges that would be declined in the Mueller Report were added in November 2017). While the wire fraud investigation might be tied to Stone’s own disinformation on social media, the rest all stems from the charges eventually filed against the GRU in July 2018. Those same charges remained in Stone’s affidavits through 2018 (though did not appear in the early 2019 warrants used to search his houses and devices).

Mueller charged Unit 74455 officers for “assisting” in the DNC leak, without describing whom they assisted

Given the overlap on charges between those for which Mueller investigated Stone and those that appeared in the indictment, the treatment of the information operation in the GRU indictment — particularly when compared with the WADA indictment — is of particular interest. In both cases, the indictment described the InfoOps side to be conducted by Russian military intelligence GRU Unit 74455, as distinct from Unit 26165, which did most (but not all, in the case of the election operation) of the hacking.

In the WADA indictment, none of the personnel involved in the hack-and-leak at Unit 74455 are named or charged. Instead the indictment explains that, “these [Fancy Bears Hack Team social media accounts] were acquired and maintained by GRU Unit 74455.” Later, the indictment describes these accounts as being “managed, at least in part, by conspirators in GRU 74455,” notably allowing for the possibility that someone else may have been involved as well. The actions associated with that infrastructure are generally described in the passive voice: “were registered,” “were released” (several times). For other actions, the personas were the subject of the action: “”@fancybears and @fancybearHT Twitter accounts sent direct messages…”

The Mueller indictment, however, names three Unit 74455 officers: It charges Aleksandr Osadchuk and Anatoliy Kovalev in the hack of the election infrastructure (Kovalev got charged in the recent GRU indictment covering the Seoul Olympics and NotPetya, as well).

And it charges Osadchuk and the improbably named Aleksey Potemkin in the hack-and-leak conspiracy. The Mueller indictment describes that those two Unit 74455 officers set up the infrastructure for the leaking part of the operation. Significantly, it describes that these officers “assisted” in the release of the stolen documents.

Unit 74455 assisted in the release of stolen documents through the DCLeaks and Guccifer 2.0 personas, the promotion of those releases, and the publication of anti-Clinton content on social media accounts operated by the GRU.

[snip]

Infrastructure and social media accounts administered by POTEMKIN’s department were used, among other things, to assist in the release of stolen documents through the DCLeaks and Guccifer 2.0 personas.

The indictment doesn’t describe whom these officers assisted in releasing the documents.

Unlike the WADA indictment, the Mueller indictment also includes specific details proving that GRU did control the social media infrastructure. It describes how the conspirators used the same cryptocurrency account to register “dcleaks.com” as they used in the spear-phishing operation, and the same email used to register the server was also used in the spear-phishing effort.

The funds used to pay for the dcleaks.com domain originated from an account at an online cryptocurrency service that the Conspirators also used to fund the lease of a virtual private server registered with the operational email account [email protected] The dirbinsaabol email account was also used to register the john356gh URL-shortening account used by LUKASHEV to spearphish the Clinton Campaign chairman and other campaign-related individuals.

[snip]

For example, between on or about March 14, 2016 and April 28, 2016, the Conspirators used the same pool of bitcoin funds to purchase a virtual private network (“VPN”) account and to lease a server in Malaysia. In or around June 2016, the Conspirators used the Malaysian server to host the dcleaks.com website. On or about July 6, 2016, the Conspirators used the VPN to log into the @Guccifer_2 Twitter account. The Conspirators opened that VPN account from the same server that was also used to register malicious domains for the hacking of the DCCC and DNC networks.

(Note, this is some of the evidence collected via subpoenas to tech companies that the denialists ignore when they claim that CrowdStrike was the only entity to attribute the effort to Russia.)

The Mueller indictment describes how Potemkin controlled the computers used to launch the dcleaks Facebook account.

On or about June 8, 2016, and at approximately the same time that the dcleaks.com website was launched, the Conspirators created a DCLeaks Facebook page using a preexisting social media account under the fictitious name “Alice Donovan.” In addition to the DCLeaks Facebook page, the Conspirators used other social media accounts in the names of fictitious U.S. persons such as “Jason Scott” and “Richard Gingrey” to promote the DCLeaks website. The Conspirators accessed these accounts from computers managed by POTEMKIN and his co-conspirators.

Finally, there’s the most compelling evidence, that some conspirators logged into a Unit 74455-controlled server in Moscow hours before the initial Guccifer 2.0 post went up and searched for the phrases that would be used in the first post.

On or about June 15, 2016, the Conspirators logged into a Moscow-based server used and managed by Unit 74455 and, between 4:19 PM and 4:56 PM Moscow Standard Time, searched for certain words and phrases, including:

Search Term(s)

“some hundred sheets”

“some hundreds of sheets”

dcleaks

illuminati

широко известный перевод [widely known translation]

“worldwide known”

“think twice about”

“company’s competence”

Later that day, at 7:02 PM Moscow Standard Time, the online persona Guccifer 2.0 published its first post on a blog site created through WordPress. Titled “DNC’s servers hacked by a lone hacker,” the post used numerous English words and phrases that the Conspirators had searched for earlier that day (bolded below):

Worldwide known cyber security company [Company 1] announced that the Democratic National Committee (DNC) servers had been hacked by “sophisticated” hacker groups.

I’m very pleased the company appreciated my skills so highly))) [. . .]

Here are just a few docs from many thousands I extracted when hacking into DNC’s network. [. . .]

Some hundred sheets! This’s a serious case, isn’t it? [. . .] I guess [Company 1] customers should think twice about company’s competence.

F[***] the Illuminati and their conspiracies!!!!!!!!! F[***] [Company 1]!!!!!!!!! [emphasis original]

Remember: in the weeks after DOJ released this indictment, Mueller’s team took steps to try to obtain proof of whether Roger Stone was the person in Florida searching on Guccifer’s moniker on June 15, 2016, before the initial post was published. If Stone did learn about this effort in advance, it would suggest he learned about Guccifer 2.0 operation around the same time as someone was searching on these phrases in a GRU server located in Moscow. It would mean Stone learned about the upcoming Guccifer post in the same timeframe as these GRU officers were reviewing it.

It’s not really clear what was going on here. The assumption has always been that GRU officers were looking for translations into English from a post they drafted in Russian, even though the quotation marks suggests the Russian officers were searching on English phrases.

The one exception to that seems to confirm that. Those conducting these searches appear to have searched on a Russian phrase, a phrase they would have easily understood.

широко известный перевод

Moreover, it would take a shitty-ass translation application to come up with the stilted English used in the post. Plus, “illuminati,” at least, is an easily recognized cognate, even for someone (me!) whose Russian is surely worse than the English of any one of these Russian intelligence officers.

Still, proof of this  activity — obtained via undescribed means — clearly ties the Guccifer operation to the GRU. It’s just not clear what to make of it. And the possibility that there’s an American component to the Guccifer 2.0 operation — whether “Phil” or someone else — one that may have alerted Stone to what was going on, provides explanations other than straight up translation. Indeed, it may be that GRU officers were approving the content that someone else wrote, originally in English. Which might also explain why Stone may have known about it in advance.

Whatever else, the GRU indictment only claims that these GRU officers “assisted” this effort. It doesn’t claim they wrote this post.

The Stone-adjacent Guccifer 2.0 activity

One other detail of Mueller’s GRU indictment of interest pertains to which Stone-adjacent activity it chose to highlight.

Stone had first made his DMs with Guccifer 2.0 public himself, in March 2017. They were covered in his House Intelligence Committee testimony. But when Mueller included them in the GRU indictment, Stone first denied, and then sort of conceded the reference to them might be him.  His initial denial was an attempt to deny he had spoken with people in the campaign other than Trump himself, even though he had released the communications himself over a year earlier.

Remember — Mueller was still weighing whether Stone was criminally involved in this conspiracy when Stone issued the initial denial!

But that’s not the most interesting detail of the part of the indictment that lays out with whom Guccifer 2.0 shared stolen documents (even ignoring one or two tidbits I’m still working on).

Mueller’s GRU indictment included — along with the reference to the Roger Stone DMs they still hadn’t determined whether reflected part of a criminal conspiracy or not — the Lee Stranahan exchange with Guccifer 2.0 that ended in Stranahan, a Breitbart employee who would later move to Sputnik, obtaining early copies of a document purportedly about Black Lives Matter.

On or about August 22, 2016, the Conspirators, posing as Guccifer 2.0, sent a reporter stolen documents pertaining to the Black Lives Matter movement. The reporter responded by discussing when to release the documents and offering to write an article about their release.

These Stranahan exchanges are really worth attention, not just for the way they prove that Stone-adjacent people got early releases on request (which, lots of evidence suggests, also happened with Stone with respect to the Podesta files pertaining to Joule Holdings), but also for the way Guccifer 2.0 ignored Stranahan’s claim in early August 2016 to have convinced Stone that Guccifer 2.0 was not Russian.

Note what this indictment didn’t mention, though: Guccifer 2.0’s outreach to Alex Jones (about whom, unlike Stranahan, the FBI questioned Andrew Miller).

As I’ve pointed out, in the SSCI Report, there’s a long section on Jones that remains almost entirely redacted. Citing to five pages of a report the title of which is also redacted, the four paragraphs appear between the discussions of Guccifer 2.0’s outreach to then-InfoWars affiliate Roger Stone and Guccifer 2.0 and dcleaks’ communication with each other.

According to Thomas Rid’s book, Active Measures, both dcleaks and Guccifer 2.0 tried to reach out to Jones on October 18, 2016.

On October 18, for example, as the election campaign was white hot and during the daily onslaught of Podesta leaks, both GRU fronts attempted to reach out to Alex Jones, a then-prominent conspiracy theorist who ran a far-right media organization called Infowars. The fronts contacted two reporters at Infowars, offered exclusive material, and asked to be put in touch with the boss directly. One of the reporters was Mikael Thalen, who then covered computer security. First it was DCleaks that contacted Thalen. Then, the following day, Guccifer 2.0 contacted him in a similar fashion. Thalen, however, saw through the ruse and was determined not to “become a pawn” of the Russian disinformation operation; after all, he worked at Infowars. So Thalen waited until his boss was live on a show and distracted, then proceeded to impersonate Jones vis-à-vis the Russian intelligence fronts.23

“Hey, Alex here. What can I do for you?” the faux Alex Jones privately messaged to the faux Guccifer 2.0 on Twitter, later on October 18.

“hi,” the Guccifer 2.0 account responded, “how r u?”

“Good. Just in between breaks on the show,” said the Jones account. “did u see my last twit about taxes?”

Thalen, pretending to be Jones, said he didn’t, and kept responses short. The officers manning the Guccifer 2.0 account, meanwhile, displayed how bad they were at media outreach work, and consequently how much value Julian Assange added to their campaign. “do u remember story about manafort?” they asked Jones in butchered English, referring to Paul Manafort, Donald Trump’s former campaign manager. But Thalen no longer responded. “dems prepared to attack him earlier. I found out it from the docs. is it interesting for u?”24

Rid describes just one of two outreaches to Jones (through his IC sources, he may know of the report the SSCI relies on). But a key detail is that this outreach used as entrée some stolen documents from May 2016 showing that the Democrats were doing basic campaign research on Trump’s financials. It then purports to offer “Alex Jones” information on early Democratic attacks on Paul Manafort’s substantial Ukrainian graft, possibly part of the larger GRU effort to claim that Ukraine had planned an election year attack on Trump.

That is, unlike Stranahan’s request for advance documents, this discussion intended for “Alex Jones,” ties directly to Stone’s efforts to optimize the Podesta release. And it’s something that some entity prevented SSCI from publishing.

It’s also something Mueller’s team left out of an indictment aiming to lay out the hack-and-leak case before they might get fired, but in such a way as to hide the then-current state of the investigation from Roger Stone.

There were actually a number of Stone-adjacent associates in contact with GRU’s personas. And as recently as just a few months ago, the government wanted to hide the nature of those ties.

Rat-Fucker Rashomon: Trolling for Russia

With one exception, the SSCI Report does a tremendous job cataloging how people with a stake in the 2016 hack-and-leak operation undermined the Russian attribution of it. It includes an entire section on Russia’s efforts to undermine the Russian attribution, in which Konstantin Kilimnik plays a starring role and Manafort significantly follows. It describes WikiLeaks’ false attribution, mentioning the Seth Rich hoax explicitly. It includes several paragraphs describing the campaign’s claimed ignorance about the source of the stolen emails, framing it in terms of the October 7 DHS/ODNI assessment.

The Campaign tried to cast doubt on the October 7 joint DHS/ODNI assessment formally attributing the activity to Russia, and was indifferent to the significance of acquiring, promoting, or disseminating materials from a Russian intelligence services hack-and-leak campaign.1436

1436 (U) In contrast to the Campaign’s decision, other lawmakers refused to engage in such exploitation of the stolen material. For example, in an October 2016 interview, Senator Marco Rubio said that he would “not discuss any issue that has become public solely on the basis of WikiLeaks,” noting that “these leaks are an effort by-a foreign government to interfere with our electoral process, and I will not indulge it.” Jonathan Karl and Benjamin Siegel, “Exclusive: Rubio Won’t Talk About WikiLeaks, and Neither Should Donald Trump,” ABC News, October 19, 2016.

[snip]

(U) While the Campaign was using the WikiLeaks documents, Trump cast doubt on the assessment that Russian government hackers were responsible for the hack-and-leak campaign. At the second presidential debate on October 9, Trump asserted: “maybe there is no hacking.” 1704 In testimony to the Committee, Stephen Miller claimed that the Campaign did not know who was responsible for the hacks “one way or the other.”1705 But this uncertainty did not stop Trump or Campaign officials from minimizing Russian involvement at other times, suggesting that it was an “absurd claim” to say that the Kremlin was promoting the Trump Campaign1706; that “the DNC did the ‘hacking”‘ as a distraction1707; that the Democrats were “putting [it] out” that the Russians were responsible; and that it was “unlikely” that the Russians did it1708 or that nobody knew it was Russia, and it “could also be China” or “lots of other people.”1709 According to Gates, the Campaign was “not concerned with how or who hacked” the documents, but just sought to release emails as quickly as possible. 1710

(U) Among the theories espoused by Trump Campaign officials, Manafort expressed a belief that the Ukrainians were responsible, not the Russians. 1711 Gates said that this “parroted a narrative [Konstantin] Kilimnik often supported.” 1712 According to Gates, Kilimnik also asserted that the hack could have been done by “Russian operatives in Ukraine.” 1713 Gates was not aware of Manafort asking Kilimnik “to reach out to his Russian contacts” about the source of the leaked materials, and was not himself asked to contact Kilimnik about it. 1714 The Committee has determined that this theory espoused by Kilimnik and Manafort has no factual basis.1715 Gates and others also decided to promote the story that a DNC insider had been involved in the hacks.1116

SSCI’s invocation of the doubts Trump aired in the October 9, 2016 debate is of particular note, coming as it did just days after the John Podesta release. Trump’s comment was something that Mueller’s team asked numerous witnesses about.

Yet SSCI doesn’t include a focused discussion of all the ways Roger Stone — who appears to have met with Trump on October 8, 2016 — undermined the Russian attribution. As noted in this post of this series, one of the affidavits targeting Stone suggests Stone optimized the release of the John Podesta emails to overwhelm any attention to that October 7 attribution statement.

Perhaps the closest the SSCI Report comes to describing Stone’s efforts to troll for Russia is where — in entirely different sections of the report — the SSCI Report documents Stone’s flip flop on the Russian role in hacking the DNC. On page 224 of the SSCI Report, it describes how Stone told Gates (in July 2016) that the stolen files may have come from Russia.

In one call during that period, Stone also told Gates that the WikiLeaks information could be from the Russians. However, Gates did not recall Stone suggesting a connection between WikiLeaks and Russia. Gates also thought that Stone could have based his theory of Russian involvement on publicly available information. 1452

On pages 194-195, the SSCI Report describes how days later, Stone started claiming that Guccifer 2.0, whom he did not treat as Russian, had hacked the DNC.

On August 5, 2016, Stone penned an opinion piece asserting that Guccifer 2.0, not the Russians, had hacked the DNC, and repeating the false claims made by the GRU on the Guccifer 2.0 website and Twitter account. 1250 On August 12, the GRU released DCCC records, including the cell phone numbers and email addresses of almost all Democrats in the House of Representatives through the Guccifer 2.0 persona, 1251 and tweeted publicly at Stone: “thanks that u believe in the real #Guccifer2.”1252 When Twitter then suspended the Guccifer 2.0 account, WikiLeaks complained: “@Guccifer _ 2 has account completely censored by Twitter after publishing some files from Democratic campaign #DCCC.”1253 Stone also tweeted at WikiLeaks and the Guccifer 2.0 persona in response to the suspension, calling it “outrageous”1254 and referring to Guccifer 2.0 as a “HERO.”1255

Yet even though it includes this flip flop across two places thirty pages apart without noting it, the SSCI report doesn’t describe how, in the same period, Stone started pushing the Seth Rich hoax. Nor does it describe how long he continued to argue there was no proof that Guccifer 2.0 was Russian.

Perhaps the SSCI Report’s silence about Stone’s efforts to undermine the Russian attribution is a focus adopted from the Mueller Report. Like the SSCI Report, the Mueller Report describes WikiLeaks’ efforts to undermine the Russian attribution of the hack by pinning it on Seth Rich.

Beginning in the summer of 2016, Assange and WikiLeaks made a number of statements about Seth Rich, a former DNC staff member who was killed in July 2016. The statements about Rich implied falsely that he had been the source of the stolen DNC emails. On August 9, 2016, the @WikiLeaks Twitter account posted: “ANNOUNCE: WikiLeaks has decided to issue a US$20k reward for information leading to conviction for the murder of DNC staffer Seth Rich.” 180 Likewise, on August 25, 2016, Assange was asked in an interview, “Why are you so interested in Seth Rich’s killer?” and responded, “We’re very interested in anything that might be a threat to alleged Wikileaks sources.” The interviewer responded to Assange’s statement by commenting, “I know you don’t want to reveal your source, but it certainly sounds like you’re suggesting a man who leaked information to WikiLeaks was then murdered.” Assange replied, “If there’s someone who’s potentially connected to our publication, and that person has been murdered in suspicious circumstances, it doesn’t necessarily mean that the two are connected. But it is a very serious matter … that type of allegation is very serious, as it’s taken very seriously by us.”181

But neither describes Stone’s parallel and in many ways far more systematic efforts to sow the Rich hoax, efforts which extended well beyond the election and recruited involvement from the likes of Sean Hannity (who will be deposed by Joel Rich’s lawyers on this subject on October 30) and Alex Jones.

On this point as most others, the Stone prosecution unsurprisingly adopts the same general scope as the Mueller Report; like it, the indictment did not touch on Stone’s role in fostering the Seth Rich conspiracy. That said, prosecutors expended significant effort preventing Stone from using the prosecution to sow propaganda in the court room about Russian attribution (as Yevgeniy Prigozhin’s trolls succeeded in doing).

But the affidavits in the Stone investigation (as we’ve seen elsewhere) break from the pattern. They focus closely on Stone’s social media activity — activity which would ultimately get Stone gagged by Amy Berman Jackson, the judge presiding over his trial, and activity that would get fake accounts created for him starting during the election removed by Facebook. At least eight of the warrants obtained towards the end of the Stone investigation targeted Internet infrastructure used to support social media campaigns.

It’s unclear exactly what investigators were looking for, though. After all, using fake accounts, while a violation of social media terms of service, is not illegal by itself.

For some of these accounts, investigators were collecting forensic data in an effort to tie Stone’s known online activity to very damning Google searches — indicating knowledge of the Russian hack-and-leak while the hackers were still in DNC servers — they believed to be Stone. In addition, the warrant where the investigation started to incorporate evidence and testimony from Steven Bannon listed wire fraud among the crimes under investigation, which prosecutors sometimes charge if someone raises money for one purpose — say, purporting to fund a PAC supporting one cause — and use it for another purpose (this is precisely what got Bannon indicted by SDNY).

But some of investigators’ focus appears to pertain to the content Stone pushed, his efforts to undermine the Russian attribution, including his sustained claims that Guccifer 2.0 wasn’t Russian. After one of the guys who did social media for him provided details of the effort, investigators started incorporating Stone’s social media activity into affidavits.

Based on search warrant returns for STONE’s account [redacted], between on or about October 31, 2016 and November 3, 2016, [redacted] received receipts from Facebook for the purchase of a number of advertisements associated with the Target Account, including advertisements with the following excerpted titles (as set forth in the receipts):

  • “BREAKING: New #Wikileaks emails prove that Team … “
  • “Roger Stone talked about WikiLeaks, Donald Trump, … “

90. Additionally, on or about March 31, 2017, STONE received a Facebook receipt at his Hotmail account for advertisements associated with Target Account 1, with the following excerpted titles (as set forth in the receipt):

  • “Stone Rebuts Charge of Russian Collusion”
  • “I am not in touch with any Russians, don’t have … ,”
  • “The charge that I am working for Russian … ,”
  • “In fullest statement yet on DNC hacking … “
  • “ROGER STONE – NO consensus that Guccifer 2.0 is a … “

Mueller’s investigators might simply have been tracking the Podesta effort and the later cover-up (though, again, none of it showed up in a trial on the cover-up). But some of the later warrants that included gags, including the one that specifically said prosecutors were trying to keep Stone in the dark about the scope of their investigation, targeted social media, too.

Whatever the point of that investigative focus, Stone at least believed that his efforts to optimize the stolen files could make the difference in getting Trump elected. Moreover, he played a role at key moments in how others understood the provenance of the documents, possibly even in Trump public doubts in the second debate. Stone had more incentive than anyone to claim that Russia wasn’t behind the hack, his efforts to push that narrative were in many ways more sustained than other efforts, and the way in which he tried to rebrand Guccifer 2.0 as something other than a Russian persona was a key claim in his false HPSCI testimony. Indeed, Trump appears to have picked up some of the attacks on Russian attribution that his rat-fucker first pushed, which has since snowballed into a systematic effort to dismantle any part of the government with expertise in Russian operations and organized crime.

And yet the SSCI Report, completed in the wake of and incorporating the affidavits, which incorporated some of the Ukrainian based disinformation still being chased by Republicans, makes little mention of Stone’s campaign to undermine the Russian attribution, and how closely it tied to WikiLeaks’ own such campaign.


The movie Rashomon demonstrated that any given narrative tells just one version of events, but that by listening to all available narratives, you might identify gaps and biases that get you closer to the truth.

I’m hoping that principle works even for squalid stories like the investigation into Roger Stone’s cheating in the 2016 election. This series will examine the differences between four stories about Roger Stone’s actions in 2016:

As I noted in the introductory post (which lays out how I generally understand the story each tells), each story has real gaps in one or more of these areas:

My hope is that by identifying these gaps and unpacking what they might say about the choices made in crafting each of these stories, we can get a better understanding of what actually happened — both in 2016 and in the investigations. The gaps will serve as a framework for this series.