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On Visibility and [dis]Covering Kenneth Chesebro

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Yesterday, CNN reported that Kenneth Chesebro, identified as co-conspirator 5 in Trump’s DC indictment and charged in the Georgia one, in both indictments for actions limited to the fake electors scheme, trailed Alex Jones while he was present at the Capitol on January 6, apparently recording Jones’ actions and words for most of the time he’s at the Capitol.

CNN cites Ryan Goodman — who has steadfastly refused to look closely at much of the crime scene video evidence (much less credit the investigators who have meticulously catalogued it) — making a nonsense legal argument about the significance of Chesebro’s actions, one that clings to a cognitive distance between the white collar planning, to which he assigns Chesebro, and the blue collar execution of the attack).

Ryan Goodman, a law professor at New York University who previously served as the special counsel to the general counsel at the Department of Defense, told CNN that Chesebro’s presence on the Capitol grounds could be cited by prosecutors.

“Regardless of Chesebro’s potential criminal liability for being in the restricted areas of Capitol grounds, this evidence could be cited by prosecutors as further proof that Chesebro was not operating as a bona fide legal advisor but rather was an activist aligned in the cause to overturn the election,” Goodman said. “It undercuts defenses Chesebro might mount that he was functioning only in the role of providing legal advice for clients.”

The NYT version of the same story makes an equally nonsensical observation about what it means, claiming that this is the first evidence that “different tentacles of the efforts to keep Mr. Trump in power [] overlapped.”

Until now, there appeared to be different tentacles of the efforts to keep Mr. Trump in power that had not overlapped. But Mr. Chesebro hinted at those connections in an email exchange with John Eastman, another lawyer who was instrumental in the plan to pressure Mr. Pence with the fake elector scheme.

In late December 2020, the two lawyers discussed how to get a case before the Supreme Court. Mr. Chesebro told Mr. Eastman as they discussed filing a legal action that in terms of the highest court, the “odds of action before Jan. 6 will become more favorable if the justices start to fear that there will be ‘wild’ chaos on Jan. 6 unless they rule by then, either way.”

The pressure on state legislators brought to bear by Stop the Steal, ginned up at rallies headlined by Jones and Alexander, has always been a necessary component of the fake electors plan. The Georgians charged in the Trump side of the fake elector charges in the Georgia indictment, Robert Cheeley and Scott Hall, were also coordinating with the people pressuring Ruby Freeman. The political violence was not an afterthought, it was part of the plan.

Indeed, Thomas Joscelyn, a key author of the January 6 Report, noted that this overlap is in no way new and reminded that Jones and Owen Shroyer were in contact with the Proud Boys who are awaiting sentencing on their sedition conviction.

There is no firm dividing line between those orchestrating the political conspiracy to overturn the election and the extremists who led the attack on the Capitol.

He cited back to the passage of the report describing that Jones’ entourage was in direct contact, in real time, with the Proud Boys, even as they kicked off the riot.

Other, more prominent members of the Proud Boys appear to have been in contact with Jones and Shroyer about the events of January 6th and on that day. Records for Enrique Tarrio’s phone show that while the attack on the Capitol was ongoing, he texted with Jones three times and Shroyer five times.124 Ethan Nordean’s phone records reflect that he exchanged 23 text messages with Shroyer between January 4th and 5th, and that he had one call with him on each of those days.125 Records of Joseph Biggs’s communications show that he texted with Shroyer eight times on January 4th and called him at approximately 11:15 a.m. on January 6th, while Biggs and his fellow Proud Boys were marching at and around the Capitol.126

Those ties have remained close. Indeed, Jones and Shroyer — who were asked to lead Trump’s mob to the Capitol by someone in Trump’s immediate vicinity — have shared a lawyer, Norm Pattis, with former InfoWars employee and seditionist Joe Biggs for over a year; Pattis has also even taken over the defense of Zach Rehl.

But the limited visibility J6C had on that key node, the Jones entourage (largely because of their obstruction), ultimately prevented it from connecting all the dots and indeed the full extent of those dots remains obscure.

Even before you add Chesebro to the equation, in that entourage you had Jones who understood he was sent to lead the mob by Trump himself (J6C concludes it must have been conveyed through Caroline Wren, though for reasons I included in this post, that’s not entirely convincing). You had Shroyer, who shared that understanding, and who was coordinating with those launching the attack. And in addition to his frequent updates from Wren and coordination with Garrett Ziegler (now a central player in the Hunter Biden information operation led by Rudy Giuliani), Ali Alexander was also coordinating closely with Paul Gosar’s office — the guy who’d kick off the challenges. And all of them have exceptionally close ties to Roger Stone, including membership in the Friends of Stone list.

And, as CapitolHunters reminded in response to this coverage — and backed with a new researcher-compiled video of Jones’ movements that day — Jones played an absolutely central role in the success of the attack, first by bringing reinforcements to those leading the attack, and then, once he got there, by leading a huge chunk of those mobsters to the East side of the Capitol, where they’d serve a crucial role in a second, pincer attack on the building.

The convergence of first Jones and then key members of two militias on the East doors is the easiest place to see that the attack on the Capitol wasn’t random, but — at least in key movements — was fairly well executed. That convergence — and collection of evidence showing the import of Jones’ actions, for which people have already done time — has been an investigative focus from the start.

And Chesebro was there, capturing Jones’ actions.

Jones is a blowhorn-wielding asshole. But he commands almost the same kind of rabid loyalty as Trump does (Alexander estimated that a third of the attendees that day were Jones’ people). And via whatever means (the new Jones compilation video makes me wonder about potential uneven understanding of the events of the day, between Jones, Alexander, and Jones’ handlers) Jones played a central role in events of the day.

That entourage was a bunch of men checking in with at least Wren and possibly Ziegler, with Gosar’s office, and with the Proud Boys as they launched the attack on the Capitol. That entourage led a mob from the Ellipse, and then wittingly or not, deployed the mob where they would be the most effective, right there on the East steps before a second major breach would occur.

That’s the background one should bring to the images showing Chesebro, someone always associated with the plotting in the Willard, filming Jones as that entourage moved around the Capitol.

It’s not clear who sent him or why. NYT quotes a Jones lawyer — probably the same lawyer that Jones, Shroyer, Biggs, and Rehl share, Norm Pattis — disclaiming any knowledge of why Chesebro was shadowing Jones that day (though, given Jones’ paranoia and Shroyer’s pending sentencing, I’d find the denial more credible if Jones were squawking about being spied on by the Deep State).

It remains unclear why Mr. Chesebro was with Mr. Jones’s group outside the Capitol or how he came to be with them. A lawyer for Mr. Jones said that Mr. Jones was unaware that Mr. Chesebro had been following his entourage that day.

Plus, at one point, Chesebro seems to share something on his phone with a member of Jones’ security.

It is clear that Chesebro is not participating in the riot. Chesebro never indulges in the kind of fan worship of Jones as everyone else following him around does. Nor does he ever get distracted by the far more significant spectacle happening just yards away. He appears to be, at a minimum, monitoring Jones (though CapitolHunters pointed to some mannerisms that could be the kind of signaling as other things seen in the crime scene footage). And when Jones leaves, Chesebro follows. Chesebro continues to monitor — and film — as Jones seeds a conspiracy theory about the attack being launched by provocateurs on his way out (Michael Coudrey is a key Alexander associate, another member of the entourage).

We have seen that members of both the Proud Boys and Oath Keepers monitored the proceedings of the attack remotely, with Proud Boy leaders — including Tarrio and Bertino — chiming into the command and control from afar. It may be that’s what we’re seeing here.

After thirty months of hypervisibility, it’s easy to forget that there were actually pockets of the attack (inside offices without surveillance cameras and under the scaffolding are two of them) that could only be rendered visible by the cameras of others onsite, making their own recording. There are parts of Jones’ movement — which his own entourage recorded with a GoPro and at least one phone — that he subsequently edited.

The actions of Ken Chesebro suggest that someone wanted to make sure Jones’ movements at the Capitol would be visible, possibly to people monitoring the attack remotely, perhaps even in real time. Indeed, given that we’ve never seen this footage published on Parler, it suggests someone wanted a record of Jones’ real-time movement for private consumption.

The two indictments implicating Ken Chesebro have brought new visibility to him, and his actions. The discovery of Chesebro monitoring Jones’ activities during the attack have made aspects of the coordination behind this attack visible to TV lawyers for the first time. But amid all that newfound visibility, it’s worth remembering that some people knew to — and did — monitor all this in real time.

Update: I may have overstated when I claimed that Chesebro hadn’t cheered Jones. At the very beginning of this clip, Chesebro (in the far left of the frame) yells out, “Alex Jones” with the rest inaudible to me.

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“Poor Mr. Zebley:” Both Xitter’s Lawyers and Journalists Responding to Boilerplate Need to re-Read Mueller

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I’ve stopped trying to convince Russian denialists on Xitter that they’re willfully ignorant of facts. At this point, denialists are just trolls exploiting Xitter’s algorithm to create scandal.

I try to focus my time, instead, on conspiracy theorists platformed by prominent schools of journalism.

But when others try to correct denialists on Xitter, they almost always say the denialists haven’t read the Mueller Report closely enough.

So I found it wildly ironic that Chief Judge Beryl Howell, during a period in February when Elon Musk was letting denialists like Matty Dick Pics Taibbi invade the privacy of then-Twitter’s users so he could spew conspiracy theories, Howell scolded Twitter’s lawyer George Varghese that he hadn’t read the Mueller Report closely enough.

THE COURT: You need to read the Mueller report a little bit more carefully.

The transcript of the court hearing and much of the rest of the back-up to Xitter’s attempt to stall compliance of the warrant was unsealed yesterday.

Mind you, Howell was trying to convey to Twitter’s team that there is precedent for investigating Donald J. Trump without giving him advance warning of every investigative step.

MR. VARGHESE: Yes, Your Honor. Our —- by

THE COURT: You think that for 230 orders, 2800 subpoenas, and 500 search and seizure warrants the Mueller team gave advance notice to the former President of what they were about?

MR. VARGHESE: I don’t know that, Your Honor.

THE COURT: You do not know that.

The hearing made it pretty clear that Howell is convinced that Trump will stop at nothing to obstruct criminal investigations into himself.

Howell, who knows what went into the Mueller Report as well as anyone outside the investigative team, does know that.

In fact, when she told Varghese he should have read the Mueller Report more closely, she had just pointed to private comms described in the Mueller Report — the ones where Trump told Mike Flynn to stay strong — where Trump had not gotten advance notice, as prosecutors were demanding he not get advance notice about a warrant to Twitter.

THE COURT: Because the Mueller report talks about the hundreds of Stored Communications Act — let me quote.

Let’s see.

The Mueller report states that: As part of its investigation, they issued more than 2800 subpoenas under the auspices of the grand jury in the District of Columbia.

They executed nearly 500 search and seizure warrants, obtained more than 230 orders for communications records under 18 U.S.C. Section 2703(d); and then it goes on and on and on for all of the other things they did.

And some of those communications included the former President’s private and public messages to General Flynn, encouraging him to “Stay strong,” and conveying that the President still cared about him, before he began to cooperate with the government.

So what makes Twitter think that, before the government obtained and reviewed those Trump-Flynn communications, the government provided prior notice to the former President so that he can assert executive privilege?

MR. VARGHESE: My understanding, Your Honor, is that the Mueller investigators were in contact with the White House counsel’s office about executive privilege concerns.

THE COURT: You quoted the one part that said that, and that was for testimony, testimony, where it was not covert.

Side note: Xitter’s lawyers may not have been entirely wrong about consultations with the White House counsel, even for materials obtained covertly.

This exchange happened on February 7. Two days later there was a follow-up hearing, and WilmerHale counsel Aaron Zebley — someone who knows better than Beryl Howell what happened to the materials for which Howell approved legal process after it got handed over but before they ended up in the Report itself — filed an appearance in this challenge. He never spoke though; he showed up late, if at all, and at one point, after Twitter had presented their opening argument, Howell asked someone to check whether “poor Mr. Zebley” was standing outside a locked door waiting to get in.

THE COURT: Okay. Well, let me just —

Mr. Windom, do you want to think about that or do you want to respond?

Do you think Mr. Zebley is standing outside the locked door?

MR. HOLTZBLATT: I think there is a chance.

THE COURT: Could you check? Poor Mr. Zebley.

MR. WINDOM: Should I wait, Your Honor, or proceed?

THE COURT: Proceed. In my chambers we wait for no man.

Twitter was trying to make an argument that someone had to attend to potential Executive Privilege claims. Howell and the prosecutors nodded several times to a filter protocol addressing privilege issues, of which Twitter was ignorant. And yet Twitter was refusing to comply unless they had the opportunity to tell Donald Trump about the warrant in advance.

Beryl Howell, who was years into her second investigation of Donald Trump at this point, might be forgiven for impatience with lawyers who don’t understand how many Executive Privilege disputes she had presided over between those two investigations. They might be forgiven for their ignorance of all the resolutions of Trump’s current challenges to Executive Privilege in the January 6 investigation.

That said, Twitter’s lawyers aren’t the only ones who should have read the Mueller Report more closely. So are the journalists reporting on this.

One after another journalist (CNN, NYT, Politico, all involving journalists who covered the Mueller investigation) has mistaken DOJ’s request for data — attachment B to the warrant — as some kind of statement of what DOJ was most interested in receiving. Based on that, their stories focus on the fact that DOJ asked for or obtained DMs involving the former President.

But that attachment looks to be largely boilerplate. It is not much different from warrants obtained five years ago, in the Mueller investigation, such as this one, also served on Twitter, apparently targeting Trump’s rat-fucker Roger Stone in an investigation into whether he was serving as a foreign agent of Russia, a warrant that also came with a gag, one Twitter did not contest. One main — telling — difference, is that the Trump request included standard subscription information, which Mueller’s investigators appear to have already requested; one of the items on which Twitter held up compliance, in fact, was Trump’s gender, a sure testament to obstruction within the company.

While Twitter’s services have changed significantly in the interim years, both ask for the same kind of information: DMs, drafts, deleted content, favorited content.

And for good reason!!! These warrants may well have been targeting the same kind of behavior, the kind of organized troll campaigns that exploit Twitter’s algorithms, in which users use a variety of means to obscure their identity. There is a significant likelihood these warrants were targeting precisely the same group of far right online activity, the very same people.

One of the most important Twitter users leading up to January 6, Ali Alexander, is the protégé of Roger Stone and the effort to drive attendance at January 6, Stop the Steal, was a continuation of the effort Stone started in 2016, an effort that may well have been covered by that 2018 warrant or one of the others targeting Stone’s Twitter activity.

To be sure: There are DMs in Trump’s account, though it’s not entirely clear when they date to. Without reading any of the DMs, Twitter checked to see whether the volume of data in Trump’s account indicated the presence of DMs.

MR. VARGHESE: So, Your Honor, we went back — because this was an important issue for us to compare, whether or not there were potentially confidential communications in the account, and we were able to confirm that.

THE COURT: How?

MR. VARGHESE: So, Your Honor, there was a way that we compared the size of what a storage would be for DMs empty versus the size of storage if there were DMs in the account. And we were able to determine that there was some volume in that for this account. So there are confidential communications. We don’t know the context of it, we don’t know —

THE COURT: They are direct messages. What makes you think — do you think that everything that a President  says, which is generically a presidential communication, is subject to the presidential communications privilege?

MR. VARGHESE: No, Your Honor.

But Twitter’s focus on DMs arose from their frivolous basis for delaying response to the warrant — their claim that some of these DMs might be subject to a claim of Executive Privilege.

Moreover, having DMs in the account is not the same thing as a prosecutor confirming that they ultimately obtained DMs, or that any DMs were relevant to the investigation, or that DMs were one of the things they were most interested in.

I don’t doubt that’s likely! But what prosecutors asked for and what was in the larger account is not the same thing as what DOJ ultimately received and used.

And the DMs — most of them, anyway — are something that were available elsewhere. At least as represented in the dispute, NARA already has Trump’s DMs from the period (DOJ chose not to go to NARA, in part, because they wanted to avoid notice that NARA has provided to Trump along the way).

There were three more things that DOJ showed perhaps more interest in, requiring Twitter to go beyond their normal warrant response tools to comply.

The first has to do with emails to Twitter about the account, of which prosecutor Thomas Windom was most interested in emails from people on behalf of Trump.

But this information about, you know, what it is that we say that we’re most specifically interested in, I did not represent that we were most interested in communications betueen government officials and Twitter regarding the account.

We did point out that — much as Your Honor did just now — it seemed beyond comprehension that there weren’t communications regarding the account when it was suspended and terminated, but that doesn’t mean government officials at least cabined to that. It can mean campaign officials. It can be anybody acting on behalf of the user of the account, or the user of the account himself.

THE COURT: So any person regarding the account is broader than what you just said, though, Mr. Windom.

“Any person regarding the account” is quite broad. It could be all the complaints of all of the Trump supporters out in the world saying: What are you doing, Twitter?

So I take it, from what you just said, that you are interested only in =- rather than “any person,” a person who was the subscriber or user of the account or on behalf of that person regarding the account?

MR. WINDOM: Yes, ma’am. An agent thereof.

When Twitter cut Trump off in 2021, they cut off active plans for follow-up attacks. And these emails might indicate awareness of how Trump was using Twitter as a tool to foment insurrection.

Another item on which Windom focused in the following hearing was associated accounts — other accounts the identifiers used with Trump’s accounts also use. Twitter claims they don’t have that — at least not in their law enforcement portal — and so had to collect it manually. But DOJ did ask them to produce it. (Note, the fact that Xitter doesn’t store this is one reason why they’re so bad at tracking information operation campaigns, because visibility on these kind of associations are how you discover them.)

MR. HOLTZBLATT: Well, Your Honor, we don’t — the issue, Your Honor — there isn’t a category of “associated account information”; that’s not information that Twitter stores.

What we are doing right now is manually attempting to ascertain links between accounts. But the ascertainment of links between accounts on the basis of machine, cookie, IP address, email address, or other account or device identifier is not information that Twitter possesses, it would be information that Twitter needs to create. So that’s the reason why we had not previously produced it because it’s not a category of information that we actually possess.

[snip]

MR. WINDOM: It is, as explained more fully in the warrant — but for these purposes, it is a useful tool in identifying what other accounts are being used by the same user or by the same device that has access to the account is oftentimes in any number of cases, user attribution is important. And if there are other accounts that a user is using, that is very important to the government’s investigation.

[snip]

MR. HOLTZBLATT: That’s right. If the records — if the linkage between accounts, which is what we understand this category to be referring to, is not itself a piece of information that we keep, then it’s not a business record that we would ordinarily produce.

What I understand the government to be asking is for us to analyze our data, as opposed to produce existing data. And we are trying to work with the government in that respect, but that is the reason that it is not something that — that is a different category of information.

As Windom explained, this information is critical to any attribution, but it’s also important to learning the network of people who would Tweet on Trump’s behalf, and any overlap between his account and their own (as Roger Stone’s showed in 2016).

Then there’s something that remains only partially explained. For some reason — even Twitter could not figure out why — there were two preservations of Trump’s account in January 2021, before the preservation associated with this warrant. One was on January 9. The other covered January 11 and 12. And when asked, the government of course wanted the latter preservation too — and it is in the possession of Twitter, and so covered by the warrant.

MR. HOLTZBLATT: At 5 p.m. on February 7th, I think that was our day, we produced all data in this category that was in the standard production tools of Twitter.

We communicated with the government on February 8th that there were prior preservations of the subject account that are not within Twitter’s standard production tools and that would, therefore, require engineering to obtain information. And we asked the government whether it wished us to undertake that effort, and the government confirmed that it did.

And we have since then — when we produced on February 7, we indicated to the government in our production letter that there was potentially deleted data that might exist, which is what would be found in prior preservations, but that it would require additional engineering efforts.

At 2 a.m. last night, or this morning, Twitter produced additional information from those prior preservations that falls within category 2A. There are —

THE COURT: When you say “prior preservations” what are you talking about?

Prior litigation holds of some kind or that you  had a stash or a cache of preserved data sitting in different places? What are you talking about?

MR. HOLTZBLATT: I am referring — with respect to this particular account, I am referring to preservations from two specific dates. There is a preservation that was made that includes the subject account covering January 3rd to 9th, 2021. There is a second preservation of this that includes this account that covers January 11 to 12, 2021.

Those are collections of data that — they are not — it’s not coterminous with the categories that would exist in the active account right now and — and that’s data that does not exist within a production environment. So it’s not data that you can just click — we have a system to just click a button and produce, which is why we indicated that further engineering efforts might be necessary.

We asked the government if they wished us to undertake those efforts. We had an engineer working through the night, after the government asked us to, to undertake those efforts. At 2 a.m. in the morning we produced additional information that came from those preservation.

There are two categories of information that — actually, I’m sorry, three categories of information that we are still working to produce because of the engineering challenges associated.

One of those categories is the list of — I am not sure this is from 2A. But I think, for purposes of coherence, it would be helpful for me to describe it now because it connects to this preservation; that is,  followers — a list of followers for this account that were contained within the January 11 through 12th prior preservation. We have segregated that information. It is a complicated and large set of information. And we are unable to deliver it in the manner that we normally deliver information to law enforcement, which is to send a token.

We believe right now it would require physical media to put that information on and to hand it over to the government.

[snip]

MR. HOLTZBLATT: As I mentioned, Your Honor, there were two prior preservations, and then there is the current production tools. In two of the three of those sets, the January 3 through 9 and the current one, we have produced the tweets and related tweet information for the account.

In the January 11 to 12th prior preservation, the way that the tweet and tweet-related information is stored, it goes all the way back to 2006. We don’t have a warrant — that is contents of user communications. He don’t nave a warrant that would permit us to produce the entirety of that information. So what we have is a tool 7 that — what we refer to as a redaction (sic) tool or trimming tool. Because this is not a production environment, a human being has to go in and manually trim the information to isolate the date range. That, I think Your Honor can understand, is a laborious process, including for this particular account, given the time frame; and we need to isolate it, I think, over a three-month, four-month period, I’m sorry, Your Honor. So we are undertaking it.

Unsurprisingly, DOJ wanted to be able to compare the accounts as they existed on January 8 and January 12, 2021, because Trump’s attack was still ongoing and because people were beginning to delete data.

Trump’s DMs, if he used them or even just received them in this period, would be critically important. But Twitter was one of Trump’s most important tools in sowing an insurrection. And the data showing how he used the account, and who also used it, is as important to understanding how the tool worked as the non-public content.

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More on Brandon Straka’s So-Called Cooperation

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There was a funny moment in Brandon Straka’s February 24, 2022 January 6 Committee interview.

Close to the beginning of the interview, he provided a description of how, he claimed, the idea for Stop the Steal came about: someone, probably Ali Alexander, simply renamed a pre-existing MAGAt Twitter DM list sometime after the election.

A So there was a Twitter DM thread, which s to say, like, a private message thread that somebody had created — I have no idea who because in all likelihood it was probably created significantly before I was added to it. It was called MAGA Verified, which essentially means anybody who is a MAGA or, you know, Donald Trump supporter, who has a blue checkmark next to their name, so as in verified on Twitter.

And so somebody had created a group, a direct message group, and so I don’t know if anyone here maybe does or does not understand how Twitter works, but with a Twitter DM group, somebody can create a group and just add people. They don’t have to have your permission. Then it’s up to you to either leave the group or decide if you  want to stay in the group. 1) So, like, as right now as we speak, I’m probably added to hundreds of groups because I don’t really check my DMs that thoroughly, and I don’t make it an effort to go through and remove myself from every group that I’m added to.

But this particular group was called MAGA Verified, and it was a collection of people who are verified, you know, Republicans or Donald Trump supporters.

And then as (he claims) results started changing, people on the group decided to adopt the hashtag #StopTheSteal.

And at after the election, so I guess around November 5th, I would say, of 2020, 6several of us were in that group just sort of expressing confusion, exasperation, sadness about how the election results had suddenly changed during the night on November 4th going into November 5th.

And thenI think over the course I mean, I’d have to go back and look, but it was over the course of, I think, a day or two that plans started getting made to kind of deploy to swing States and host these First Amendment-protected events to encourage people to keep their spirits up and encourage their State legislators to hold a thorough forensic audit of the votes in theirStates, because people were very concerned about irregularities. So I’m going to go out on a limb and assume it was probably Ali Alexander who started using the Stop the Steal hashtag.

According to the cooperation memo the government filed in advance of Straka’s sentencing last year, which just got unsealed, it’s the same story he told to the FBI.

The “Stop the Steal” effort was formed through a private Twitter group of which Straka was a member. The group was formed “long before” the 2020 election and referred to itself as the “MAGA Verified” group because it was comprised of MAGA followers who were verified on Twitter. The members of the group used Twitter to exchange private direct messages with one another. Straka provided information about an individual, Ali Alexander, who was part of the MAGA Verified group.

There are a few problems with the story. First, as J6C pointed out to Straka, he was already organizing a vote fraud event, to take place after the election, before the election.

So we’ll give you time to look at this document, but it is it looks like it’s a permit 3 application filed by WalkAway Campaign. ~The date is October 28 of 2020. It’s for John 4 Marshall Park, and it’s scheduled — the proposed scheduled date is for November 15th.

If we go down to the second, page, the purpose of the event is a demonstration for free and fair elections. So help us understand, why did you –what were you thinking about on October 28th to want to have an event on November 15th about free: and fair elections?

In response to this observation, Straka bullshitted for a while and then gave up.

It just didn’t make sense, he said.

A Julie Hanson is an event planner that we’ve worked with over – for years on various events that we’ve done. I can’t answer this question, because this doesn’t make sense to me. I don’t know if she made a mistake when she put the date on the application, or if I don’t want to speculate why Julie put that date on the application, but I can tell you this doesn’t make sense to me, because I thought that Donald Trump was going to win the election, and my reaction to how the election turned out began on November 5th. So it makes no sense to me that I would’ve done – I would’ve asked to submit an application a week before the election. That doesn’t make sense to me.

Q So it’s your just want to make sure we have your testimony clear. You don’t recall instructing Ms. Hanson or approving an application in October for this event after the election on November 15th?

A Not in October, I don’t recall that. I — again, it just doesn’t make sense.

Right: This story doesn’t make sense. That’s the problem.

Plus, as J6C pointed out, the hash tag was actually in use well before the election. After Straka engaged in a really long spiel about how he didn’t much care of Ali Alexander registered the hash tag — “I just want[] to be told where to show up, what time, and where’s the microphone” — (as he said about January 6), J6C asked about the timing again.

Q Got it. That brings me back thank you, that was helpful. That brings me back, though, to the permit application from October 28th. It looks like Stop the Steal, the hashtag, I mean, was really starting to get traction early as September 7th of 2020.

We’ve seen tweets of Jack Posobiec doing it.

So do you recall maybe filing this application in October, for November 15th, to advance the Stop the Steal messaging that was starting to percolate in September, October, and November of 2020?

A Again, it just doesn’t make any sense to me. That – because I believed wholeheartedly that Donald Trump was going to win the election. ~ So it ~ it just doesn’t make sense to me that I would’ve decided a week before the election to submit a permit under the assumption that we’re going to lose the election. It just – that just doesn’t add up inmy mind.

In fact, J6C already knew that the hashtag had been in use even longer than that.

Though Ali Alexander, in his December 9, 2021 testimony, had tried to distinguish the hashtag from everything else, when asked why he suggested he should sue the Kremers after Roger Stone was denied a speaking slot on January 6, Alexander explained,

And there was all this pretense that, you know, Roger Stone is the gentleman who came up with the phrase Stop the Steal. I have, you know, this gentleman’s agreement with him that I  have a perpetual use of the license.

And the FBI would know that Stop the Steal went back to 2016, because abundant evidence about it would have been collected by Robert Mueller’s team.

So no one should have believed Straka’s explanation.

I have long raised questions about whether DOJ allowed itself to be snookered in giving Straka a sweet plea, when instead they should have charged him with obstruction. There’s nothing in the filings unsealed in recent days to alleviate my concerns.

That’s true, first of all, because two of the things he threw at prosecutors seem to have been chum, waste material thrown out to distract predators. Straka provided second-hand information from someone who may have been in Nancy Pelosi’s office.

Information that Elijah Schaffer was inside of Nancy Pelosi’s office that is currently being investigated. It is unknown whether any other information has been discovered by the Government concerning this lead.

The government still had not verified the tip a year later.

On March 5, 2021, Straka was interviewed by the FBI a second time. Sometime after his first interview, Straka recalled that an individual, David Leatherwood, told him that an individual, Elijah Schaffer, was inside of Nancy Pelosi’s office on January 6. This information is being investigated for its accuracy.

And Straka, just before sentencing, provided the name of a guy he lived close to in Nebraska (but had not previously known), an identification he claimed came from someone he didn’t even know on Twitter.

On information and belief, Mr. Straka positively identified Gavin Crowl as an individual who participated in January 6. Mr. Crowl’s identity had not been previously provided by anyone to Law Enforcement for almost eleven months. Mr. Crowl is a convicted Sex Offender who has been placed on the Sex Offender Registry in Nebraska. His identity was confirmed by using information provided on the Sex Offender Registry, and by cross-referencing public information from his LinkedIn profile with information he provided in an Internet interview with Bobby Powell, a Government-identified “insurrectionist advocate”. This individual can be heard encouraging the crowd to take the shield of the officer in the video recorded by Mr. Straka. Other video information provided by Mr. Straka shows this individual moving toward entering the Capitol before he was stopped. It is unknown whether this individual actually did enter the Capitol Building; and what other criminal activity he participated in.

His J6C interview makes it clear Straka shared this guy’s name for the purpose of floating conspiracy theories about Antifa.

A Okay. So I — it had been brought to my attention by somebody on social media who I  don’t know, a complete stranger, had essentially reached out to me to tell me that they had identified somebody in a video who was at the Capitol who they said this person told me that they identified a person who they said was a member of antifa.

This person told me, I watched this person dressed entirely in black from head to toe, and they said, then he went away for 10, 15 minutes or whatever, and he came back dressed asa Trump supporter. And he was causing agitation, you know, et cetera.

I engaged in a conversation with this person, because the person said to me, I have this on video, or something like that, and I said, Okay. So I looked at the video that the person was talking about, just because it sounded interesting to me, and I was shocked when I discovered that recognized this person as being somebody who was standing directly beside me in my video when I was on the Capitol steps.

Now, you know, I know for a fact that one of the crimes I’m — I was accused of committing was being in a restricted area. So this person had certainly committed the same crime that I committed, and I was also very curious if this person might’ve been encouraging the crowd in ways that it was alleged that I was encouraging the crowd.

And so, I asked this person if they knew the identity of this individual, and this person said, Yes. And so he gave me the name of this individual. I googled this individual and discovered that this individual has a violent criminal record.

At that point – and –and I also discovered that this person lives, coincidentally, very close by where I live.

According to the government sentencing memo, they did open an investigation into Crowl; it was new information for them.

On December 8, 2021, counsel for Straka provided the government with information regarding a United Capitol rioter who was at the U.S. Capitol. Straka recalled observing the individual while he was standing outside on the steps outside of the East Rotunda Doors. This individual stood nearby as a U.S. Capitol Police Officer’s protective shield was taken away from him. Straka believes that the individual joined in with the crowd yelling “take it, take it,” as rioters struggled with the officer to take his shield. After January 6, the individual, identified by Straka as Gavin Crowl, participated in an interview with insurrectionist advocate, Bobby Powell. Crowl recounted what he observed at the U.S. Capitol. Straka and Crowl reside in Nebraska and live within a short distance of each other. Straka’s information is beneficial in that Crowl was not previously identified by the FBI prior to Straka’s identification of Crowl.

[snip]

Based in the information provided by Straka, the FBI has opened an investigation into Crowl and his conduct at the U.S. Capitol on January 6.

Crowl is the one, notably, that Straka claimed to be afraid of, not Trump people threatening to retaliate (though DOJ submitted exhibits of texts from someone else demanding that Straka recant his testimony).

This violent sex offender, if he learns of Mr. Straka’s cooperation in identifying him (which would be the primary reason for any subsequent arrest and prosecution) has a predatory and aggressive history, which could easily result in retaliation against Mr. Straka or his family.

Crowl has not yet — publicly, anyway — been arrested, and even if he was, it’s not clear he ever did anything more than trespass outside the building.

While the tip may have been helpful, it was not cooperation about things that Straka was uniquely positioned to know.

The single prosecution on which Straka’s cooperation was said to help (usually the standard for credit at sentencing) was Simone Gold, the anti-vax activist who was arrested even before Straka was in January 2021, and who had already been charged with felony obstruction six days before the February 11 Straka interview where he first provided the information. In its sentencing memo, the government said Straka provided a voice mail that might help get Gold to plead.

Straka provided the government with voicemail messages that he received from Gold, whom he met in Washington D.C. on either January 5 or 6. The information contained in the voicemail messages is valuable in the government’s prosecution of Gold and may assist in a plea resolution of the Gold prosecution.

After further delay, Gold did plead out, not to the felony obstruction count, but to the more serious trespassing count. Her plea agreement had the standard cooperation paragraph in it, which sometimes suggests that the person had not yet sat for the further FBI interview required by virtually all misdemeanor pleas. The government sentencing memo in her case laid out several ways she continued to delegitimize her prosecution — and fundraise, to the tune of $430,000 — off it. In short, there’s absolutely no evidence that DOJ used the information Straka provided on Gold to advance the overall investigation. It made a misdemeanor plea easier to get, but not much more than that.

Gold is more likely to be held accountable in a lawsuit by her anti-vax group, which has split into factions over how she grifted the fundraising from it (though the failed attempt by Gold’s attorney, Kira West, to drop her as a client may suggest there might be legal accountability for the grift, as well).

The combined memos make it clear that the government viewed Straka’s cooperation to be most valuable for his insight into Stop the Steal, especially Alexander. Straka himself describes identifying people on one of the Stop the Steal threads (though this sounds like the known Twitter DM list; in his J6C transcript, he described a Signal thread as well).

Contact information regarding the following members of the Stop the Steal text thread, to include: Ali Alexander, Michael Coudrey, Scott Presler, Ashley St. Clair, Nathan Martin, Courtney Holland, Megan Barth, CJ Pearson, Ryan Fournier, and another telephone number unknown to Mr. Straka.

There’s a non-zero chance that the tenth number is either that of Paul Gosar or one of his staffers, because he was on that Twitter thread (and Straka filibustered about him when asked by J6C).

There are reasons for concern, though. None of the documents pertaining to Straka — from either J6C or DOJ — mention Mike Flynn, next to whom Straka sat at the Ellipse rally, which is particularly important given Straka’s description that he went back to the Willard after the rally.

And in the discussion of Straka’s information on the organizers of Stop the Steal (Straka did not mention Caroline Wren, though he may not have understood her role), DOJ adopts the same misspelling of the Kremers’ name as Straka did: “Kremmer” rather than “Kremer.”

Straka provided information about “Stop the Steal” members Amy Kremmer, Kylie Kremmer, Cindy Chafian. This information was useful in that it identified members of “Stop the Steal.” Neither the Kremmers nor Chafian are being prosecuted by the government at this time.

Note that J6C seemed not to have communications between Straka and Chafian that should have been in his production.

How aggressively must prosecutors be following this if, over a year into an investigation of January 6, they’re still not clear on who the Kremers are, whether or not their actions are deemed suspect?

And Straka’s memo seems to confirm my fear that DOJ had not yet turned to the earlier incitement from Stop the Steal — which was a key threat to state lawmakers are they were considering whether to support Trump’s coup attempt — until his third interview, in January 2022.

Additional information concerning Michael Coudrey, Scott Presler, Ashley St. Clair, Courtney Holland, Megan Barth, CJ Pearson, and Ryan Fournier, Amy and Kylie Kremmer, Cindy Chafian, Alex “Bruisewitz” (spelling unknown), Crystal (LNU) (an organizer and logistics person involved in rallies for President Trump), and Jenny Beth Martin; as well as information about specific rallies held in the months prior to January 6, was provided during Brandon’s third interview. [my emphasis]

Brandon Straka played a central role in intimidating election workers in my state of Michigan in 2020, and the government got all the way to sentencing before asking him about that process. That pisses me off and raises real questions about how thoroughly they investigated Straka before agreeing to a misdemeanor plea.

In his J6C interview, almost seven weeks after that third interview, Straka revealed that FBI at that point still retained all his devices except his phone. Three months after his third interview, DOJ subpoenaed Alexander. DOJ may not be done with Straka.

It may be that the trade-off — of getting immediate access to his devices rather than waiting to crack whatever security he had — still made the plea worth it. It may be that that early cooperation, and more importantly, the follow-up in January 2022, provided DOJ information they couldn’t have gotten without a lot more effort.

But J6C, without warrants, was able to poke a key hole in Straka’s story. At least on the public record, it seems that FBI was not so thorough, even with warrants and seized devices in hand.

Links

Timeline

January 11, 2021: Tip on Straka’s post to Twitter

January 13, 2021: Interview with Straka relative

By January 13, 2021: Straka removes January 5 video from Twitter; last view date for December 19, 2020 video cited in sentencing memo but not arrest affidavit

January 20, 2021: Straka charged by complaint

January 25, 2021: Straka arrest

February 17, 2021: First FBI interview

February 18, 2021: First continuance

March 25, 2021: Second FBI interview

June 3, 2021: Second continuance

July 2, 2021: Protective order

August 25, 2021: Third continuance

August 31, 2021: Date of plea offer

September 14, 2021: Deadline to accept plea

September 15, 2021: Straka charged by information

September 30, 2021: Stuart Dornan files notice of appearance for Straka

October 5, 2021: Updated information

October 6, 2021: Change of plea hearing (plea agreement; statement of offense); sentencing scheduled for December 17, with initial memo due December 10 and response due by December 15

Between October 7 and November 19, 2021: Pretrial services interview (sealed docket #28)

November 19, 2021: Brittany Reed substitutes for April Russo

December 8, 2021: Sentencing reset for December 22; sentencing memo due by December 15; Straka “provide[s] counsel for the government with information that may impact the government’s sentencing recommendation”

December 9, 2021: Ali Alexander J6C testimony

December 10, 2021: Straka shares sentencing position (possibly filed under seal)

December 11, 2021: Government tells defendants it seeks to continue, tells Straka it will consider request to dismiss case

December 16, 2021: Last view date for 2018 Straka video, Walkaway Foundation website, WalkAway Campaign PAC website, WalkAway Campaign YouTube Channel; ProPublica article on Michael Courdrey message (and attempts to distance Alex Jones and Ali Alexander)

December 17, 2021: Motion to continue (presented as joint) 30 days

By December 23, 2021: Sealed motion attempting to seal publicly filed motion to continue, denied by Judge Friedrich

January 5, 2022: Third FBI interview, this time including prosecutors (plural)

January 13, 2022: Government sentencing memo (sealed addendum at docket #37); government denies Straka request to dismiss case

January 14, 2022: Bilal Essayli files notice of appearance for Straka

January 20, 2022: Straka sentencing

February 22, 2022: Brandon Straka J6C testimony

April 8, 2022: Ali Alexander reports receiving a subpoena

June 24, 2022: Ali Alexander grand jury appearance

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Trump Worked with People Who Allegedly Worked with the Proud Boys to Obstruct the Peaceful Transfer of Power

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By my count, at least 14 people are known to have pled guilty to some kind of conspiracy on January 6, with four more cooperating against them. Another four were found guilty of one or more conspiracy in November’s Oath Keeper verdict. Eighteen people, in one way or another have been convicted of conspiring to prevent the peaceful transfer of power on January 6, most by obstructing the vote certification.

Trump played a key part in all those conspiracies.

Ronnie Sandlin, for example, first started planning to go, armed, to DC in response to Trump’s December 19 tweet, posting on December 23 that he planned to “stop the steal and stand behind Trump when he decides to cross the rubicon.” After he watched Trump’s speech on January 6, Sandlin did a live stream where he said, “I think it is time to take the Capitol.” Once he arrived at the Capitol, Sandlin and co-conspirator Nate DeGrave participated in tactically critical assaults on cops in two places, the East door and the door to the Senate gallery. After Sandlin helped him get into the gallery, Josiah Colt then rappelled from the gallery to the Senate floor.

Like Sandlin, Brad Smith started arming himself and planning to come to DC in response to Trump’s December 19 tweet.

The call to action was put out to be in DC on January 6th from the Don himself. The reason is that’s the day pence counts them up and if the entire city is full of trump supporters it will stop the for sure riots from burning down the city at least for awhile.

By December 31, Smith predicted, “Militias will be there and if there’s enough people they may fucking storm the buildings and take out the trash right there.” Smith and his co-conspirator, Marshall Neefe, participated in an assault on cops using an 8′ by 10′ Trump sign. And after the attack he boasted that the mission was successful because “we literally chased them out into hiding. No certification lol.”

Trump played a slightly different role in the Oath Keepers conspiracy. The Oath Keepers — Stewart Rhodes above all — viewed Trump as a means to prevent Biden’s election, because as President he could invoke the Insurrection Act and with it (the Oath Keepers believed) make the militias a legal arm of the state, defending Trump. Rhodes repeatedly called on Trump to invoke the Insurrection Act — on November 9, December 12, December 23, and January 6.

He dictated a note to Trump after January 6 asking him to call on the militias as his army to stop Biden from taking power.

For the most part, none of the channels via which Rhodes tried to speak directly to Trump (including Kellye SoRelle’s attempt to work through Rudy Giuliani’s son) are known to have reached Trump.

One of his attempted interlocutors, though, undoubtedly had access to Trump: Roger Stone, on whose Friends of Stone list Rhodes was sharing his plans for insurrection shortly after the election.

DOJ has exploited at least four phones owned by members of the Friends of Stone list: Rhodes and SoRelle, Owen Shroyer, and Enrique Tarrio. Probably DOJ asked for content from Ali Alexander as well (though he disclaimed having any Signal texts to the January 6 Committee).

While a jury found all the Oath Keepers guilty of obstructing the vote certification, with the key exception of Kelly Meggs (who was also in contact separately with the Proud Boys, Roger Stone, Ali Alexander, and alleged 3 Percenter Jeremy Liggett, who in turn had ties to the MAGA Bus Tour) as well as Jessica Watkins, it found the greater part of their conspiracy either overthrowing the government or interfering with with official duties: not obstructing the vote count. Their larger plan to keep Trump in power used different means than Trump used.

That’s not true of the Proud Boy Leaders, who are three days into their trial.

Not only did the Proud Boys allegedly pursue the same plan that Trump was pursuing — obstructing the vote certification on January 6 — but they were in communication with people who were in communication, and central to, Trump’s plan: most notably, Alex Jones, Ali Alexander, and Roger Stone. They were in communication with people who were in communication with people close to Trump during the attack.

Even their telephony records show that Enrique Tarrio, Joe Biggs, and Ethan Nordean were in contact with Alex Jones and Owen Shroyer during the period.

Records for Enrique Tarrio’s phone show that while the attack on the Capitol was ongoing, he texted with Jones three times and Shroyer five times.124 Ethan Nordean’s phone records reflect that he exchanged 23 text messages with Shroyer between January 4th and 5th, and that he had one call with him on each of those days.125 Records of Joseph Biggs’s communications show that he texted with Shroyer eight times on January 4th and called him at approximately 11:15 a.m. on January 6th, while Biggs and his fellow Proud Boys were marching at and around the Capitol.126

Given the known communication habits of the men, it’s possible there are Signal or Telegram communications that were unavailable to the J6C as well.

Alex Jones and Ali Alexander knew in advance they would lead the mob to the Capitol (the January 6 Report offers an unpersuasive explanation that the request came exclusively from Caroline Wren). Roger Stone had planned to join them, probably until he got cranky about being denied a speaking role on the morning of January 6. Mike Flynn wanted to latch on, as well, until the General got too cold and had to go back to his posh hotel room. “Hell no,” he said, according to Caroline Wren. “It’s freezing.”

Meanwhile, even as Shroyer was in touch with Biggs, Alexander was in touch with Caroline Wren, who remained at the Ellipse, and asked for 5-minute updates on the Trump’s progress to the Capitol (the text in question appears to have come from Wren, but may not have been provided in Alexander’s production).

The communication between Proud Boys and Jones in real time is critical because once the riot police showed up and slowed the attack, the Proud Boy leaders pulled up, effectively waiting until Jones appeared. And after Jones did appear, he told the mob following him that Trump was coming to give another speech — something Alexander, and so almost certainly Jones — knew to be false because Wren had told Alexander. Nevertheless, Jones led his mob to the East steps, riled them up with a 1776 chant, and left them there, where they were soon joined by the Oath Keepers (led by Kelly Meggs, who also was in touch with Alexander) and Joe Biggs and some other Proud Boys (including one who had been directing traffic). That collective mob breached the East door of the Capitol, opening a second major front on the Capitol and adding to the invasion of the Senate chamber.

There are rioters who were sentenced to two months in jail because they followed Alex Jones credulously to the top of those steps and joined the mob storming the Capitol.

And it wasn’t just Jones and Alexander who were in touch with Trump’s handlers.

Mark Meadows was, per Cassidy Hutchinson, in communication with Stone about his plans for January 6, at a time when Stone still planned to march to the Capitol with Jones and Alexander.

LIZ CHENEY: Thank you, Mr. Chairman. Before we turn to what Ms. Hutchinson saw and heard in the White House during the violent attack on the Capitol on January 6th, let’s discuss certain communications White House Chief of Staff Mark Meadows had on January 5th. President Trump’s associate, Roger Stone, attended rallies during the afternoon and the evening of January 5th in Washington, DC On January 5th and 6th, Mr. Stone was photographed with multiple members of the Oath Keepers who were allegedly serving as his security detail.

As we now know, multiple members of that organization have been charged with or pled guilty to crimes associated with January 6th. Mr. Stone has invoked his Fifth Amendment privilege against self-incrimination before this committee. General Michael Flynn has also taken the Fifth before this committee. Mr. Stone previously had been convicted of other federal crimes unrelated to January 6th.

General Flynn had pleaded guilty to a felony charge, also predating and unrelated to January 6th. President Trump pardoned General Flynn just weeks after the Presidential election, and in July of 2020, he commuted the sentence Roger Stone was to serve.

The night before January 6th, President Trump instructed his Chief of Staff Mark Meadows to contact both Roger Stone and Michael Flynn regarding what would play out the next day. Ms. Hutchinson, Is it your understanding that President Trump asked Mark Meadows to speak with Roger Stone and General Flynn on January 5th?

CASSIDY HUTCHINSON: That’s correct. That is my understanding.

LIZ CHENEY: And Ms. Hutchinson, is it your understanding that Mr. Meadows called Mr. Stone on the 5th?

CASSIDY HUTCHINSON: I’m under the impression that Mr. Meadows did complete both a call to Mr. Stone and General Flynn the evening of the 5th.

In an earlier interview, when she was still represented by Stefan Passantino, she had attributed the idea for this call to Peter Navarro or a Navarro staffer; the Navarro staffer who had let Mike Flynn into the White House on December 18, Garrett Ziegler, was another White House contact of Ali Alexander’s, in addition to Wren.

All this matters because of the way conspiracy law works, as laid out in the bullet points from Elizabeth de la Vega that I always rely on.

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.

Co-conspirators don’t all have to meet in a room together and agree to enter a conspiracy. That can happen (and did, in the Oath Keepers’ case) via a series of communications which networks everyone.

The demonstrative exhibit prosecutors used in the Oath Keeper trials showed how the various communications channels included everyone, even if some members of the conspiracy only interacted with a limited group of other co-conspirators.

I circled Rhodes and SoRelle in pink to show that even in the Oath Keeper trial, prosecutors treated the Friends of Stone list part of the communications infrastructure of the conspiracy.

Here’s what the larger conspiracy looks like, reflecting  the known communications between Rhodes, Meggs, Tarrio, Biggs, and Nordean and Jones and Stone, and the known communications between Jones and Stone and Alexander with Trump or his handlers, like Meadows, Wren, and Ziegler by way of Navarro.

The numbers and letters in parentheses come from one or another of the indictments charging conspiracy. As you can see, Trump’s known actions map onto the known, charged overt acts of various conspiracies to obstruct the vote count like a mirror.

Obviously, the pink part of this table has not been charged (yet). And it may not be unless prosecutors win guilty verdicts in the Proud Boys case. It also may not be if the obstruction charge gets narrowed on appeal.

For reasons I laid out here, the Proud Boys trial is far more complex than the Oath Keepers trial. And in the Proud Boys trial, like the Oath Keepers trial, prosecutors don’t have a clear map showing that the plan was to occupy the Capitol; instead they have testimony that Biggs and Nordean kept consulting, and everyone took orders from them, and those orders had the effect of sending cells of Proud Boys off to breach parts of the building. So it is not at all certain that prosecutors will win convictions of the men — Tarrio, Biggs, and Nordean — who were working with people who were working with Trump and his handlers.

But this is one of the means via which DOJ has been working to hold Trump accountable since just months after the attack (I first laid this out in July 2021, long before most commentators understood how DOJ was using obstruction).

Even with the disorganized conspiracy (Sandlin and friends), prosecutors have carefully shown how the men took Trump’s December 19 tweet as an explicit instruction, took instructions from a WildProtest flyer put out by Ali Alexander, believed Trump had ordered them to march to the Capitol. There are hundreds more rioters who took Trump’s December 19 tweet as an instruction, though in the case of Sandlin and his co-conspirators, they took steps that were critical to the occupation of the Capitol and the Senate chamber in response.

But with the Proud Boys, to an extent thus far only seen with Oath Keeper Kelly Meggs, the communication ties, via a two step network, to Trump’s own actions and directions. And with the Proud Boys, that coordination builds off years-long relationships, particularly between Biggs and Jones and Stone, and through them, to Trump.

Everyone was working towards the same goal: to prevent Congress from certifying Joe Biden’s victory. There were, in various places, explicit agreements made. There were, as with Trump’s Stand Back and Stand By comment that prosecutors used to kick off this trial, more implicit agreements as well.

And DOJ is now at the point where it is beginning to show how those agreements, explicit and implicit, all worked together to make the assault on the Capitol successful.

Conspiracy guilty verdicts

Oath Keepers Stewart Rhodes, Kelly Meggs, Jessica Watkins, Kenneth Harrelson, Kelly Meggs, Mark Grods, Caleb Berry, James Dolan, Joshua James, Brian Ulrich, Todd Wilson (11 conspiracy verdicts)

Proud Boys Matthew Greene, Charles Donohoe, Jeremy Bertino, with Isaiah Giddings, Louis Colon, and James Stewart cooperating (3 known conspiracy verdicts)

Disorganized Militia Ronnie Sandlin, Nate DeGrave, with Josiah Colt cooperating (2 conspiracy verdicts)

“Patriots” Marshall Neefe and Charles Smith (2 conspiracy verdicts)

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Ali Alexander Asked for 5-Minute Updates on Trump’s Actions on January 6

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Amid the release of the January 6 Committee transcripts, I’ve been vacating a bit. But I wanted to do a post on what I have been reading.

Let’s start with the fact that at 12:19PM on January 6, Ali Alexander texted Caroline Wren with a request that she update him every five minutes on POTUS’ plan to walk to the Capitol.

At 12:19 p.m. you ask Ms. Wren — so I’m assuming this is after you’ve left The Ellipse — if POTUS is walking and for her to give you an update every 5 minutes. So at 12:19 pm. on January 6th, was it your understanding that President Trump was going to come to the Capitol?

This reference is not mentioned in the final report.

Caroline Wren is the fundraiser (she reported to Kim Guilfoyle during the campaign) who arranged for Publix heir Julie Fancelli to provide $3 million in support of the rally. She provided J6C a good deal of records regarding her involvement and provided testimony that — while it shaded her knowledge of threats of violence and pitched some dodgy fundraising as a normal approach to finance — more closely resembled the truth than a lot of other witnesses. She is one of five women, along with the Kremers, Katrina Pierson, and Cindy Chafian, whose in-fighting has dominated the coverage of the planning for January 6, undoubtedly distracting from some other key players. Pierson described her as aligned with Alex Jones and the others, though in her testimony, Wren provided not unreasonable explanations for her ties to Alex Jones and Roger Stone, not least that Fancelli had donated money believing that crazies like Jones and Stone would have a big role.

It wasn’t that she was close to Jones and Stone, it’s that she was trying to meet the expectations of the donor who had paid for the whole thing.

As you no doubt know, Ali Alexander is the Roger Stone protégé who ran Stop the Steal. His December 9 testimony, at which he was represented by the lawyer who helped a Roger Stone protégé stall the Mueller investigation for a year, Paul Kamenar, is epic, hilarious, and not very honest. At times he shaded or lied to protect Roger Stone, various members of Congress, and Alex Jones. He explicitly said that he distanced himself from the White House during the post-election period so no one could blame Trump for any threats (described as political pressure, not violence) Alexander made against them.

So whenever I’m talking to a State legislator or someone, and saying this is the political fallout, I don’t want anyone to think President Trump told this kid to come up and threaten me.

He seems to suggest in his testimony that they funded buses through Turning Point to hide Stop the Steal’s involvement. His explanations for why he got the permit for his own rally under a cover name are epic.

He invented a bullshit line in response to a question about his Signal texts relating to January 6.

Q don’t recall in your production. Please correct me if I’m wrong. Did we get any Signal chats you from?

A I provided one with Charlie Kirk. ~ They auto-disappeared. That’s like a data retention policy. So don’t -in response to the committee’s investigation on the Capitol attack, and then as you guys widened it, in my opinion, to cover legally permissible events that I wanted to cooperate with this committee about like January 6th, I don’t recall having any in my possession from Signal. Most of what I did was verbal. Some of what did is in text message.

Perhaps a result, while J6C had an extended discussion about a Signal chat with Oath Keepers Alexander was privy to (one that referenced 13 people who had already been indicted by that point), they did not raise the Friends of Stone Signal chat at all during that interview.

In short, Alexander’s testimony was not all that helpful for understanding his central role in January 6.

But both Alexander and Wren provided some telephony texts to the committee, and as a result, this text was available to ask Alexander about.

At 12:19 PM on January 6, Alexander asked Wren to give him updates every five minutes on Trump’s progress. In response to the question about the text, Alexander bullshitted a bit until he explained, simply, that Wren was at the Ellipse.

A One, really appreciate you pointing out this text. This is helpful. I’s also helpful that | use the word “walking,” and you characterized it as marching before you read out the quote. And my understanding is informed by a lot of things, you know, my race, my faith, my profession. And professionally, I’m sorry to bore you guys, but professionally, in my interactions with observing Secret Service over the years, observing Democrat nominees and Republican nominees and Presidents is, something like thats just not allowed to happen  But I do know that we live in interesting times. ~ And if it were to happen, I would like an advance notice. And, again, I’m sorry. I saw the faces, but I’m sorry if my answer is weird. Trying to be helpful.

Q So based upon this text, you were asking Ms. Wren, because you presume she would know if President Trump was going to walk to the Capitol?

A She was physically at The Ellipse, and I wasn’t.

Q All right.

This seemed to satisfy investigators, and they moved into where Alexander headed from there (Alexander seems to have obscured his actions during the Ellipse speech with conflicting claims, first, that he was able to move in and out of the VIP section, but also that Secret Service was limiting the number of people who were permitted to leave with him and Alex Jones via what he described as a special exit).

This text is, in my opinion, really significant. The J6C Report does not provide a very satisfying answer about the genesis of the request, which Alex Jones said came from the White House, for him to lead the march from the Ellipse to the Capitol. In significant part, it concludes that when Alexander and Jones told others they were in contact with the White House — including the request to lead the march to the Capitol — they were using shorthand for Wren, in spite of wild obfuscation from Alexander about it, his obvious ties to Stone, and his bullshit answer about how he knew what “POTUS wants.”

Q May just ask, Mr. Alexander, was there anyone other than Caroline Wren a who you were talking to at the time who claimed to be speaking on behalf of the White House that you can remember whether about this or any other aspect of that event?

A Oh man, that.

Q On behalf of the White House.

A Well, you said White House, and I haven’t said White House at all.

Q On behalf – replaying what the President’s plans were.

A There was a lot of chatter and in these situations, sometimes you’ll hear something third party and it is credible and sometimes not. ~ And, you know, as a professional in this space, somebody — what I will say is unique about Donald J. Trump to politics is everyone thinks they are his adviser, that everyone thinks they know exactly what he’s saying. It has been very widely reported that that, you know, the last thing said in his ear is the thing he’ll do. And, so, if I gave you a specific answer, it wouldn’t be doing you justice or me justice. My main point of contact with what I’m calling Trump world was Caroline Wren regarding what I consider the scope of the committee, and that’s January 6th.

To be sure, Alexander did attribute the request to Wren (though could not date it).

Q And the plan — we talked about right when we started the deposition about how you walked, marched, whatever you want to call it, from the Ellipse to the Capital, and that when it actually happened you were with Alex Jones and Owen Shroyer. Am I right?

A [Nonverbal response]

Q When did you come to know that you were going to make that movement, walk with them, those two particular men? Was it just the morning of January 6th, or had that always been the plan, that the three of you together would walk up there?

A There was no plan for Owen to walk with us.

Q okay.

A I don’t know when there was a plan. I wouldn’t even call it a plan. The idea that Roger Stone, myself, and Alex Jones would go at the end of Trump’s speech and position ourselves at the front of the overflow crowd and figuring out how logistically that worked so we didn’t have to go out the same exit as everybody was something that Caroline Wren first proposed to me — don’t know when — and I thought, okay, cool idea.

Q But before the morning of the 6th?

A Certainly we talked about the idea, yeah.

Q Okay. And did you ever talk with Mr. Jones about this before the morning of the 6th, this plan to march or walk, whatever you call it?

A I’m not sure

Q Is it possible you did and you just don’t remember?

A It’s possible.

Q Is Mr. Jones someone you would speak to on the phone, only in person, or what was the nature of the relationship?

A Yeah, would speak on the phone. I appeared on his show a few times. I could call a security guard if couldn’t get ahold of his head of security. I could call if didn’t get ahold of Alex.

Q Is that Tim Enlow?

A I know his name is Tim.

Q Okay. And for the record, E-n-l-o-w. And what do you remember before January 6th about Mr. Jones telling you, if you do remember anything, about walking from the Ellipse to the Capitol? Do you remember him saying anything about that event?

A No

Q All right. So you’ve never heard it from his lips to you that he spoke with someone in the White House or Trump about him walking from the Ellipse to the Capitol?

A don’t recall anything like that.

Q Okay. Now, are you aware that he said publicly that that happened, that he had that he was told by Trump to walk from the Capitol from the Ellipse to the Capitol?

A I’m not aware of that. Alex is prone to exaggeration and/or could have been referencing Caroline Wren.

Q Understood. When it comes to Mr. Stone, do you know — he has said publicly that he was told, whether by Trump or the White House, that he was going to lead or be a part of leading the walk from the Ellipse to the Capitol. Are you aware that he said that publicly?

A I believe so.

Q All right. Did he ever talk to you about that before January 6th, what his thoughts or what his beliefs were about what was going to happen in terms of that march?

A Not to the best of my recollection.

Q So whether anybody –whether Trump or the White House told him that he was going to be part of that march?

A Again, I think this was an idea, as best that I understood it, that originated with Caroline, pinged off me, I said okay, and then was given to Alex and Roger, if it was given to them at all. I could have given –I could have talked to them about it.

Q That’s why we’re asking.

A Okay. Yeah, l don’t know.

Q We’re trying to understand.

A Yeah. And don’t know what the play byplay of all of that was.

The Report doesn’t rely on any of this blather from Alexander for its conclusion that Wren is probably the one who requested that Jones et al lead the mob to the Capitol. They rely primarily on Wren, and an Alex Jones broadcast that should be treated with the same reliability as his claims that Sandy Hook victims were crisis actors.

It is likely that both got that idea from Caroline Wren, a Republican fundraiser who helped organize the Ellipse event.111 Jones texted Wren at 12:27 p.m., asking when he should leave the Ellipse and begin the march.112 While Wren originally expected Jones, Roger Stone, and retired Lt. Gen. Michael Flynn to march to the Capitol, Stone did not attend the Ellipse rally and so he was not present to accompany Jones on the march as planned.113 Additionally, while President Trump was delivering his speech, Wren askedFlynn if he was going to march with Jones. Flynn responded, “Hell, no. It’s freezing.”114

While Stone and Flynn did not march, Jones and Alexander led others to the Capitol, though it is not clear how many people followed them.115

112. Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Alexander Jones, (Jan. 24, 2022), Ex. 13 at 0:29 (Excerpt from The Alex Jones Show on Jan. 7, 2022); Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Caroline Wren Production), REVU_000475 (Jan. 6, 2021, Alex Jones text message to Caroline Wren); Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Caroline Wren Production), REVU_000484 (Jan. 5, 2021, Tim Enlow text message to Caroline Wren).

113. Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Caroline Wren, (Dec. 17, 2021), p. 244.

114. Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Caroline Wren, (Dec. 17, 2021), p. 244.

Perhaps they found Wren more credible than Alexander, which she is. Except according to her version, it would be impossible for Alexander to have floated the idea to Stone and Jones, because in her telling, he was added on at the last minute, and not because he was a key part of Jones’ retinue, but because he had a rally to run.

Q But, at some point, you have conversations with Alex Jones or All Alexander, right, about how are you going to get them out of the VIP area so they can get to the Capitol?

A Right

Q And what do those discussions include?

A Alex wanted to go with Roger Stone. Ali wasn’t really a part of that Ali — so now — I didn’t really get the sense that Ali and Alex like knew each other very well or — like, it was never a group text. Like, the conversations were kind of isolated. So I  just never — they may be very good friends, they might not know each other. So — but Alex Jones’ expectation was that he and Roger Stone would lead a march from the Ellipse to their rally at the Capitol. That also was Ali’s rally or something. And — but ~ and they’d asked about like directions or things to do. And those were things I never could get or did get answers to. [my emphasis]

I won’t get into all the ways that this testimony is inconsistent with the relationship that Wren described that she had with Alexander, or the reasons why.

Just understand, for the moment, that the J6C conclusion that the White House requested this probably came from her is not consistent with the documentary or testimonial record and comes in the face of Jones and Stone refusing to cooperate and the fact that everyone was lying about Signal text communications, including known “group texts” of the sort that Wren disavows possibility of.

More importantly, because J6C was so determined to come up with some conclusion about who directed Jones to lead the mob to the Capitol, it ignored several things.

First, even ignoring Roger Stone’s likely role in all this, Alexander told J6C he had another White House source: Garrett Ziegler. In fact, his attribution of stuff to Wren came specifically with a disavowal of Ziegler’s role in all this.

The person that talked to was Caroline Wren, and to make a duplicative effort to me would seem a waste of resources or my time. I talk to hundreds of people probably a day. I mean, I was like the busiest person in America. I know some people don’t like that, but a lot of other people love it. And another gentleman I talked to at the White House was — and we did talk about election integrity, but I don’t recall talking about the 6th – Garrett Ziegler, who worked for Mr. Navarro. And I know we talked about election integrity. I don’t recall talking to him about the 6th or the 5th. And I don’t see how he would be in any authority to kind of do anything like that.

Alexander did attribute his understanding of events about January 6 in December to Ziegler, however.

Q So, on December 19th, what people from the White House were you in contact with?

A I don’t know who I was referencing. Mary [sic] — maybe it was Garrett Ziegler.

Q I don’t see Garrett Ziegler in any of your productions. Was it a phone call –

A We

Q I was going to say was it a phone call, was it a text message, or was it an email?

A I believe having the phone call with him. I don’t remember receiving any emails from him.

Ziegler, recall, was the guy who let Mike Flynn and Sidney Powell into the White House on December 18, hours before Trump first tweeted about the January 6 event that Alexander was (per his own testimony) already planning.

In spite of the possibility that Ziegler was another White House contact with Alexander during this period, in his own deposition — scheduled in July, at a time when J6C would have had a much clearer idea of the problems with Alexander’s testimony, especially — no one asked him about Alexander (or Jones or Stone), at all. To be sure, Ziegler invoked the Fifth about everything. He wouldn’t have answered any questions in any case. But neither in Alexander’s deposition nor in Ziegler’s do they pursue the possibility that he might have had a more central role in this than they let on (though there are a few others that’s true of as well).

What I’m interested in is the more alarming possibility: that Alexander’s request for five minute updates on Trump played a part in execution that day.

As noted above, the report does not mention that Alexander asked Wren for five minute updates on the movements of the President.

It also does not mention that at 12:59, Wren texted Alexander and told him “POTUS not walking.”

Q Thats fine. We saw a text message earlier you saw where Caroline Wren told you

A What time was it at?

Q 12:59, POTUS not walking. Do you remember that?

J6C uses this to establish that when Alex Jones used the promise that Trump would speak on the East side of the building to lure people to form a second front, Alexander, at least, had the expectation Trump would not come (though that overstates things — this text would have been before the confrontation in the limo and this text could have meant only that Trump was not walking but might ride to the Capitol).

But they ignore another possibility: that Alexander and Jones and Owen Shroyer (the latter of whom now shares an attorney with Joe Biggs) were relaying updates to people at the Capitol.

The report does lay out, for example, how much traffic was passing between the Jones group and the Proud Boys based on the limited telephony call records they managed to obtain (though it rather infuriatingly doesn’t provide the times of these communications).

Proud Boys were among the crowd Jones gathered during his march. Matthew Walter, president of a Tennessee chapter of the organization,122 was near the National Mall with two other Proud Boys from Tennessee and decided to join Jones.123 Other, more prominent members of the Proud Boys appear to have been in contact with Jones and Shroyer about the events of January 6th and on that day. Records for Enrique Tarrio’s phone show that while the attack on the Capitol was ongoing, he texted with Jones three times and Shroyer five times.124 Ethan Nordean’s phone records reflect that he exchanged 23 text messages with Shroyer between January 4th and 5th, and that he had one call with him on each of those days.125 Records of Joseph Biggs’s communications show that he texted with Shroyer eight times on January 4th and called him at approximately 11:15 a.m. on January 6th, while Biggs and his fellow Proud Boys were marching at and around the Capitol.126

122. Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Matthew Walter, (Mar. 9, 2022), p. 78.

123. Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Matthew Walter, (Mar. 9, 2022), p. 75.

124. Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Google Voice Production, Feb. 25, 2022).

125. Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Verizon Production, Nov. 19, 2021).

126. Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (AT&T Production, Nov. 24, 2021).

And this summary of communications does not include comms using other than telephony (like Signal texts or radios).

At the very least, the information Wren passed to Alexander may have influenced Jones’ decision to hold up at Freedom Plaza for a period, before continuing on to the Capitol. But given the solid evidence that former Infowars employee Biggs was coordinating with this group, it seems likely that Alexander’s information got shared with those modulating the attack on the Capitol.

In other words, it’s not just that someone asked Alex Jones to lead the mob to the Capitol. It’s not just that, when he arrived, Alex Jones moved them to the East side where hundreds played a role in the second major front of the attack. But it’s that Jones and Alexander easily could have relayed information from those handling Trump to those handling the mob at the Capitol.

For a year, I’ve been describing how the relationship between the Proud Boys and Alex Jones’ crew was a pivot between the mob and the President, one through which DOJ could charge a conspiracy with those who attacked cops and stormed the Capitol. That’s all pending the outcome of the Proud Boy Leader trial, opening arguments for which start this week. It’s a complex trial and I have no idea what to expect.

As J6C releases transcripts, we’ve learned that Jones’ role was even more central than I imagined. While J6C doesn’t focus enough on the role of the Stop the Steal events in posing a real threat to legislators who ignored Trump, the transcripts do reveal more details about how Alexander deployed that threat. Jones was central to Julie Fancelli’s decision to fund the event. According to Alexander, about a third of the mob were Jones’ fans. In spite of months of effort, J6C was never able to explain how or who gave the order to Jones to lead the mob to the Capitol (and the Ziegler silence and the Stone disinterest are not the only gaps in their efforts to explain it so far).

J6C’s failure to answer that question was largely attributable to the efforts, by virtually all those personally involved, to obstruct the investigation. DOJ has some, but not unlimited, tools to overcome such obstruction (including several cooperating witnesses from both primary militia conspiracies and full exploitation of several phones involved, including those of Enrique Tarrio and Owen Shroyer).

Jones’ (and Alexander’s and Stone’s) roles look just as important to understanding the plan on January 6 as they did a year ago. But there’s even more reason to believe that Jones was not just a dumb guy with a megaphone leading sheep to slaughter. Jones and Alexander were in a position to help those kicking off the attack account for the involvement — or not — of the President.

Back-up material

Ali Alexander: Live tweet; December 9, 2021 transcript

Julie Fancelli: Live tweet; February 18, 2022 transcript

Alex Jones: January 24, 2022 transcript

Charlie Kirk: May 24, 2022 transcript

Roger Stone: December 17, 2021 transcript

Caroline Wren: Live tweet; December 17, 2021 transcript

Garret Ziegler: Post; July 19, 2022 transcript

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The Roger Stone Convergence at the Winter Palace

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There was a status hearing in the Owen Shroyer case last week that was so short it was over by the time I had entered the dial-in code. Shroyer, you’ll recall, is the Alex Jones sidekick who was charged for violating his specific prohibition on being an asshole at the Capitol. His lawyer, Norm Pattis, happens to be the lawyer who sent a large swath of Alex Jones’ data to the Texas Sandy Hook plaintiffs, and then presided over the $1 billion judgement in the Connecticut Sandy Hook lawsuit. On June 14, Pattis noticed his appearance on Joe Biggs’ legal team, effectively giving him visibility on how badly the discovery in the Proud Boy case implicates Shroyer and Jones and Ali Alexander. Shroyer appears to be stalling on his decision about whether he wants to enter a plea agreement — one that would presumably require some cooperation — or whether he wants to stick around and be charged in a superseding indictment along with everyone else.

Shroyer has until November 29 to make that decision, around which time I expect a Roger Stone convergence to become more clear.

The Roger Stone convergence has been coming for some time (I’ve been pointing to it for at 14 months). Yesterday, NYT reported that one means by which it is coming is in the dissemination of the We the People document laying out plans to occupy buildings — under the code “Winter Palace” — which the FBI found on the Enrique Tarrio phone it took over a year to exploit.

As I laid out here, the document is important because it shows Tarrio’s motive on January 6 in his assertion that “every waking moment consists of” planning for revolution.

41. Between December 30 and December 31, 2020, TARRIO communicated multiple times with an individual whose identity is known to the grand jury. On December 30, 2020, this individual sent TARRIO a nine-page document tiled, “1776 Returns.” The document set forth a plan to occupy a few “crucial buildings” in Washington, D.C., on January 6, including House and Senate office buildings around the Capitol, with as “many people as possible” to “show our politicians We the People are in charge.” After sending the document, the individual stated, “The revolution is important than anything.” TARRIO responded, “That’s what every waking moment consists of… I’m not playing games.”

And an exchange he had with now-cooperating witness Jeremy Bertino that they had succeeded in implementing the Winter Palace plan shows that Tarrio recognized that occupying buildings was part of his plan.

107. At 7:39 pm, PERSON-1 sent two text messages to TARRIO that read, “Brother. ‘You know we made this happen,” and “I’m so proud of my country today.” TARRIO responded, “I know” At 7:44 pm. the conversation continued, with PERSON-1 texting, “1776 motherfuckers.” TARRIO responded, “The Winter Palace.” PERSON-1 texted, “Dude. Did we just influence history?” TARRIO responded, “Let’s first see how this plays out.” PERSON-1 stated, “They HAVE to certify today! Or it’s invalid.” These messages were exchanged before the Senate returned to its chamber at approximately 8:00 p.m. to resume certifying the Electoral College vote.

The NYT story reveals that Eryka Gemma is the person who sent the document to Tarrio, but she was not its author.

As a part of the investigation, prosecutors are seeking to understand whether Mr. Engels has ties to a little-known Miami-based cryptocurrency promoter who may have played a role in the Capitol attack.

A week before the building was stormed, the promoter, Eryka Gemma, gave Mr. Tarrio a document titled “1776 Returns,” according to several people familiar with the matter. The document laid out a detailed plan to surveil and storm government buildings around the Capitol on Jan. 6 in a pressure campaign to demand a new election.

[snip]

The federal indictment of Mr. Tarrio says that the person who provided him with “1776 Returns” told him, shortly after it was sent, “The revolution is more important than anything.” That person was Ms. Gemma, according to several people familiar with the matter.

But Ms. Gemma was not the author of “1776 Returns,” which was written by others, first as a shared document on Google, the people said.

It remains unclear who the original authors were.

It may be unclear or detrimental to the sources for this story who originally wrote the document; it’s probably not to investigators who can simply send a warrant to Google.

And whether because investigators know who wrote the document or for some other reason (such as that they have just a few more weeks of pre-sentencing cooperation with Joel Greenberg), they’re trying to understand whether this document, laying out a plan to occupy buildings, had an analogue in the Florida-based riots that key Roger Stone associate, Jacob Engels, staged in 2018 in an attempt to thwart any delays in certification for Rick Scott (and Ron DeSantis, who gets a positive shout out by name in the Winter Palace document).

On Nov. 9, [2018] a group of about 100 angry protesters, including members of the Proud Boys, descended on the Broward County elections office, carrying pro-Scott and pro-Trump signs and protesting the recount.

The event drew support from several far-right activists in Florida linked to Mr. Stone — among them, Ali Alexander, who later organized Stop the Steal events around the 2020 election, and Joseph Biggs, a leader of the Proud Boys who has since been charged alongside Mr. Tarrio in the Jan. 6 seditious conspiracy case.

The NYT describes this line of inquiry as happening via two different sets of prosecutors, which is a sign of either convergence or simply the networked structure that DOJ’s approach, using parallel and (through Stone) intersecting, conspiracy indictments clearly facilitated (Shroyer’s prosecution team, incidentally, features an Oath Keeper prosecutor and a key assault prosecutor).

In recent months, prosecutors overseeing the seditious conspiracy case of five members of the Proud Boys have expanded their investigation to examine the role that Jacob Engels — a Florida Proud Boy who accompanied Mr. Stone to Washington for Jan. 6 — played in the 2018 protests, according to a person briefed on the matter.

The prosecutors want to know whether Mr. Engels received any payments or drew up any plans for the Florida demonstration, and whether he has ties to other people connected to the Proud Boys’ activities in the run-up to the storming of the Capitol.

Different prosecutors connected to the Jan. 6 investigation have also been asking questions about efforts by Mr. Stone — a longtime adviser to Mr. Trump — to stave off a recount in the 2018 Senate race in Florida, according to other people familiar with the matter.

While the NYT describes (breaking news!) that Engels was one of the people who in 2019, along with Tarrio, crafted an attack on the judge presiding over Roger Stone’s case, Amy Berman Jackson, it does not note that the Stop the Steal effort dates back two years earlier than the 2018 riot, to voter intimidation efforts that Stone pursued that look similar to the current drop box intimidation effort being disseminated via Trump’s shitty social media website (NYT does mention the Brooks Brothers riots in 2000 and notes the participants “apparently work[ed] with Mr. Stone” — more breaking news).

Nor does it describe the backstory to how Biggs showed up in Florida in 2018, fresh off his ouster from InfoWars after playing a key role in both the PizzaGate and Seth Rich hoaxes, both part of a Russian info-op that Stone played a key role in. But it’s part of the prehistory of the Proud Boys that prosecutors are now tracing.

I have no idea whether the very clear 2016 precedent is part of this. DOJ wouldn’t need to do (much) fresh investigation of it because Mueller and DC USAO did quite a bit of investigation before Bill Barr torched the investigation all to hell and then Trump pardoned Stone to avoid being implicated himself. But if it was part of this, no one who would share those details with NYT would know about it unless and until it was indicted. That’s even true of the 2019 incident; DOJ did at least some investigative work into the funding of that, the same questions being asked now about how Engels organized the 2018 riot.

But whether this investigative prong extends no further back than 2018 or whether it includes the Stone Stop the Steal activity that demonstrably paralleled a Russian effort, it does seem that DOJ is investigating how the prior history of the Proud Boys parallels these efforts to undermine democracy and did so in the place — Miami — where the Proud Boys, schooled by the master rat-fucker, are increasingly taking on an official role.

That may not be an investigation about Engels’ actions, directly (though he has long been in the thick of things). Rather, it may be an investigation into resources that were consistent throughout these developments.

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Friends of Sedition: The Networked January 6 Conspiracy

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I’d like to look at several developments in recent days in the interlocking January 6 investigations.

First, as I noted Friday, the January 6 Committee subpoena to the former President focuses closely on communications with or on behalf of him via Signal. It specifically asks for communications with the Proud Boys and Oath Keepers (including on Signal). And Roger Stone is the first person named on the list of people all of whose post-election communication with Trump (including on Signal) the Committee wants. Clearly, the Committee has obtained Signal texts from others that reflect inclusion of the then-President and expects they might find more such communications, including some involving Stone and the Proud Boys and Oath Keepers.

Then, on Friday, one of the the main Proud Boy prosecutors, Erik Kenerson, asked to continue Matthew Greene’s cooperation for another 120 days, which would put the next status update in late February, over a month after the Proud Boy leader’s trial should be done. There are, admittedly, a great number of Proud Boy defendants who will go to trial long after that, but Greene doesn’t know many of them (he had just joined the Proud Boys and mostly interacted with other New York members like Dominic Pezzola). Nevertheless, prosecutors seem to think he may still be cooperating after the first big trial.

Those details become more interesting given how DOJ is presenting the Oath Keeper conspiracy at trial. Last Thursday, DOJ added the various communication channels each participant was subscribed to on their visual guide of the various co-conspirators.

It’s not surprising they would do that. To prove the three conspiracies these defendants are charged with, DOJ needs to prove each entered into an agreement to obstruct the vote certification, obstruct Congress, and attack the government. DOJ is relying on the various statements in advance of (and, for sedition, after) January 6 to show such intent. The fact that an intersecting collection of Signal channels incorporated most of the charged defendants will go a long way to show they were all willfully part of these three conspiracies.

But as you can see with Elmer Stewart Rhodes and Kellye SoRelle (circled in pink), DOJ has included Stone’s Signal channel — Friends of Stone — along with the Oath Keeper ones. As DOJ laid out last week, in addition to Rhodes and SoRelle, Enrique Tarrio, Alex Jones, and Ali Alexander were on the FOS channels, in addition to Stone himself.

DOJ has included things Rhodes said on the FOS chat in its timeline leading up to and on January 6. Significantly, at 2:28 on January 6, Rhodes informed the FOS chat that they were at “the back door of the Capitol.” (See the context in Brandi Buchman and Roger Parloff live threads.)

The thing is, many of the participants in FOS that prosecutors have, thus far, identified as participating in the chat (SoRelle, Ali Alexander, and Alex Jones) and most of the Oath Keepers were there on the East side of the Capitol or had only recently left. So was Owen Shroyer, who was also on FOS; he had been on the top of the stairs with Alexander and Jones.

Enrique Tarrio is one exception. He wasn’t present at the East side of the Capitol, but he was following along closely on social media — and likely already knew what was happening on the East side of the Capitol from Joe Biggs, who went through the East doors right along with the Oath Keepers.

Which means the only person mentioned so far who now needed to be told where the Oath Keepers were was Stone, back at the Willard.

We learned one more thing recently, at the last January 6 Committee hearing.

At 1:25PM — after the attack on the Capitol had started — Trump’s Secret Service detail was still planning on bringing him to the Capitol two hours later, around 3:30. That was after, per a video clip in which Nancy Pelosi said she would punch Trump if he showed up, Secret Service told Pelosi they had talked him out of coming.

But 18 minutes after Rhodes told the Friends of Stone list where the Oath Keepers were, at 2:46, Joseph Hackett came out of the Capitol and looked around, as if he was expecting someone to show up.

The fact that Rhodes was updating the FOS list from the Capitol suggests he may have been getting feedback from Stone and whoever else was on the list, including those who may have been coordinating with the then-President.

And whatever else DOJ’s use of the FOS list as part of this conspiracy does, it establishes the basis to argue that those coordinating on the FOS list were, themselves, in a conspiracy together: Rhodes and SoRelle with Tarrio (whom both met in the parking garage) and Alex Jones and Ali Alexander and Stone.

Just as importantly, it would network the conspiracies. That would put all the various Proud Boys taking orders from Tarrio in a conspiracy with those on the FOS list. It would put all the Oath Keepers conspiring with Rhodes and SoRelle in a conspiracy with those on the FOS list.

And it would put those on the FOS list in a conspiracy with those directing the attack on the Capitol.

I laid out over 14 months ago that, if DOJ were to charge Trump in conjunction with the attack on the Capitol, it would likely be part of an intersecting conspiracy with those already being charged.

Finally, if DOJ were to charge Trump, they would charge him in a conspiracy to obstruct the vote count that intersected with some of the other conspiracies to obstruct the vote count, possibly with obstruction charges against him personally. In general, I don’t think DOJ would charge most of Trump’s discrete acts, at least those conducted before January 20, as a crime. There are two possible exceptions, however. His call to Brad Raffensperger, particularly in the context of all his other efforts to tamper in the Georgia election, would have been conducted as part of campaigning (and therefore would not have been conducted as President). It seems a clearcut case of using threats to get a desired electoral outcome. It’s unclear whether Trump’s request that Mike Pence to commit the unconstitutional action — that is, refusing to certify the winning electoral votes — would be treated as Presidential or electoral. But that demand, followed closely with Trump’s public statements that had the effect of making Pence a target for assassination threats, seems like it could be charged on its own. Both of those actions, however, could and would, in the way DOJ is approaching this, also be overt acts in the conspiracy charged against Trump.

In the last two weeks, DOJ has started to show how those conspiracies intersect.

Unsurprisingly, they intersect right through the former President’s rat-fucker.

Update; Corrected Pelosi timing, per Nadezhda.

Update: Tried to clarify that Tarrio was on the chat but was not (as the Oath Keepers, Jones, and Alexander were) on the East side of the Capitol.

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Rule of Law: DOJ Obtained Trump’s Privilege-Waived Documents in May

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Last December, when the DC Circuit ruled that the Archives should share Donald Trump’s materials relating to January 6 with the January 6 Committee, it emphasized the “rare and formidable alignment of factors supports the disclosure of the documents at issue.”

On this record, a rare and formidable alignment of factors supports the disclosure of the documents at issue. President Biden has made the considered determination that an assertion of executive privilege is not in the best interests of the United States given the January 6th Committee’s compelling need to investigate and remediate an unprecedented and violent attack on Congress itself. Congress has established that the information sought is vital to its legislative interests and the protection of the Capitol and its grounds. And the Political Branches are engaged in an ongoing process of negotiation and accommodation over the document requests.

It likewise pointed to the careful attention (and month-long reviews) the Biden White House gave to each tranche of materials at issue.

Still, when the head of the Executive Branch lays out the type of thoroughgoing analysis provided by President Biden, the scales tilt even more firmly against the contrary views of the former President.

Judge Patricia Millet’s opinion even found that the due consideration Biden exercised was enough to reject Trump’s claim that the Presidential Records Act had given him “unfettered discretion to waive” his own Executive Privilege claim.

Lastly, former President Trump argues that, to the extent the Presidential Records Act is construed to give the incumbent President “unfettered discretion to waive former Presidents’ executive privilege,” it is unconstitutional. Appellant Opening Br. 47. There is nothing “unfettered” about President Biden’s calibrated judgment in this case.

Citing Mazars, the opinion also noted SCOTUS’ deference to information-sharing accommodations between the Political Branches, the Executive and Legislative Branches.

Weighing still more heavily against former President Trump’s claim of privilege is the fact that the judgment of the Political Branches is unified as to these particular documents. President Biden agrees with Congress that its need for the documents at issue is “compelling[,]” and that it has a “sufficient factual predicate” for requesting them. First Remus Ltr., J.A. 107; see also Third Remus Ltr., J.A. 173. As a result, blocking disclosure would derail an ongoing process of accommodation and negotiation between the President and Congress, and instigate an interbranch dispute.

The Supreme Court has emphasized the importance of courts deferring to information-sharing agreements wrestled over and worked out between Congress and the President. See Mazars, 140 S. Ct. at 2029, 2031.

In other words, the request of a coequal branch of government, made with the assent of the incumbent President, presented a very powerful legal case for sharing Trump’s January 6 records with Congress.

When the Supreme Court considered the question, only Ginni Thomas’ spouse disagreed (Brett Kavanaugh did attempt to limit the decision).

The courts may well have come to this same conclusion had Merrick Garland’s DOJ subpoenaed records from the Archives for its own investigation of Donald Trump directly. A “subpoena or other judicial process issued by a court of competent jurisdiction for the purposes of any civil or criminal investigation or proceeding” is one of the three exceptions the Presidential Records Act makes to the parts of the law that restrict access to the materials for a period after the President’s Administration.

But constitutionally, it would have been a very different legal and political question.

Importantly, the only way to obtain a privilege waiver from Biden in that situation would be to violate DOJ’s Contacts Policy that firewalls the White House from ongoing criminal investigations, and so the request would either have lacked that waiver from the incumbent President, or would risk politicizing the DOJ investigation.

The Biden White House’s strict adherence to that Contacts Policy is what allowed Karine Jean-Pierre to make a categorical denial of any advance warning of the search on Trump’s home and to use that as a reaffirmation of the rule of law last week.

She’ll probably get similar questions today, and make the same categorical denial of any White House knowledge.

All that is the predictable background to the NYT report that, after the January 6 Committee subpoenaed these records, and after the Archives gave both Presidents an opportunity to weigh in, and after the DC Circuit and Supreme Court ruled against Trump’s complaints, DOJ subpoenaed all the same material from the Archives themselves.

Federal prosecutors investigating the role that former President Donald J. Trump and his allies played in the events leading up to the Jan. 6, 2021, attack on the Capitol have issued a grand jury subpoena to the National Archives for all the documents the agency provided to a parallel House select committee inquiry, according to a copy of the subpoena obtained by The New York Times.

The subpoena, issued to the National Archives in May, made a sweeping demand for “all materials, in whatever form” that the archives had given to the Jan. 6 House committee. Those materials included records from the files of Mr. Trump’s top aides, his daily schedule and phone logs and a draft text of the president’s speech that preceded the riot.

While the NYT doesn’t say it, it seems likely that the Archives gave these already privilege-reviewed documents to prosecutor Thomas Windom with nary a squeak, and we’re just learning about it — indeed Trump may have just learned about it, which is where the subpoena probably came from — four months later. We’re just learning about it, importantly, after the FBI seized another 27 boxes of documents that Trump had refused to turn over to the Archives, including records (if you can believe Paul Sperry) pertinent to January 6.

When I predicted this would happen in December, I went out of my way to ask constitutional lawyers if they had another solution to the puzzle of getting Trump’s documents without violating that Contacts Policy, and no one even engaged with a question — how to overcome Executive Privilege — that had been a real problem for Robert Mueller, when he was investigating Donald Trump.

People will wail about the timing of this request and others, including the NYT, will falsely claim this is proof that DOJ is following the January 6 Committee.

Asking the National Archives for any White House documents pertaining to the events surrounding Jan. 6 was one of the first major steps the House panel took in its investigation. And the grand jury subpoena suggests that the Justice Department has not only been following the committee’s lead in pursuing its inquiry, but also that prosecutors believe evidence of a crime may exist in the White House documents the archives turned over to the House panel.

There were covert steps taken before that, including the (admittedly belated) request for call records at least a month earlier.

In addition, Justice Department investigators in April received phone records of key officials and aides in the Trump administration, including his former chief of staff, Mark Meadows, according to two people familiar with the matter.

And we’ve already seen proof that the fake electors investigation, at least, has pursued leads that the Committee had not yet made public before DOJ was including them in subpoenas.

Furthermore, the subpoena was issued before the Committee started its public hearings on June 9.

There are a couple of other notable details about this timing.

First, in addition to coming after the SCOTUS decision, this subpoena came after Mark Meadows and Ivanka made efforts to comply with the Presidential Records Act by providing the Archives copies of official business they conducted on their own email and Signal accounts. It also came after any responsive documents from the 15 boxes of records that Trump did provide to the Archives earlier this year were identified. DOJ made its request at a time when the Archives were more complete than they had been when the Committee started identifying big gaps in the records.

The only thing we know remains missing from those Archives (aside from documents seized last week) is Peter Navarro’s ProtonMail account, which DOJ sued to obtain earlier this month.

The Archives’ request also came after Trump had largely given up the effort to fight individual releases.

As NYT correctly noted, DOJ only issued this subpoena at a time when it was issuing other subpoenas (the fact of, but not the substance, of Brandon Straka’s cooperation had been made public in January, and Ali Alexander’s excuses for his actions at the Capitol had already been debunked in January after Owen Shroyer, who was arrested a year ago, made the very same excuses).

The subpoena was issued to the National Archives around the same time that it became publicly known that the Justice Department was looking beyond the rioters who were present at the Capitol and trying to assess the culpability of people who had helped organize pro-Trump rallies in Washington on Jan. 6. In the spring, for instance, Mr. Windom issued a grand jury subpoena to Ali Alexander, a prominent organizer of “Stop the Steal” events who complied by submitting records to prosecutors and testifying before the grand jury.

We don’t know what steps DOJ took before May (aside from those that have shown in cases like Straka’s). We do know that at that point, DOJ started taking overt steps that would build on previous covert ones. We also know that we keep learning about steps that DOJ took months ago, when people were wailing that they would know if DOJ had taken such steps.

I can’t prove that this was always the plan from the time, 375 days ago, when I first observed how DOJ was getting privilege waivers from Biden without violating their new Contacts Policy. I can’t prove it was the plan when I wrote an entire post in December about the puzzle of Executive Privilege waivers. I had no idea that DOJ was issuing that subpoena when I stated that it was probably doing so in May, the month it occurred.

We should assume the same kind of [synthesis with a Congressional investigation as happened with Mueller] is happening here. All the more so given the really delicate privilege issues raised by this investigation, including Executive, Attorney-Client, and Speech and Debate. When all is said and done, I believe we will learn that Merrick Garland set things up in July such that the January 6 Committee could go pursue Trump documents at the Archives as a co-equal branch of government bolstered by Biden waivers that don’t require any visibility into DOJ’s investigation. Privilege reviews covering Rudy Giuliani, Sidney Powell, and John Eastman’s communications are also being done. That is, this time around, DOJ seems to have solved a problem that Mueller struggled with. And they did so with the unsolicited help of the January 6 Committee.

What I can say with no doubt, though, is that Merrick Garland’s DOJ solved one of the most challenging constitutional problems facing an investigation of a former President. And it solved that problem months ago.

And no one knew about it.

emptywheel Trump Espionage coverage

Trump’s Timid (Non-Legal) Complaints about Attorney-Client Privilege

18 USC 793e in the Time of Shadow Brokers and Donald Trump

[from Rayne] Other Possible Classified Materials in Trump’s Safe

Trump’s Stolen Documents

John Solomon and Kash Patel May Be Implicated in the FBI’s Trump-Related Espionage Act Investigation

[from Peterr] Merrick Garland Preaches to an Overseas Audience

Three Ways Merrick Garland and DOJ Spoke of Trump as if He Might Be Indicted

The Legal and Political Significance of Nuclear Document[s] Trump Is Suspected to Have Stolen

Merrick Garland Calls Trump’s Bluff

Trump Keeps Using the Word “Cooperate.” I Do Not Think That Word Means What Trump Wants the Press To Think It Means

[from Rayne] Expected Response is Expected: Trump and Right-Wing DARVO

DOJ’s June Mar-a-Lago Trip Helps Prove 18 USC 793e

The Likely Content of a Trump Search Affidavit

All Republican Gang of Eight Members Condone Large-Scale Theft of Classified Information, Press Yawns

Some Likely Exacerbating Factors that Would Contribute to a Trump Search

FBI Executes a Search Warrant at 1100 S Ocean Blvd, Palm Beach, FL 33480

The ABCs (and Provisions e, f, and g) of the Espionage Act

Trump’s Latest Tirade Proves Any Temporary Restraining Order May Come Too Late

How Trump’s Search Worked, with Nifty Graphic

Pat Philbin Knows Why the Bodies Are Buried

Rule of Law: DOJ Obtained Trump’s Privilege-Waived Documents in May

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The Evidentiary Hole in the Middle of Ari Melber’s “Not anything but evidence”

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Fresh off giving Andrew Weissmann a platform to complain that DOJ’s multi-spoked investigation into January 6 should be multi-spoked, fresh off giving Adam Schiff an opportunity to make the (still-uncorrected) false claim that Congress never gets ahead of DOJ on parts of investigations they’re conducting in parallel, Ari Melber rolled out a schema (one, two) about his understanding of Trump’s corrupt acts that others have found really helpful.

It came with a nifty, mostly-accurate graphic that shows how multiple attempts to stay in power worked in parallel.

That graphic is helpful for those trying to keep track of all the efforts Trump pursued.

But Ari’s “special report,” which he claims is “built on evidence, not anything but evidence,” is most useful for demonstrating the evidentiary hole in the middle of his understanding of events leading up to January 6. And not just his understanding: also my own, and (at least based off their hearings) even the January 6 Committee’s. Neither Ari, the Committee, nor I, nor anyone I know to be investigating — save possibly DOJ and one or two really well sourced journalists — knows for certain what happened between the end of the December 18, 2020 meeting where Sidney Powell pitched Trump on a plan to seize voting machines and Trump’s December 19 tweet that led Stop the Steal plotters to start taking steps that led to a violent attack on the Capitol.

Before I lay out how well Ari illustrates that evidentiary hole, there are multiple things that Ari gets wrong (I’ve put my transcription of the most important parts of his presentation below). Most have to do with Ari’s apparent misunderstanding of how the blue collar violent attack on the Capitol related to the white collar parts of the coup attempt he has familiarity with.

For example, he claims, without evidence, that Rudy Giuliani, Mark Meadows, and John Eastman wanted pardons, “totally separate from the January 6 violence.” But according to Cassidy Hutchinson, both Rudy and Meadows knew by January 2 that Trump planned to go to the Capitol and it might get “real, real bad.”

CASSIDY HUTCHINSON: As Mr. Giuliani and I were walking to his vehicles that evening, he looked at me and said something to the effect of, Cass, are you excited for the 6th? It’s going to be a great day. I remember looking at him saying, Rudy, could you explain what’s happening on the 6th? He had responded something to the effect of, we’re going to the Capitol.

It’s going to be great. The President’s going to be there. He’s going to look powerful. He’s — he’s going to be with the members. He’s going to be with the Senators. Talk to the chief about it, talk to the chief about it. He knows about it.

LIZ CHENEY: And did you go back then up to the West Wing and tell Mr. Meadows about your conversation with Mr. Giuliani?

CASSIDY HUTCHINSON: I did. After Mr. Giuliani had left the campus that evening, I went back up to our office and I found Mr. Meadows in his office on the couch. He was scrolling through his phone. I remember leaning against the doorway and saying, I just had an interesting conversation with Rudy, Mark. It sounds like we’re going to go to the Capitol.

He didn’t look up from his phone and said something to the effect of, there’s a lot going on, Cass, but I don’t know. Things might get real, real bad on January 6th.

Hutchinson also tied White House awareness of the militias now charged with seditious conspiracy with Rudy’s presence.

CASSIDY HUTCHINSON: I recall hearing the word Oath Keeper and hearing the word Proud Boys closer to the planning of the January 6th rally when Mr. Giuliani would be around.

As for Eastman, Mike Pence’s Counsel, Greg Jacob, accused Eastman in real time, as his family was worried whether Jacob would get out alive, of causing the “siege” on the Capitol by “whipping large numbers of people into a frenzy over something with no chance of ever attaining legal force through actual process of law.”

[T]hanks to your bullshit, we are now under siege.

[snip]

[I]t was gravely, gravely irresponsible of you to entice the President of with an academic theory that had no legal viability, and that you well know we would lose before any judge who heard and decided the case. And if the courts declined to hear it, I suppose it could only be decided in the streets. The knowing amplification of that theory through numerous surrogates, whipping large numbers of people into a frenzy over something with no chance of ever attaining legal force through actual process of law, has led us to where we are.

Judge David Carter’s opinion finding it likely Eastman and Trump conspired to obstruct the vote count included Trump’s effort to send the mob, which we now know he knew to be armed, to the Capitol.

President Trump ended his speech by galvanizing the crowd to join him in enacting the plan: “[L]et’s walk down Pennsylvania Avenue” to give Vice President Pence and Congress “the kind of pride and boldness that they need to take back our country.”218

So all of these three men, per key witnesses and one judge, have legal exposure that is directly tied to the violence at the Capitol. Maybe they only wanted pardons for their white collar crimes, but — according to the evidence — all are implicated in the blue collar crimes.

Ari also treats the consideration of a plan to have DOD seize the voting machines as “the military plot,” one that ended on December 18. There are two problems with this. First, Ari ignores that this plan was revised to put DHS in charge of seizing the machines, which is how the plan resurfaced on December 31, when Trump serially tried to get DOJ and DHS to seize the machines.

ADAM KINZINGER: Mr. Rosen, the President asked you to seize voting machines from state governments. What was your response to that request?

JEFFREY A. ROSEN: That we had — we had seen nothing improper with regard to the voting machines. And I told him that the — the real experts that had been at DHS and they had briefed us, that they had looked at it and that there was nothing wrong with the — the voting machines. And so that was not something that was appropriate to do.

ADAM KINZINGER: There would be no factual basis to seize machines. Mr. Donoghue —

JEFFREY A. ROSEN: — I — I don’t think there was legal authority either.

ADAM KINZINGER: Yeah. Mr. Donohue can you explain what the President did after he was told that the Justice Department would not seize voting machines?

RICHARD DONOGHUE: The President was very agitated by the Acting Attorney General’s response. And to the extent that machines and — and the technology was being discussed, the Acting Attorney General said that the DHS, Department of Homeland Security, has expertise in machines and certifying them and making sure that the states are operating them properly.

And since DHS had been mentioned, the President yelled out to his Secretary get Ken Cuccinelli on the phone. And she did in very short order. Mr. Cuccinelli was on the phone. He was the number two at DHS at the time. It was on the speakerphone, and the President essentially said, Ken, I’m sitting here with the Acting Attorney General.

He just told me it’s your job to seize machines and you’re not doing your job. And Mr. Cuccinelli responded.

More importantly, Ari ignores that both militias charged with sedition and a goodly number of other armed rioters believed that larger scale violence would break out (possibly via clashes with counter-protestors, possibly in response to the GOP attempt to steal votes at the Capitol) on January 6, which would create the excuse for Trump to invoke the Insurrection Act to accord legal authority to the mob to act on his behalf. That will literally be Stewart Rhodes’ defense against a sedition charge, that he expected his attack on the US to come with Trump’s legal sanction.

And the plan may have gone further than that. To the extent that Trump asked the National Guard to be prepared for January 6, it was to protect his supporters, not to protect the Capitol.

Mr. Meadows sent an email to an individual about the events on January 6 and said that the National Guard would be present to ‘‘protect pro Trump people’’ and that many more would be available on standby.

When reports that the Guard would deploy first started to come out on January 6, Proud Boy Charles Donohoe [now a cooperating witness] reacted with surprise that the Guard would attack, rather than protect, Trump supporters.

That is, the actual plans for a military coup, rather than a Sidney Powell plan that Trump rejected then revisited, envisioned having armed Trump supporters and the National Guard holding the Capitol together. It was a plan that multiple militia members — most notably Rhodes, which forms a key part of the sedition evidence against him — but even joined by some members of Congress continued to pursue after January 6. There was a military plot that was far worse than the one that Ari labels as “that very bad red illegal plan,” but to understand it, you need to understand what happened at the Capitol, and what plans continued for weeks — still continue!! — after, per Ari, the violence “ended within one day.”

On top of a lack of understanding of what actually happened at the Capitol, Ari’s scheme includes conflicting claims. Ari claims that after Trump chose not to pursue Sidney Powell’s plan on December 18, he turned to “muscle.” “So that’s when I bring muscle to January 6.” His nifty graphic shows the plans to “sabotage Jan. 6” (adopting an utterly bizarre word, “sabotage,” which whitewashes both the violence planned and the legal crime, obstruction, committed) started right then, on December 19. But then, after claiming that Trump turned to “muscle” starting on December 19, Ari suggests that Trump’s only agency in the violence that ensued was the speech he gave on January 6. “The law makes it hard to pin an insurrection on one speech.”

In his presentation, at least, Ari ignores that “muscle” had been a part of the plan from the start, with operatives forming mobs at counting locations in the swing states that in turn created the cover for the fake electors plot and elicited threats against election officials, and it continued through to January 6 and beyond.

This may stem from an unfortunate unevenness on the part of the January 6 Committee.

The seventh hearing — the one purportedly focused on the rioters — depicted the actions of Ali Alexander and Alex Jones as an organic response to Trump’s December 19 tweet.

Donald Trump issued a tweet that would galvanize his followers, unleash a political firestorm, and change the course of our history as a country. Trump’s purpose was to mobilize a crowd. And how do you mobilize a crowd in 2020? With millions of followers on Twitter, President Trump knew exactly how to do it. At 1:42 AM on December 19, 2020, shortly after the last participants left the unhinged meeting, Trump sent out the tweet with his explosive invitation.

Trump repeated his big lie and claimed it was “statistically impossible to have lost the 2020 election” before calling for a big protest in DC on January 6th, be there, will be wild. Trump supporters responded immediately. Women for America First, a pro-Trump organizing group, had previously applied for a rally permit for January 22nd and 23rd in Washington, DC, several days after Joe Biden was to be inaugurated.

But in the hours after the tweet, they moved their permit to January 6th, two weeks before. This rescheduling created the rally where Trump would eventually speak. The next day, Ali Alexander, leader of the Stop the Steal organization and a key mobilizer of Trump supporters, registered Wildprotest.com, named after Trump’s tweet.

Wildprotest.com provided comprehensive information about numerous newly organized protest events in Washington. It included event times, places, speakers, and details on transportation to Washington DC. Meanwhile, other key Trump supporters, including far right media personalities, began promoting the wild protest on January 6th. [Begin videotape]

ALEX JONES: It’s Saturday, December 19th. The year is 2020, and one of the most historic events in American history has just taken place. President Trump, in the early morning hours today, tweeted that he wants the American people to march on Washington DC on January 6th, 2021.

That hearing similarly implied that Oath Keeper Kelly Meggs’ efforts to set up an alliance between the militias, which undoubtedly started at least days earlier, was a response to Trump’s tweet.

On December 19th at 10:22 a.m., just hours after President Trump’s tweet, Kelly Meggs, the head of the Florida Oath Keepers, declared an alliance among the Oath Keepers, the Proud Boys and the Florida Three Percenters, another militia group.

He wrote, we have decided to work together and shut this shit down. Phone records obtained by the Select Committee show that later that afternoon, Mr. Meggs called Proud Boys leader Enrique Tarrio, and they spoke for several minutes. The very next day, the Proud Boys got to work. The Proud Boys launched an encrypted chat called the Ministry of Self-defense.

That is, in places, the Committee encouraged this notion that everything pivoted on December 19 after that tweet.

But elsewhere, the Committee made it clear that the “muscle” and the militia were part of the plan from the start. Its fourth hearing on the Big Lie, for example, made clear that the earlier mobs were led by the very same people who seemingly sprung to action in response to Trump’s December 19 tweet.

[Ali Alexander]:

Let us in. Let us in. Let us in. Special session. Special session. Special session. We’ll light the whole shit on fire.

NICK FUENTES:

What are we going to do? What can you and I do to a state legislator besides kill him? Although, we should not do that. I’m not advising that, but I mean what else can you do? Right?

UNKNOWN:

The punishment for treason is death.

[End Videotape]

ADAM SCHIFF:

The state pressure campaign and the danger it posed to state officials and to State Capitols around the nation was a dangerous precursor to the violence we saw on January 6th at the US Capitol.

[snip]

The Select Committee has uncovered evidence in the course of our investigation that at stop the steal protests at state capitols across the country, there were individuals with ties to the groups or parties involved in the January 6th attack on the US Capitol. One of those incursions took place in the Arizona House of Representatives building, as you can see in this footage.

This is previously undisclosed video of protesters illegally entering and refusing to leave the building. One of the individuals prominently shown in this video is Jacob Chansley, perhaps better known as the QAnon Shaman. This rioter entered the Capitol on January 6th, was photographed leaving a threatening note on the dais in the US Senate chamber, and was ultimately sentenced to 41 months in prison after pleading guilty to obstruction of an official proceeding. Other protesters who occupied the Arizona House of Representatives building included — included Proud Boys, while men armed with rifles stood just outside the entrance.

And different parts of the seventh hearing showed that these ties are much better established, including through Roger Stone’s Friends of Stone listserv that started plotting immediately after the election.

Raskin: In the same time frame, Stone communicated with both the Proud Boys and the Oath Keepers regularly. The committee obtained encrypted content from a group – – from a group chat called Friends of Stone, FOS, which included Stone, Rhodes, Tarrio and Ali Alexander.

The chat focused on various pro-Trump events in November and December of 2020, as well as January 6th. As you can see here, Stewart Rhodes himself urged the Friends of Stone to have people go to their state capitols if they could not make it to Washington for the first million MAGA March on November 14th. These friends of Roger Stone had a significant presence at multiple pro-Trump events after the election, including in Washington on December the 12th. On that day, Stewart Rhodes called for Donald Trump to invoke martial law, promising bloodshed if he did not.

[snip]

JAMIE RASKIN: Encrypted chats obtained by the Select Committee show that Kelly Meggs, the indicted leader of the Florida Oath Keepers, spoke directly with Roger Stone about security on January 5th and 6th. In fact, on January 6th, Stone was guarded by two Oath Keepers who have since been criminally indicted for seditious conspiracy.

One of them later pleaded guilty and, according to the Department of Justice, admitted that the Oath Keepers were ready to use, quote, lethal force if necessary against anyone who tried to remove President Trump from the White House, including the National Guard. As we’ve seen, the Proud Boys were also part of the Friends of Stone Network.

Stone’s ties to the Proud Boys go back many years. He’s even taken their so-called fraternity creed required for the first level of initiation to the group.

[snip]

Katrina Pierson, one of the organizers of January 6th rally and a former campaign spokeswoman for President Trump, grew increasingly apprehensive after learning that multiple activists had been proposed as speakers for the January 6th rally. These included some of the people we discussed earlier in this hearing.

Roger Stone, a longtime outside advisor to President Trump; Alex Jones, the founder of the conspiracy theory website Infowars; and Ali Alexander, an activist known for his violent political rhetoric. On December 30th, Miss Pierson exchanged text messages with another key rally organizer about why people like Mr. Alexander and Mr. Jones were being suggested as speakers at the President’s rally on January 6th. Ms. Pierson’s explanation was POTUS, and she remarks that the President likes the crazies.

Remember that the Committee cut a good deal of their presentation focused on the militia in that seventh hearing to integrate more of Pat Cipollone’s testimony, which I think was one of the more unsuccessful planning decisions the Committee made.

Even still, taken as a whole, the Committee shows that the network around Roger Stone, which linked Ali Alexander, Alex Jones, and other movement activists to the militias (Jones had his own long-standing ties to the militias, including his former employee Joe Biggs), was riling up crowds starting immediately after the election, took concrete steps seemingly in response to Trump’s December 19 tweet, and continued to do so on January 6.

I mean, Roger Stone has been doing this since 2000.

In his most recent schema at least, Ari ignores all of that. Stone, Alexander, the militias, go unmentioned, and Trump’s role in the violence is limited to a single speech.

Which brings me back to the evidentiary gap that Ari and I share, seemingly in conjunction with the Committee.

In Ari’s telling, Donald Trump and Peter Navarro (with whom Ari has had a series of interviews) are the agents of this timeline. In his telling, Trump made an effort to “find a coup plotter” who would go further than his personal lawyer Rudy, who at least according to Hutchinson, had ties to the militias (though Powell is currently funding the legal defense of several Oath Keepers). Ari claimed that Powell was still on the campaign team, even though Rudy had explicitly and publicly stated she had no role on the campaign as early as November 22.

And Ari suggested that Trump adopted Powell’s plan, then either “back[ed] down” or “quit” it.

But as the January 6 Committee described it, it’s not really clear what happened; Pat Cipollone couldn’t even say whether Powell was appointed Special Counsel.

PAT CIPOLLONE: I don’t know what her understanding of whether she had been appointed, what she had been appointed to, Ok? In my view, she hadn’t been appointed to anything and ultimately wasn’t appointed to anything, because there had to be other steps taken. And that was my view when I left the meeting. But she may have a different view, and others may have a different view, and — and the president may have a different view.

To make matters worse, there are few if any credible witnesses here. Sidney Powell and her entourage (including Patrick Byrne, Mike Flynn, and an unnamed attorney) are batshit insane. So is Rudy. Cipollone, who gets treated as a grown-up, seems to be protecting Trump with his privilege claims. Meadows showed up later, but he’s a liar. Cassidy Hutchinson was texting details about the screaming and took a picture of Meadows escorting Rudy from the premises, but she is not known to have been in the meeting.

What seems common to all descriptions is that the Powell entourage showed up without an appointment and were let in by (as Ari notes) Peter Navarro aide Garrett Ziegler, though Patrick Byrne’s account describes two others being involved in their unplanned entry as well. That’s not a plan, it’s a pitch.

During the course of the meeting, Trump entertained the Powell plan because, he complained, Rudy and others were offering him nothing better.

UNKNOWN: So one of the other things that’s been reported that was said during this meeting was that President Trump told White House lawyers Mr. Herschmann and Mr. Cipollone that they weren’t offering him any solutions, but Ms. Powell and others were. So why not try what Ms. Powell and others were proposing? Do you remember anything along those lines being said by President Trump?

DEREK LYONS: I do. That sounds right.

ERIC HERSCHMANN: I think that it got to the point where the screaming was completely, completely out there. I mean, you got people walk in, it was late at night, had been a long day. And what they were proposing I thought was nuts.

RUDY GIULIANI: I’m gonna — I’m gonna categorically describe it as you guys are not tough enough. Or maybe I put it another way. You’re a bunch of pussies. Excuse the expression, but that — that’s I — I’m almost certain the word was used.

But the impression given by virtually all versions of this story (key versions linked below) is that by the end of the night, the White House lawyers and Rudy had mostly convinced Trump not to adopt this plan.

If that’s the case (and several people have backed that story under oath), this will be exculpatory if and when Trump ever goes to trial, not inculpatory. Entertaining a suspect idea — even the arguably legal one of appointing Jeffrey Clark to more aggressively pursue voter fraud claims, and especially a plan to seize the poll machines — but rejecting it on the advice of lawyers, even if Trump was persuaded to do so largely out of self-interest, is evidence someone is trying to stay inside the law, not break it. To be sure, there’s plenty of other evidence that Trump knowingly broke the law, but some of the most contentious meetings will actually be used in his defense. That just means prosecutors will find their proof of motive in places more directly tied to the crimes.

But the meeting accounts showing lawyers at least stalling on any decision about seizing the machines is where the trail goes dark.

No one has yet explained what happened between the time everyone left and the moment Trump’s tweet went out, and the understanding with which key planners adjusted their own timelines. Instead, we get narratives like Ari’s, or Jamie Raskin’s, that present the timing as proof that Trump took a third alternative — a pretty strong inference, undoubtedly — without an explanation of how the tweet got sent out or whether those involved knew where things would lead or who pitched Trump.

Not long after Sidney Powell, General Flynn, and Rudy Giuliani — Giuliani left the White House in the early hours of the morning, President Trump turned away from both his outside advisers’ most outlandish and unworkable schemes and his White House counsel’s advice to swallow hard and accept the reality of his loss.

Instead, Donald Trump issued a tweet that would galvanize his followers, unleash a political firestorm, and change the course of our history as a country. Trump’s purpose was to mobilize a crowd. And how do you mobilize a crowd in 2020? With millions of followers on Twitter, President Trump knew exactly how to do it. At 1:42 AM on December 19, 2020, shortly after the last participants left the unhinged meeting, Trump sent out the tweet with his explosive invitation.

Trump repeated his big lie and claimed it was “statistically impossible to have lost the 2020 election” before calling for a big protest in DC on January 6th, be there, will be wild. Trump supporters responded immediately. Women for America First, a pro-Trump organizing group, had previously applied for a rally permit for January 22nd and 23rd in Washington, DC, several days after Joe Biden was to be inaugurated.

But in the hours after the tweet, they moved their permit to January 6th, two weeks before. This rescheduling created the rally where Trump would eventually speak. The next day, Ali Alexander, leader of the Stop the Steal organization and a key mobilizer of Trump supporters, registered Wildprotest.com, named after Trump’s tweet.

Wildprotest.com provided comprehensive information about numerous newly organized protest events in Washington. It included event times, places, speakers, and details on transportation to Washington DC. Meanwhile, other key Trump supporters, including far right media personalities, began promoting the wild protest on January 6th. [Begin videotape]

It appears that both Powell’s contingent and Rudy left after midnight, with Meadows and Rudy together alone as Rudy left. Less than two hours later, that tweet went out, a tweet that was demonstrably central to both the organized and disorganized mobilization of the mob, one that has long been a focus of DOJ’s prosecutions (proof, among other proof, that Ari’s claim that DOJ has only focused on January 6 and the days immediately before it is false).

It’s certainly possible that after everyone left Peter Navarro came in, or maybe just Ziegler, and presented an alternative plan, a mob, but Ari presents no evidence that happened and it’s unlikely either Ziegler or Navarro would have been silent about their role in it. It’s more likely that Rudy and Meadows agreed they had to offer Trump another alternative, and they settled on January 6 (certainly, Meadows had advanced knowledge of Rudy’s plans for January 6). It’s possible that Trump had a late night call with someone else — Roger Stone or Bannon, maybe — who operationalized what came next. Maybe the dim-witted Meadows came up with the plan by himself.

Meadows, who refused to cooperate with the Committee, surely knows. Dan Scavino, who refused to cooperate, spent four years knowing what led up to most every tweet that Trump sent out. He also must know.

And while Ari doesn’t appear to know and I don’t either and the Committee doesn’t explain it if they know the answer, the one other place one might learn the answer is from those who turned existing infrastructure — the Stop the Steal effort, the permits — towards planning for January 6 (both of which DOJ has issued grand jury subpoenas to learn).

DOJ has been a bit coy about whether they know. That’s why I pointed to the remarkable use of the passive voice in Donohoe’s statement of offense in April, which virtually alone among January 6 filings obscures Trump’s role in announcing the riot on December 19, then turns immediately to Enrique Tarrio’s very hierarchical plan to instill discipline in the Proud Boys that didn’t exist at the December 12 MAGA March (the same trip to DC where Tarrio visited the White House as part of a Latinos for Trump visit).

On December 19, 2020, plans were announced for a protest event in Washington, D.C., on January 6, 2021, which protest would coincide with Congress’s certification of the Electoral College vote.

On or before December 20, 2020, Tarrio approached Donohoe and solicited his interest in joining the leadership of a new chapter of the Proud Boys, called the Ministry of Self Defense (“MOSD”). Donohoe understood from Tarrio that the new chapter would be focused on the planning and execution of national rallies and would consist of hand-selected “rally” boys. Donohoe felt privileged to be included and agreed to participate.

That happened “on or before” December 20, allowing for the possibility that the Proud Boys started to plan before Trump publicly announced the rally. Among other communications that DOJ likely has that the Committee has more limited access to are at least three versions of the Friends of Stone listserv (from Tarrio, Rhodes, and Owen Shroyer’s phones).

My instinct — based on all the evidence that these same people had been the muscle going back to the election — is that that’s where one could find the answer: Meadows, Scavino, Trump, Rudy, but also those who directed existing infrastructure towards January 6. But that’s just instinct. We still really don’t know for sure.

Presidents often adopt the plans of the last person in the room, and that’s probably more true with Trump than many of his predecessors. We know — or believe — that Sidney Powell and Rudy both left. Which means we don’t know who pitched Trump on the plan he ultimately adopted, the one that led directly to an attack on the Capitol.

There absolutely is a slew of evidence that that tweet made the difference, not just with the militias, but with disorganized conspirators and individuals who took Trump’s tweet as an order to make travel plans. It is absolutely the case that after that meeting, Trump took a fateful step (though that has been clear for at least a year). We just don’t know what led him to post that tweet.

Many of those people [Rudy, Meadows, Eastman] wanted pardons totally separate from the January 6 violence and that is important as we look at a different plot Trump’s effort to find a coup plotter would who go farther than Giuliani, his lawyer, Sidney Powell. She would go even farther. So the plan was to take her off the campaign team and try to install her inside the government to get the military to seize voting machines.

[snip]

Trump did back down on that very bad red illegal plan. And by the way, quitting an illegal coup would be a good thing, but this was the military plot: another conspiracy’s prong that hits a dead end. And this is key, because facing that dead end, late that same night of December 18th, Trump turned to the other plot pushed by Eastman and Navarro, posting what is by now an infamous tweet that announces the January 6 rally, beginning, quote, Peter Navarro releases 36-page report alleging election fraud ‘more than sufficient’ to swing victory to Trump. That was the lie Trump needed to build on when he summons the people to DC for the first time. Quote, big protest in DC on January 6th. Will be wild. Now that’s the first time Trump ever told supporters there was a place to come join this fight. And none of this happened in isolation. The evidence of Trump’s criminal intent is worse when all the facts are shown about the plot. Trump began the public operation to sabotage January 6 as a certified vote which was criminal, only after hitting this dead end in the failed plot to have the military help a coup. Now his lawyers warned him of the criminal issues here. Of the criminal intent and actions of that military plot. And he still moved, continuously, from that conspiracy to this one. Now, that’s damning evidence if prosecutors are indicting a broader conspiracy. And the White House aide connecting both plots is Navarro whose aide helped sneak in the military plotters there, then, he’s part of Trump’s January 6th announcement.

[A quote about seizing machines, ignores DHS]

This is something that Rudy Giuliani said would land them all in prison. Rudy Giuliani. He’s already lost his law license. We’ll see what else happens to him. But that is the context as we showed tonight: That when that fails, is the same time, the same night, that Donald Trump comes in and says, alright, I can’t abuse military power. I’m even being told by my most aggressive, lawless lawyers — the kind that he apparently prefers — that that’s not gonna work. So that’s when I bring muscle to January 6. But we have had, in this country, in our minds and apparently at the Justice Department as we reported tonight, a fixation on only looking here [post December 19]. On basically the 6th, or the lead-up to the 6th, or a few days out. And that’s understandable, given what we lived through. We’re human beings and the 6th was one of the worst attacks and one of the worst national security crises America has ever faced, from a domestic threat, let alone an incumbent outgoing President. The point tonight, which we’ve built on evidence, not anything but evidence, is that when you actually go all the way back, when you actually understand how this started, and how many different plots were pursued, thwarted, warned about, and then desperately doubled down upon, that goes to the criminal intent. Let me put it simply. Taken separately, some of these plots can be viewed like a gray area, clumsy plans that didn’t occur or the insurrection that exploded but also ended within one day. I’ll tell you something. The law makes it hard to pin an insurrection on one speech. As it should. But taken together, you have the evidence of this wider criminal conspiracy with criminal intent running across weeks if not more. Remember, in court, prosecutors have to prove criminal intent in a moment, just that you meant to do it. This is weeks of that with lawyers warning these were crimes, especially after the legal door was closed in mid-December when the Electoral College voted — everything after that, when it comes to overturning votes and installing fraudulent electors, that’s that illegal red zone. That’s where you see the evidence of several crimes. And taken together? Well, this evidence suggests the question is no longer whether there are any indictable election offenses here, but how prosecutors would explain a failure to indict and enforce the law and how that does risk letting the close call of this documented and attempted multi-prong coup conspiracy turn into a training exercise that American democracy may not survive.

 

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If You Need to Panic about DOJ’s Investigation into January 6, Panic First about Doug Mastriano

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Yesterday, Rachel Maddow reported the exciting news that Merrick Garland released the same memo that Attorneys General always do during election years.

“As in prior election cycles, I am issuing this memorandum to remind you of the Department’s existing policies with respect to political activities.” Rachel was really upset that Garland integrated the requirement for prior approval that was already the norm, but which Barr put into writing (which arose, in part, out of Michael Horowitz’s IG Report on Carter Page, which showed that not everyone had learned of the investigation into Trump’s flunkies in timely fashion). After months and months of inflammatory commentary suggesting that the decision on whether or not to investigate Trump rested exclusively with Garland (and not, as is the reality, a hierarchy of DOJ personnel, starting with a team of career AUSAs), Rachel wailed that the memo requires Garland to do what everyone has long assumed was true: that Garland would have to approve any investigation into Trump.

In response to her irresponsible sensationalism, people immediately concluded that by releasing the memo, Garland had nixed any further indictments before the election.

One reason I’m certain that’s not true is because after Garland released this memo, DOJ arrested declared candidate for Governor of Michigan, Ryan Kelley. Kelley never entered the Capitol on January 6. But in addition to charging him with entering restricted grounds (that is, entering inside the barricades set up around the Capitol), DOJ also charged him with vandalizing the scaffolding set up in advance of the Inauguration. The charging documents also cited some of his other efforts to undermine democracy in the lead-up and aftermath of the 2020 election.

In October of 2020, KELLEY attended the “American Patriot Council Nationwide Freedom March” in Allendale, Michigan. During that event, KELLEY wore a blue shirt, a black coat, a watch with a red watch band, and aviator sunglasses. Parts of this attire were also worn by KELLEY in photos and videos from the U.S. Capitol grounds on January 6, 2021. KELLEY appears at this event in the image below.

In November of 2020, KELLEY was a featured speaker and introduced by name at a “Stop the Steal” rally at the Michigan Capitol in Lansing. During that event, KELLEY indicated that those attending the rally should stand and fight, with the goal of preventing Democrats from stealing the election.

He gave a speech while wearing a name tag and stated “Covid-19 was made so that they can use the propaganda to control your minds so that you think, if you watch the media, that Joe Biden won this election. We’re not going to buy it. We’re going to stand and fight for America, for Donald Trump. We’re not going to let the Democrats steal this election”.

Kelley was arrested on June 9, technically within the 60 day window in advance of the August 2 primary. But DOJ did arrest the gubernatorial candidate in time for voters to learn of his actions during the insurrection (it even was an issue at a recent debate), without creating last minute news before an election like Jim Comey did against Hillary Clinton in 2016.

Kelley’s not the only one against whom DOJ has taken overt investigative steps in the wake of the memo, either. DOJ seized the phones of a number of high ranking subjects in the fake electors plot, including the Chair of Nevada’s Republican Party, Michael McDonald. Indeed, the likelihood a number of subjects of the fake elector plot would be covered by the DOJ policy may be why the January 6 Committee is finally making an exception regarding their refusal to share interview transcripts for that part of DOJ’s investigation: while they’ve been refusing, the window on pre-election indictments for fake elector plotters is closing.

Besides, all this panic-mongering seems really, really badly targeted.

I’m impatient to have some accountability for Trump and his flunkies, just like everyone else (even if, because I’ve followed the investigation, I know that DOJ is investigating Trump’s flunkies). I think, for the reasons I laid out here, a hypothetical Trump indictment wouldn’t come for some time yet, but I’m also confident that if the investigation isn’t open now or soon, Trump’s campaign roll-out would do nothing to thwart opening an investigation. It would require the same Garland approval that would be obtained in any case. Trump wouldn’t even be affected by the DOJ policy on pre-election actions, because he’s not on the ballot this year.

But there is a key player in January 6, someone known to have been under investigation, for whom the window to prosecute is closing as the election draws near, someone who presents a far more immediate threat to democracy than Trump: Doug Mastriano, the GOP candidate for Governor of Pennsylvania.

Mastriano technically could be charged, just for his actions on January 6. Like some other political figures — in addition to Kelley, Couy Griffin, and key influencers like Owen Shroyer and Brandon Straka (though Straka’s original complaint included civil disorder) — Mastriano appears to have been at the Capitol, inside the barriers, but did not enter the building.

The images, shared with NBC News, appear to show Mastriano holding up his cellphone as rioters in the front of the mob face off with police at the Capitol steps. Reconstructed timelines and other videos filmed nearby show rioters would breach this police line within minutes, ripping away a crowd control rope line and rushing past officers up the stairs. The timelines and videos, including unedited versions, that show Mastriano in the crowd were reviewed by NBC News.

A man who appears to be Doug Mastriano takes photos or video with his cell phone on the steps of the U.S. Capitol on Jan. 6, 2021.
 A man who appears to be Doug Mastriano takes photos or video with his cellphone near the steps of the U.S. Capitol on Jan. 6, 2021.@MichaelCoudrey via Twitter

Online sleuths also identified a video posted by “Stop the Steal” organizer Mike Coudrey on Jan. 6 that appears to show Mastriano taking photos or video with his cellphone as rioters face off with police on the steps of the U.S. Capitol. Coudrey’s tweet celebrated the mob, which he said “broke through 4 layers of security at the Capitol building.

Mastriano’s campaign did not respond to NBC News’ request for comment. Mastriano previously said that he “respected all police lines as I came upon them” and that he never stepped foot on the Capitol stairs. One of his campaign aides, Grant Clarkson, was near the front of the mob, NBC previously reported. There has been no evidence that Clarkson entered the Capitol that day and he has insisted he did not.

Mastriano has had ties with a number of the people charged for more serious roles in the insurrection, most notably Sam Lazar, who was arrested a year ago on charges of civil disorder and assaulting cops.

And perhaps to an even greater extent than some other influencers who were arrested for their presence inside the barricades at the Capitol, Mastriano spent the months leading up to the insurrection laying the foundation for it, actions that might make him susceptible to an obstruction charge. This article describes his key role in sowing The Big Lie, most notably arranging for the quasi-official hearing at which Rudy could spread false claims. Mastriano also spoke at the “Jericho March” on December 12, 2020, which was a key networking event in advance of the insurrection.

As laid out in the SJC Report on the topic, Mastriano also pressured DOJ to intervene to overturn the election. When Trump complained to DOJ that they were ignoring fraud claims on December 27, for example, Mastriano was — along with Jim Jordan and Scott Perry — one of the people whose complaints he directed Jeffrey Rosen to attend to.

Trump twice calls Rosen. During the second call, Rosen conferences in Donoghue, who takes extensive notes on Trump’s claims that the “election has been stolen out from under the American people” and that DOJ is failing to respond. Trump mentions efforts made by Pennsylvania Representative Scott Perry, Ohio Representative Jim Jordan, and Pennsylvania State Senator Doug Mastriano, and asks Rosen and Donoghue to “just say the election was corrupt and leave the rest to me and the Republican Congressmen.” Trump also references Jeffrey Clark and potentially replacing DOJ’s leadership.

Mastriano also paid $3,000 to bus people into the event.

On paper, then, Mastriano is the kind of influencer-organizer that DOJ has been investigating for some time, but he has not yet been charged.

The FBI have carried out investigative steps with regards to Mastriano. A CNN report from last month says he was interviewed last summer (and sat for an interview with the January 6 Committee).

The FBI has been conducting an expansive investigation into the January 6 riot and questioned Mastriano last summer after photos emerged of him on Capitol grounds that day, according to the source familiar with the interview, which has not been previously reported.

Mastriano has not been accused of committing any crimes and cooperated fully with the FBI, according to the source. Asked about Mastriano’s interview, an FBI spokesperson told CNN that the bureau “cannot confirm the existence of an investigation or comment on details.”

The lapsed time since his FBI interview doesn’t mean he won’t be charged; such delays, even longer ones, are common for those arrested for January 6. Plus, Mastriano is someone whose communications, including with Rudy and probably John Eastman and Ali Alexander, have likely shown up in materials seized or subpoenaed by DOJ.

But if DOJ is going to charge Mastriano, they have slightly more than 50 days to do so in order to comply with the DOJ guidelines.

And when I say he poses a more urgent threat to democracy right now than Trump, that’s not just about the impending election. In addition to regressive policies that are typical of the GOP these days, such as a no-exception ban on abortion, he poses an immediate threat to democracy itself. He has publicly committed to attacking democracy itself.

Those concerns are made especially acute in Pennsylvania by the fact that the governor has the unusual authority to directly appoint the secretary of state, who serves as chief elections officer and must sign off on results. If he or she refuses, chaos could follow.

“The biggest risk is a secretary of state just saying, ‘I’m not going to certify the election, despite what the court says and despite what the evidence shows, because I’m concerned about suspicions,’” said Clifford Levine, a Democratic election lawyer in Pennsylvania. “You would start to have a breakdown in the legal system and the whole process.”

Mastriano’s backers appear well aware of the stakes. A video posted to Telegram by election denial activist Ivan Raiklin from Mastriano’s victory party on Tuesday showed the candidate smiling as Raiklin congratulated him on his win and added, with a thumb’s up, “20 electoral votes as well,” a reference to the state’s clout in the electoral college.

“Oh yeahhhh,” Mastriano responded.

Mastriano did not respond to a voice mail or an email sent to a campaign account for media.

But Mastriano told Stephen K. Bannon, a former adviser to Trump who now hosts a podcast popular on the right, that he had already selected the person he would appoint as secretary of state if elected.

“As far as cleaning up the election, I mean, I’m in a good position as governor,” he said in the April 23 appearance on Bannon’s “War Room” podcast. “I have a voting-reform-minded individual who’s been traveling the nation and knows voting reform extremely well. That individual has agreed to be my secretary of state.”

Mastriano has been buying followers from the far-right social media site, Gab. And he has ties to Russian-backed far-right propagandists.

A number of people have said, with no exaggeration, that a Mastriano win would virtually guarantee no Democratic candidate could win the state’s presidential votes in 2024.

If DOJ is going to expand its prosecutions to those who laid the groundwork for January 6, they are going to be charging people like Doug Mastriano. There’s little doubt that Mastriano, as much as anyone who went inside the building on January 6, as much as Trump, was trying to prevent the lawful transfer of power.

Yet DOJ only has seven weeks left to charge Mastriano before DOJ’s election guidelines would prevent that from happening.

If you want to panic, panic first about Mastriano. Because the threat he poses to democracy is far more imminent than the very real threat Trump poses.

Update: Politico has a piece on Mastriano talking about how close it is in PA, and NYT has a piece using Mastriano as illustration of the increasing embrace of conspiracism on the far-right.

Update: This thread from an online researcher tracks Mastriano’s movements around the Capitol on January 6.

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