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Tables Flipped: With Cooperation Agreement, Oath Keeper Jon Schaffer Will Get Protection from US Marshals

As I’ve been suggesting might happen for some time, heavy metal musician Jon Schaffer just pled guilty, the first of any January 6 defendants to plead guilty. While many of the documents pertaining to his plea have not been released yet, his information has. He pled guilty to Obstruction of an Official Proceeding and Entering a Restricted Area with a Deadly Weapon (for the bear spray he sprayed at police). On the Obstruction charge, Schaffer is facing serious enhancements for the bear spray. But with the plea, Schaffer will avoid what was surely going to be an assault charge, as well as inclusion in the Oath Keeper conspiracy. And all that’s before the cooperation he has agreed to provide prosecutors, which should help him cut his criminal exposure significantly, especially as the very first January 6 defendant to plead guilty.

From the sounds of things — prosecutor Ahmed Baset described Schaffer as the “tip of the mob” breaching the building and said he entered at 2:40 — Schaffer will be implicated in the breach of the east entrance to the Capitol, meaning his testimony may implicate everyone who went in with him (likely including all the currently charged Oath Keepers, Joe Biggs, and several other Proud Boys). [Update: Schaffer went in the west door, not the east one, but the timing is still of acute interest, as it means the door Schaffer went in was breached at the same time as the east door.] DOJ might be thinking of naming Schaffer an unindicted co-conspirator on the Oath Keeper conspiracy, which would put all of them on the hook for Schaffer’s violent actions, dramatically increasing their criminal exposure.

In addition, Schaffer’s plea sets an important precedent on several legal issues that will be contested by other defendants, Oath Keeper or not. Those include:

  • Whether bear spray is a deadly weapon (which will affect the men accused of attacking Brian Sicknick and others — like Roberto Minuta — who brought bear spray into the Capitol)
  • Whether the vote count and Mike Pence’s presence in the Capitol made the building a “restricted building” for the purpose of 1752
  • Whether obstruction — normally used for criminal prosecutions — applies to the vote count (this is particularly critical, as it is how DOJ has made participation in the insurrection a felony for the more serious defendants)
  • Whether two enhancements — for violence and significant interference — apply to the obstruction charge

As Judge Amit Mehta noted, this doesn’t preclude litigation in other cases, but both sides agreed that this legal stance applies to the January 6 riot.

Schaffer will be released from jail, meaning he can return to touring as a musician (which was likely one of the big inducements for him to plead).

But the most remarkable thing about this plea agreement comes with the public nature of it. Mehta had thought that DOJ would want to do this in sealed fashion, but Baset was quite clear that DOJ wanted this to be public. That means everyone will know that Schaffer is a key witness against a highly trained militia.

And one of the things Mehta seems to have raised in a closed part of the hearing is that that puts Schaffer at great risk.

So DOJ agreed that Schaffer — who on January 5 was among the Oath Keepers purportedly providing “security” for Roger Stone — will be provided security by US Marshals under DOJ’s witness protection program.

A member of Roger Stone’s “security” detail will for the foreseeable future, then, be provided with “security” by the US government.

Update: Here’s his plea. He signed it Wednesday, which means it’s likely he had a grand jury appearance Friday morning before he allocuted before Judge Mehta. [Fixed my day of the week problems.]

Update: They’ve calculated Schaffer’s base offense level, before reductions for pleading, to be 25, which would represent a sentence of 57-71 months in the sentencing table. If they add Schaffer as an unindicted co-conspirator to the Oath Keeper conspiracy, it would put them on the hook for his violence, even before the conspiracy charge.

Update: I was being a bit loose with my reference to Stone. The Oath Keepers, in which Schaffer has pled to be a member, provides security for Stone. While Schaffer associates with some of the people who did provide security, there’s no evidence he personally did.

Thomas Caldwell’s “Storming the Castle” Ploy Succeeds

Judge Amit Mehta just released Thomas Caldwell to home confinement in the Oath Keeper conspiracy case.

Caldwell’s attorney, David Fischer, made some easily rebuttable arguments about Caldwell’s honesty, which I’ll return to. Fischer also tried to convince Judge Mehta that Caldwell was operating out of a sincere belief that he was defending against Antifa, not arming against the US government; I’ll return to that too (Judge Mehta had no patience for that ploy). While Mehta did come away believing Caldwell had been more cooperative than prosecutors had suggested, that’s not why he released Caldwell.

It’s important background, that in Fischer’s motion to reconsider Caldwell’s detention dismissed several references Caldwell made to “storming” the Capitol as an allusion to the fictional narrative of The Princess Bride.

Some of the lines that the Government cites in its papers are straight from Hollywood. The best example is “storming the castle” and “I’m such an instigator.” These are classic lines from the 1980s classic movie The Princess Bride.

Fischer suggested Caldwell’s own use of the same word everyone else used to describe assaulting the Capitol was just fiction.

The claim is important because the key reason that Caldwell got bailed is because of a feint that Fischer made in his motion for reconsideration. He argued that there is no evidence that Caldwell planned in advance to storm the Capitol.

On January 6th, at the urging of former President Donald J. Trump, hundreds of thousands of disgruntled, patriotic Americans came to Washington to protest what they viewed as an unfair election. Caldwell joined this protest to exercise his First Amendment right, a right he defended for 20 years in military service. Caldwell absolutely denies that he ever planned with members of the Oath Keepers, or any other person or group, to storm the Capitol. Caldwell absolutely denies that he obstructed justice. 3 The word of a 20-year military veteran with no prior criminal record is evidence, and it is strong evidence, of his innocence.

[snip]

In short, despite having an army of federal agents working around the clock intensively investigating for almost three months, the Government has not provided the Court with a confession, witness statement, or physical evidence backing up their claim that any person or group had a premeditated plan to storm the Capitol. Caldwell asks rhetorically: Doesn’t the Court find it odd that the Government hasn’t outlined the specifics of the premeditated plan? What time was the “invasion” scheduled to begin? Who would lead the attack? What was the goal once the planners entered the Capitol?

[snip]

The Government’s fanciful suggestion that right-wing tactical commandos were waiting in the wings to storm the Capitol is one for the ages.

In response to Judge Mehta’s questions about this claim, AUSA Kathryn Rakoczy conceded that the alleged co-conspirators didn’t have hard and fast plans as to what would happen before the event. This was a plan made of “possibilities,” which included the possibility (the facetious excuse offered by Caldwell) that other groups would resort to violence if Vice President Pence threw out the vote and the Oath Keepers would have to respond with force, or that President Trump would invoke the Insurrection Act and the Oath Keepers would come in to institute martial law. As Rakoczy described, they were “watching and waiting to see what leadership did” to achieve the goal of preventing the vote count, which goal the “government submits was unlawful and corrupt.”

They were waiting to see what leadership did. When leadership did what they referred to as “nothing,” they did take matters into their own hands. They were waiting and watching to see what was happening.

So when asked to respond to Caldwell’s misrepresentation that he was charged with conspiring to storm the Capitol, Rakoczy responded that it wasn’t certain they would storm the Capitol; the group was prepared to act, they just weren’t sure how — given the uncertainties of the day — they would act.

Based on that response and his conclusion that Caldwell actually had never entered the Capitol, Judge Mehta ruled that Caldwell was differently situated than the other defendants insofar as the evidence that he participated in the conspiracy (to storm the Capitol, Fischer said) was weaker given that he never did enter the Capitol.

Only later, after Judge Mehta had announced his decision, did Rakoczy point out the problem with this argument: Caldwell is not charged with conspiring to storm the Capitol. As she noted, the language Fischer kept quoting about storming the Capitol came from a background paragraph of the superseding indictment:

23. As described more fully herein, CALDWELL, CROWL, WATKINS, SANDRA PARKER, BENNIE PARKER, YOUNG, STEELE, KELLY MEGGS, and CONNIE MEGGS, planned with each other, and with others known and unknown, to forcibly enter the Capitol on January 6, 2021, and to stop, delay, and hinder the Congressional proceeding occurring that day.

The actual conspiracy as charged was to impede the certification of the Electoral College vote.

24. [… the defendants] did knowingly combine, conspire, confederate, and agree with each other and others known and unknown, to commit an offense against the United States, namely, to corruptly obstruct, influence, and impede an official proceeding, that is, Congress’s certification of the Electoral College vote, and to attempt to do so, in violation of Title 18, United States Code, Section 1512(c)(2).

Purpose of the Conspiracy

25. The purpose of the conspiracy was to stop, delay, and hinder Congress’s certification of the Electoral College vote.

This is a problem I saw going in (though I doubted that Fischer would be able to confuse Mehta as well as he did).

But the results of this hearing, particularly given Rakoczy’s answers, reveal something about the way this conspiracy is charged (and the ones most of the Proud Boy are charged).

They assume the any action conspirators took would be effectuated on Congress, that that was the only eventuality conspirators were planning for.

The conspiracy is all built off an obstruction charge which itself, while valid, is fairly inapt. It likens the counting of the vote to a trial, which legally holds, but doesn’t get at the scope of what co-conspirators (and Trump) were trying to accomplish. The focus — Caldwell’s, as well as those who actually did storm the Capitol — was all on Congress, because that was the next event in question (just as the previous December mob had been focused on the electoral certifications in the states). But the goal was not (just) to stop the certification of the vote count on Congress. The ultimate goal was to ensure that Trump would remain President, via whatever means. And as Rakoczy acknowledged, one possibility that co-conspirators Kelly Meggs and Jessica Watkins believed might happen was that Trump would declare martial law, and the Oath Keepers would become the glorious army to save their fantastic dreams. That would have had the effect of preventing the certification of the electoral vote, but it would have (if successful) been a more direct route to the actual goal of the conspiracy: to keep Trump in power and prevent the lawfully elected President from taking over.

That’s why Fischer’s ploy worked: because all the planning wasn’t primarily about the Capitol. It was primarily about Trump.

This charge is built like it is, I’ve always been convinced, because no one has yet made the commitment to charge seditious conspiracy (ideally in parallel with this conspiracy). The real goal, after all, was to overthrow the democratic system, and impeding the vote count was just one means to achieve that conspiracy. The conspiring that started even before the election was about overthrowing democracy, not just January 6.

This may not be a fatal weakness for these conspiracy charges. Now that prosecutors have seen Fischer work this feint so well, they’ll be better prepared for it from others.

But one reason it worked is because the real goal of the conspiracy — the one that Caldwell’s lawyer all but conceded to today — was to do whatever it took to prevent the lawfully elected President from taking power.

An Inventory of the January 6 Investigation on Merrick Garland’s First Day

Overnight on the day that Merrick Garland got his first briefing on the January 6 investigation, DOJ asked for a 60-day extension of time in the Oath Keepers’s conspiracy case. As part of the motion, they cite what has been done on the investigation so far. That inventory includes:

  • Over 900 search warrants, executed in almost all fifty states and the District of Columbia
  • More than 15,000 hours of surveillance and body-worn camera footage from multiple law enforcement agencies
  • Approximately 1,600 electronic devices
  • The results of hundreds of searches of electronic communication providers
  • Over 210,000 tips, of which a substantial portion include video, photo and social media
  • Over 80,000 reports and 93,000 attachments related to law enforcement interviews of suspects and witnesses and other investigative steps
  • Involvement of 14 law enforcement agencies, including:
    • U.S. Capitol Police
    • DC Metropolitan Police Department
    • FBI
    • DHS
    • Bureau of Alcohol, Tobacco, Firearms and Explosives
    • US Secret Service
    • US Park Police
    • Virginia State Police
    • Arlington County Police Department
    • Prince William County Police Department
    • Maryland State Police
    • Montgomery County Police Department
    • Prince George’s County Police Department

As the filing lays out, the government and the DC Public Defender’s office are trying to set up a system making available the general set of evidence to all defendants, while providing more specific evidence directly to the defendant. Some of that has started in this case.

The government has already provided defense counsel with preliminary discovery, including: arrest paperwork; recordings of custodial interviews, where available; paperwork and photographs relating to premises search warrants; data extracted from several of the defendants’ cellular telephones and social media accounts; some defendants’ hotel records; and some photographs and video recordings, from publicly available sources, of the defendants participating in the alleged offenses.

But most of the defendants in this case have already opposed a continuance, including Donovan Crowl, Kelly and Connie Meggs, Graydon Young, and Thomas Caldwell.

Not only must they be aware that others will get added to the conspiracy, broadening the scope of their potential criminal exposure under the conspiracy. But the government also clearly envisions the potential of more charges (possibly including seditious conspiracy).

Some of the conspiratorial activity being investigated, such as the activity under investigation in this matter, involves a large number of participants. The spectrum of crimes charged and under investigation in connection with the Capitol Attack includes (but is not limited to) trespass, engaging in disruptive or violent conduct in the Capitol or on Capitol grounds, destruction of government property, theft of government property, assaults on federal and local police officers, firearms offenses, civil disorder, obstruction of an official proceeding, possession and use of destructive devices, and conspiracy. [my emphasis]

Given Amit Mehta’s inclinations in any case, he might grant the continuance but put several of the defendants on home detention. We’ll know more about his inclinations at a hearing at 3.

Oath Keepers Learn the Hard Way: Don’t Plan an Insurrection on Facebook

“For every Oath Keeper you see, there are at least two you don’t see.” – email from Oath Keeper head Stewart Rhodes forwarded from Oath Keeper Graydon Young to his sister, Laura Steele, on January 4, 2021

I want to look at filings from the Oath Keepers investigation to show how FBI is juggling to move quickly enough to prevent obvious subjects from obstructing the investigation without tipping off others to the substance of the investigation. The filings confirm that the FBI will get sealed arrest warrants against subjects who are obviously obstructing the investigation, but may not use them right away, so as to obtain more evidence against them and their immediate co-conspirators. The filings also show how hard it is to delete evidence in an age of social media while conspiring with dozens of other co-conspirators.

The investigation from Watkins to Caldwell to the Parkers, Youngs, and Biggs

There’s a story about the Oath Keepers investigation that arises from the nature of the first publicly charged defendants. According to that story, the founder of an Ohio militia affiliated with the Oath Keepers, Jessica Watkins, boasted on Parler about “forcing entry into the Capitol” on the day of the attack. Videos of the Oath Keeper Stack showed up in videos posted within a day of the attack. Then, on January 13, the Ohio Capital Journal posted an interview with Watkins where she described it “the most beautiful thing” until she started hearing glass smashing — which she blamed on an Antifa false flag attack (a subsequent filing suggests Watkins wanted the Oath Keepers to get good press from the attack, threatening to sue some male journalist if he portrayed the Oath Keepers negatively).

That’s the evidence the FBI showed to obtain an arrest warrant on Watkins on January 16.

Meanwhile, as the investigation was closing in on Watkins, her recruit Donovan Crowl did an interview with the New Yorker for a story loaded with more images of coordinated movement from the Oath Keepers. Crowl offered similarly contradictory excuses for his action as Watkins.

On January 17, the FBI tried to conduct an interview with Watkins, only to be told by her partner, Montana Siniff, that she left Ohio on January 14 to stay with her friend and fellow Oath Keeper, “Commander Tom.”

At some point, the FBI obtained information from Facebook — they don’t explain when or on whom it was served, which I’ll return to. The return showed that Caldwell coordinated hotel reservations at the Comfort Inn/Ballston, not just with Watkins, but also others from North Carolina, as well as speaking with Crowl. This content may not have been obtained via Caldwell yet, because Caldwell’s private messages don’t show up in filings until January 19 (alternately they may have delayed that reveal until Caldwell was arrested).

But the FBI used that public Facebook information to obtain a warrant for Crowl on January 17. Watkins and Crowl turned themselves into Urbana, OH police that day, where the FBI took them into custody.

On January 13, the Guardian did a story on Watkins’ use of Zello.

“We are in the main dome right now,” said a female militia member, speaking on Zello, her voice competing with the cacophony of a clash with Capitol police. “We are rocking it. They’re throwing grenades, they’re frickin’ shooting people with paintballs, but we’re in here.”

“God bless and godspeed. Keep going,” said a male voice from a quiet environment.

“Jess, do your shit,” said another. “This is what we fucking lived up for. Everything we fucking trained for.”

The frenzied exchange took place at 2.44pm in a public Zello channel called “STOP THE STEAL J6”, where Trump supporters at home and in Washington DC discussed the riot as it unfolded. Dynamic group conversations like this exemplify why Zello, a smartphone and PC app, has become popular among militias, which have long fetishized military-like communication on analog radio.

On January 19, the government obtained an amended conspiracy complaint against Watkins, Crowl, and Caldwell. It included the following new information:

  • Quotations from the Zello messaging
  • Facebook messaging from Caldwell pictured standing outside the riot calling everyone in Congress a traitor
  • Facebook messages showing planning between Watkins, Crowl, and Caldwell between December 24 and January 8
  • Instructions for making plastic explosives found at Watkins’ house

Of particular interest, the complaint included the first hint that the Oath Keepers had intelligence — shared using Facebook — about the movements of Members of Congress.

On January 6, 2021, while at the Capitol, CALDWELL received the following Facebook message: “All members are in the tunnels under capital seal them in . Turn on gas”. When CALDWELL posted a Facebook message that read, “Inside,” he received the following messages, among others: “Tom take that bitch over”; “Tom all legislators are down in the Tunnels 3floors down”; “Do like we had to do when I was in the core start tearing oit florrs go from top to bottom”; and “Go through back house chamber doors facing N left down hallway down steps.”

Having arrested the two Oath Keepers blabbing to the press and the guy they hid out with, there’s not much more overt sign of the investigation until February 11, when the government submitted filings supporting pre-trial detention for both Watkins and Caldwell.

Arrest affidavits submitted on February 11 and February 12 (but sealed until after February 16) also refer to Watkins’ cell phone returns, including address book information describing Bennie Parker as a recruit, texts between Watkins and Parker coordinating plans for the insurrection and reassuring him the FBI would not prosecute them after the insurrection, and a picture of his wife Sandi Parker. Watkins’ cell phone returns also show a contact for Kelly Meggs in Florida, which she associated in her address book with the Oath Keepers.

Those initially sealed arrest affidavits also rely on surveillance footage and financial records from the Comfort Inn where all the Ohioans  stayed. It shows the Ohioans together in the lobby. It reveals that Kelly Meggs paid for a room that night registered under another suspected Oath Keeper’s name (according to credit card records showing a $302 charge, Meggs apparently stayed at the Hilton Garden Inn the night of January 7). [Update: The indictment clarifies that Meggs paid for two rooms at the Comfort Inn and booked two at the Hilton, of which he paid for one. h/t bb]

The initial affidavit against Kelly and Connie Meggs and Graydon Young and Laura Steele also includes a picture taken — by some unidentified person — from the van from North Carolina.

The same affidavit includes testimony from a witness who interacted with the Oath Keepers on January 6 and was on a text message chain including Young and Steele, who was introduced to them as Gray and Laura and learned they had taken the Metro into DC. It relies on surveillance video from the Metro. It includes returns from Steele and Young’s Google accounts, including Steele’s application to join the Oath Keepers.

It includes location data showing Graydon Young’s phone traveling from Englewood, FL to Thomasville, NC to Springfield, VA, to DC, then back to Thomasville and ultimately, on January 8, back to Englewood. It includes his round trip flight records from Tampa to Greensboro, consistent with the movement of his phone. The affidavit also uses location data to place Steele and the Meggses in a “geographic area that includes the interior of the United States Capitol building.”

It includes subscriber records for Steele, Young, and Kelly Megg’s MeWe accounts, as well as subscriber records for Facebook accounts for everyone. Of particular note, the affidavit used to arrest Young and the others shows advanced legal process for Young, but mostly subscriber information for the others. They also use Young’s Google data to establish probable cause against the Meggs but do not, yet, use it against Young.

It’s likely in the five days between the affidavit and the arrest, more warrants were served for materials on the others.

There wasn’t much added in a February 25 memo supporting Watkins’ pretrial detention — except that aforementioned Watkins text with Stewart Rhodes complaining about media reports making the Oath Keepers look bad (which, because of the timing of the coverage, likely happened almost a week after the insurrection, or later).

If he has anything negative to say about us OATHKEEPERS, I’ll let you know so we can sue harder. Class action style. Oathkeepers are the shit. They rescued cops, WE saved lives and did all the right things. At the end of the day, this guy better not try us. A lawsuit could even put cash in OK coffers. He doesn’t know who he is playing with. I won’t tolerate a defamation of character, mine or the Patriots we served with in DC. Hooah?!

But in a hearing held February 26, prosecutors told Judge Amit Mehta something in an ex parte hearing to support their argument that there really was a Quick Reaction Force outside of DC on the day of the insurrection ready to bring weapons into the Oath Keepers already in DC, which is one of the reasons he denied Watkins’ motion for release.

The earlier investigation into Graydon Young

It took a while for DOJ to unseal all the filings from the other co-conspirators, particularly the long affidavit for the four southerners. But a docket unsealed last week tells another side of that story. On January 15, a tipster identified Graydon Young, one of the Floridians added to the Caldwell and Watkins conspiracy. Based off that tip, the FBI prepared and got authorization for an arrest warrant by January 18. But they didn’t use it, perhaps because FBI was chasing down two false positives based off pictures of Young, as described in the later affidavit (the first of which may have been based off facial recognition).

First, on or around January 14, 2021, after receiving an internet tip and viewing similar photographs and video of Young from the civil unrest on January 6, 2021, an FBI agent drafted an arrest warrant for an individual (Subject-1) other than Young, based on a review of Subject-1’s driver’s license photo and the fact that Subject-1 was affiliated with the Oath Keepers. An FBI agent in Kansas City, Missouri, who was familiar with Subject-1, then determined that Subject-1 was not the individual depicted in the photos at the U.S. Capitol on January 6, 2021. The government did not pursue charges against Subject-1. Second, on or around January 15, 2021, a concerned citizen provided the FBI with a tip that the photograph of Young in the Rotunda was a photograph of Subject-2, who was a co-worker of the concerned citizen in Illinois. On January 18, 2021, SA Wren spoke with the concerned citizen, who stated that Subject-2 had quit the job and moved to Colorado, and “seemed like the type” who would have gone to the Capitol. SA Wren reviewed Subject-2’s driver’s license photo and determined that Subject-2 is not the person depicted in the photographs of Young at the U.S. Capitol.

In other words, FBI was prepared to arrest Young by January 18, within a day of the initial Watkins arrest. But they did not. They kept that arrest warrant sealed while they obtained his location records, travel records (including evidence he drove home from North Carolina rather than flying, and had his sister’s car towed back to North Carolina afterwards), and subscriber information for other social media.

At some point (as noted), FBI obtained Young’s Google account. But on February 11, they used that “solely as evidence against Kelly Meggs. At this time, the government is not seeking to use this email against Young,” suggesting they still needed legal process to use it against him.

Don’t launch an insurrection with a still-active Facebook account

Given that the FBI was ready to arrest Graydon Young on January 18, it’s worth looking more closely at the Facebook evidence in this conspiracy.

The FBI learned on January 15 that Young was probably at the insurrection, had been tagged in planning for the event on January 4, and had attempted to delete his Facebook account on January 7 (it went into effect the next day). Young didn’t delete his related Instagram account until January 13.

At some point, the FBI also learned that Caldwell attempted to unsend messages on January 8, the same day Young shut down his Facebook account.

Nevertheless, Facebook still had Young’s data, including a post from January 6 boasting, “We stormed and got inside.”

The government also obtained highly damning Facebook content from much earlier, including a message he posted to a group, the “War of Northern Aggression,” on November 7. In it, he clearly acknowledges Joe Biden’s victory.

Will this group consider migration to MeWe and Parler? I think censorship is going to get worse with Biden win.

On November 9, he asked again to move from Facebook to MeWe and Parler.

On November 30, he pushed MeWe and Parler again.

I already have MeWe and Parler … waiting for this drama to end before I delete my FB account.

Hey Graydon?!?! The drama for you is just beginning.

Meanwhile, Caldwell didn’t succeed in deleting all his evidence either. As early as January 17, in Crowl’s affidavit, they had a message (it’s unclear whether it’s public or private)

Here is the direct number for Comfort Inn Ballston/Arlington 1-571-397-3955 I strongly recommend you guys get one or two rooms for a night or two. Arrive 5th, depart 7th will work. She says there are five of you including a husband and wife new recruits. This time of year especially you will need to be indoors to set up, etc. Really, press this home, just get somebody to put it on a credit card. Even if you tell the hotel its double occupancy, you can STILL get a couple of people on the floor with bedrolls and the hotel won’t know shit. Paul said he might be able to take one or two in his room as well. I spoke to the hotel last night (actually 2 a.m. this morning) and they still had rooms. This is a good location and would allow us to hunt at night if we wanted to. I don’t know if Stewie has even gotten out his call to arms but it’s a little friggin late. This is one we are doing on our own. We will link up with the north carolina [sic] crew.

The later affidavits include Caldwell Facebook messages sent in November predicting violence.

I am very worried about the future of our country. Once lawyers get involved all of us normal people get screwed. I believe we will have to get violent to stop this, especially the antifa maggots who are sure to come out en masse even if we get the Prez for 4 more years.

On January 6, Caldwell continued to use Facebook, receiving a message informing him,

All members are in the tunnels under capital seal them in. Turn on gas.

And,

Tom all legislators are down in the Tunnels 3floors down

Between Young and Caldwell, Facebook evidence shows that this operation clearly targeted legislators even after they knew Joe Biden had been elected. It turns out that neither of them successfully deleted this Facebook content before the drama really got started.

The delayed reveal

As noted, it took some time for the affidavit for the southern Oath Keepers to be unsealed. In the interim period, the FBI would have been able to investigate the Oath Keeper whose name was on the hotel room Young paid for, and all the other people on the bus on which Young and his sister were pictured. The FBI surely has reviewed any role the War of Norther Aggression Facebook group had in the insurrection. The accounts for which the FBI just had subscriber information on February 11 are probably now being fully exploited (including the WeMe accounts on which they may have been more open about their plotting).

There are still members of The Stack at large, the others on the bus, the group from Mississippi those who provided “security” for Trump’s closest associates. We don’t know where the next Oath Keepers to be arrested are. We do know where the FBI was, 17 days ago.

Timeline of Oath Keeper conspiracy

January 4: Young travels from Englewood, FL to Thomasville, NC. Young tagged in planning messaging for the attack.

January 5: Young travels from Thomasville to Springfield, VA, then heads to DC for the evening.

January 6: Young travels into DC, then back to Thomasville that night. Watkins posts to Parler and Caldwell posts to Facebook. Young posts, “we stormed and got inside” on Facebook.

January 7: Young deleted Facebook content going back to March 2019 (per Facebook record it goes into effect on January 8).

January 8: Caldwell unsends Facebook messages continuing evidence. Young returns to Englewood. Young writes an email saying that his “team leader” during the insurrection was “OK Gator 1” with Kelly Meggs’ phone number.

January 9: Watkins texts Bennie Parker telling him not to worry about the FBI investigating them.

January 11: Young has a vehicle registered to Steele’s address towed from a location near his home to Steele’s home in NC. Young deletes his Instagram account.

January 13: Watkins interview in Ohio Capital Journal. Guardian story on Watkins’ use of Zello. Young closes Instagram account.

January 14: Donovan Crowl story in New Yorker. Watkins and Crowl travel to Caldwell’s property in VA; he gives them OpSec tips for the drive. Bennie Parker texts Watkins asking if she put Sandi “out there” in the Capitol. FBI chases a false positive for Young on an Oath Keeper who lives in Kansas City, MO.

January 15: A tipster who has known Young for 35 years identified Young in an image published by NBC, informs the FBI that on January 4, other people had tagged Young in a discussion about traveling to DC. The tipster further revealed that on January 7, Young deleted his Facebook content going back to March 2019, then deleted the whole thing. FBI chases a false positive for Young to someone in CO.

January 16: Arrest warrant for Watkins.

January 17: Search of Watkins’ house discovers gear and other military items. Interview of her partner reveals she has left to stay with a friend, Commander Tom, and provides a phone registered to him at his VA property as the way to reach Watkins. Arrest warrant for Crowl. Search of a location where Crowl stays finds his tactical vest. Arrest warrant for Caldwell. Both Watkins and Crowl turn themselves in to the Urbana Police, where the FBI takes them into custody.

January 18: First arrest warrant for Graydon Young.

January 19: Caldwell, Crowl arrested by FBI, and Watkins arrested. Amended criminal complaint makes conspiracy charges against Watkins, Crowl, and Caldwell more formal. Search of Caldwell’s property finds Death List targeting election official from a different, a Gadsden flag signed by Crowl and Watkins, and a sales invoice for a weapon designed to look like a phone.

Janaury 21: Stewart Rhodes declares Biden’s “not a constitutional government.” Kelly Meggs closes his Facebook account.

January 27: Indictment for Watkins, Crowl, and Caldwell.

January 29: NYT does video analysis showing the movements of the Oath Keepers from the Ellipse to the Capitol.

February 11: Counterterrorism prosecutors Justin Sher and Alexandra Hughes join team. Motions for pre-trial detention for both Watkins and Caldwell. Sealed complaint filed against Kelly and Connie Meggs, Graydon Young, and Laura Steele.

February 12: Government moves for protective order against the original conspirators; Caldwell objects. Sealed complaint filed against Bennie and Sandi Parker.

February 16: Graydon Young arrested.

February 17: The Meggs and Laura Steele arrested.

February 18: The Parkers arrested.

February 23: Thomas Caldwell appeals detention.

February 26: Amit Mehta grants government motion to detain Jessica Watkins.

Update: I clarified that the email quoted at the top is from Stewart Rhodes, not Graydon Young.

Beryl Howell Takes an Early Swipe at the Trump Made-Me-Do-It Defense and Other Detention Standards

When DC Chief Judge Beryl Howell ordered Richard Barnett detained pending trial, the only record of her judgement — beyond her strong language at the detention hearing — was the order itself, including a paragraph about Barnett’s, “brazen conduct.” When she ordered Rachel Powell released to home detention, she released no opinion.

But when she ordered Proud Boy William Chrestman detained until trial, she wrote a 32-page opinion explaining her thinking. With regards to Chrestman — who threatened a cop, carried an axe-handle as weapon, and organized a cell of people who worked together to prevent police from expelling insurrectionists — Howell judged that his pre-trial detention wasn’t a close call: he poses a danger to the nation.

Defendant’s conduct on January 6 and blatant disregard for the law clearly show that he is a serious danger to the community and the nation, and that no condition or combination of conditions can be imposed that will ensure his compliance with the law pending trial in this matter.

But as one after another DC District judge struggles with the difficult pre-trial detention questions and just days after Judge Amit Mehta noted that some of these legal questions will pertain to a significant number of January 6 decisions, Howell used her decision on Chrestman to address three issues that have been and will continue to be litigated by insurrectionists:

  • Standards for review of magistrate decisions from other districts
  • The distinctions between different roles in the insurrection
  • The claim that Trump ordered or sanctioned insurrection

Magistrate decisions from other districts

As she did with a number of other defendants, after a magistrate in Kansas granted Chrestman pre-trial release, Judge Howell granted an emergency request from prosecutors staying that order for another review. And in at least one case where DC judges reviewed a magistrate’s decision (Dominic Pezzola), the defendant has tried to limit the scope of the review.

In most cases, January 6 defendants will have their cases initially reviewed by a magistrate local to their homes, only to be prosecuted in the DC District.

Perhaps to establish both the primacy and the scope of these District Court orders, in her opinion Howell reviews the requirements for granting a hearing on detention (both Jessica Watkins’ and Thomas Caldwell’s attorneys had argued their charged crimes did not merit a review).

As generally pertinent to charged offenses arising out of the January 6, 2021 assault on the Capitol, a detention hearing must be held on the government’s motion when the charged offense involves:

1. “[A] crime of violence,” id. § 3142(f)(1)(A), which is defined broadly as an offense having as an element the attempted, threatened, or actual use of physical force against a person or property of another, or a felony offense that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense, id. § 3156(a)(4)(A)–(B);

2. “[A]n offense listed in section 2332b(g)(5)(B) for which a maximum term of imprisonment of 10 years or more is prescribed,” id. § 3142(f)(1)(A), which “list” includes “a violation of . . . [18 U.S.C. §] 1361 (relating to government property or contracts),” id. § 2332b(g)(5)(B)(i);4

3. “[A]ny felony that is not otherwise a crime of violence that involves . . . the possession or use of a firearm or destructive device . . . or any other dangerous weapon[,]” id. § 3142(f)(1)(E);

4. “[A] serious risk that such person will flee,” id. § 3142(f)(2)(A); or

5. “[A] serious risk that such person will obstruct or attempt to obstruct justice, or threaten, injure, or intimidate, or attempt to threaten, injure, or intimidate, a prospective witness or juror,” id. § 3142(f)(2)(B).

A subset of the types of offenses requiring a detention hearing triggers a rebuttable presumption “that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community if the judicial officer finds that there is probable cause to believe that the person committed” that subset of offenses. Id. § 3142(e)(3). As pertinent to charged offenses arising out of the January 6, 2021 assault on the Capitol, that subset of offenses includes “an offense listed in section 2332b(g)(5)(B) of title 18, United States Code, for which a maximum term of imprisonment of 10 years or more is prescribed.” Id. § 3142(e)(3)(C).

4 18 U.S.C. § 2332b(g)(5) provides a definition for “the term ‘Federal crime of terrorism,’” when the offense is “a violation of” an enumerated list of Federal offenses set out in § 2332b(g)(5)(i)–(iv) and the offense “is calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct,” id. § 2332b(g)(5)(A). While individuals involved in the January 6, 2021 assault on the Capitol expressed publicly the intent to disrupt a government function in certifying the results of the 2020 Presidential Election and to coerce such disruption by breaching the Capitol, to date, to the knowledge of this Judge, no person charged in connection with the assault on the Capitol has been charged with a “Federal crime of terrorism,” under chapter 113B of title 18, United States Code, but only with separate, predicate enumerated offenses, such as violation of 18 U.S.C. § 1361 (relating to government property or contracts).

Howell then reaffirms that when conducting such reviews, District Court judges conduct a de novo review (Dominic Pezzola’s attorney, for example, asked the District judge for a more limited review).

[B]oth the BRA and the Federal Magistrates Act, 28 U.S.C. § 636, support the conclusion, reached by every circuit to have considered the question, that a district court reviews a magistrate judge’s release or detention order de novo.

[snip]

First, the BRA vests the authority to review and ultimately to “determine[]” a motion for review of a pretrial release or detention order in a “judge of a court having original jurisdiction over the offense.” 18 U.S.C. § 3145. Even when reviewing an order issued under § 3142, then, the district court exercises its original jurisdiction over the case as a whole, not appellate jurisdiction over the magistrate judge’s release or detention order.

Thus in the Chrestman case and in the hundred or so detention motions that will come, Howell lays out, the DC District judge will — if the government requests a review under the available offenses — decide the detention question.

Distinctions between different roles in the insurrection

Howell then turns to the difficult question of presiding over the detention reviews for hundreds of defendants involved in an unprecedented crime. Before assessing the question with respect to Chrestman, she addresses the question more generally:

The BRA, of course, requires a reviewing court to assess the specific conduct of each defendant, but the varying results in these cases raise the natural question, given the undeniably traumatic events of January 6, of the standard against which a particular defendant’s actions on that day should be evaluated. Before evaluating the nature and circumstances of defendant’s specific conduct, then, consideration of the differentiating factors that warrant pretrial detention of certain defendants facing criminal liability for their participation in the mob and pretrial release of others is helpful.

She lays out the kind of things judges might consider (all but one of which happen to work against Chrestman, but which provide useful guidelines for others). This analysis covers three pages, but the questions she asks (I’ve changed the order slightly) are:

  • Was the defendant charged with misdemeanor or felony offenses?
  • Did the defendant remain on the Capitol grounds or breach the building?
  • Did the defendant engage in planning before arriving at the Capitol, for example by obtaining weapons or gear?
  • Did the defendant carry or use a dangerous weapon?
  • Did the defendant coordinate with other participants before, during, or after the riot?
  • Did the defendant assume a formal or de facto leadership role?
  • Did the defendant injure or attempt to injure others?
  • Did the defendant damage or attempt to damage federal property?
  • Did the defendant threaten federal officers or law enforcement?
  • Did the defendant specifically promote the disruption of the electoral vote?

These questions aren’t surprising. Similar questions (excepting the first) seem to guide the government’s charging decisions. Still, as Howell says explicitly, they offer a “useful framework” to help contextualize each defendant’s actions.

Using these guidelines, she assesses that Chrestman’s actions pose a particularly grave threat to the country.

The nature and circumstances of defendant’s offenses evince a clear disregard for the law, concerted and deliberate efforts to undermine law enforcement, and an apparent willingness to take coordinated, pre-planned, and egregious actions to achieve his unlawful aims, all of which indicate that he poses a danger to the community. This first factor weighs heavily in favor of detention.

Without relying on the framework of terrorism (though she describes Chrestman as “terrorizing elected officials”), Howell places the danger in Chrestman’s pre-planning and coordination to undermine government.

Defenses claiming to be following Trump’s orders

As I noted, in his bid for pre-trial release, Chrestman suggested that he believed he was operating with Trump’s approval.

To prefigure how those offenses relate to the likelihood of Mr. Chrestman succeeding on pretrial release, we must start long before January 6.

It is an astounding thing to imagine storming the United States Capitol with sticks and flags and bear spray, arrayed against armed and highly trained law enforcement. Only someone who thought they had an official endorsement would even attempt such a thing. And a Proud Boy who had been paying attention would very much believe he did. They watched as their “pro-America, pro-capitalism and pro-Trump” rhetorical strategy “allowed the Proud Boys to gain entry into the Republican mainstream.”11 They watched as law enforcement attacked Black Lives Matter and anti-fascism protestors, but escorted Proud Boys and their allies to safety.12 They watched as their leader, Enrique Tarrio, was named Florida state director of Latinos for Trump.13 They watched the Trump campaign, “well aware of the organized participation of Proud Boys rallies merging into Trump events. They don’t care.”14 They watched when then-President Trump, given an opportunity to disavow the Proud Boys, instead told them to “stand back and stand by.”15 They understood that phrase as “a call to arms and preparedness. It suggests that these groups, who are eager to do violence in any case, have the implicit approval of the state.”16 Having seen enough, the Proud Boys (and many others who heard the same message)17 acted on January 6.

In the guise of addressing Chrestman’s claim that he has a viable defense, even in spite of the overwhelming evidence against him, Howell takes an early swipe at a defense many, if not most, defendants are offering: Trump invited or ordered the insurrectionists to take the illegal actions.

Howell admits she’s reviewing the particular form of the argument Chrestman presented before it has been sufficiently briefed (without also noting that one after another defendant is already trying some version of it).

This theory has not been fully briefed by the parties, and the question of former President Trump’s responsibility, legal, moral, or otherwise, for the events of January 6, 2021 is not before this Court.

Defendant presents this defense only for the limited purpose of counterbalancing the overwhelming weight of the evidence against him.

Nevertheless, Howell reviews the precedents Chrestman invokes to suggest that he might be excused for following Trump’s directions by distinguishing — first of all — between believing that a government official was describing the law accurately and, as happened here, believing that a government official could bless a “waiver of law.”

Nonetheless, in order to measure properly defendant’s potential privilege against liability against the government’s proffer, some exploration of the proposed due process defense is necessary.

Defendant invokes a novel iteration of a complete defense to criminal liability that arises when an individual criminally prosecuted for an offense reasonably relied on statements made by a government official charged with “interpreting, administering, or enforcing the law defining the offense” and those statements actively misled the individual to believe that his or her conduct was legal. United States v. Cox, 906 F.3d 1170, 1191 (10th Cir. 2018) (internal quotation marks and citations omitted) (outlining the elements of the defense). “The defense . . . is based on fundamental fairness concerns of the Due Process Clause,” United States v. Spires, 79 F.3d 464, 466 (5th Cir. 1996), and thus relies on an assessment of whether the challenged prosecution “offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental,” Patterson v. New York, 432 U.S. 197, 202 (1977) (internal quotation marks and citation omitted), because of the lack of notice and fairness to the charged defendant. The Supreme Court recognized this defense, sometimes called “entrapment by estoppel,” in three cases, Raley v. Ohio, 360 U.S. 423 (1959), Cox v. Louisiana, 379 U.S. 559 (1965), and United States v. Pennsylvania Industrial Chemical Corp. (“PICCO”), 411 U.S. 655 (1973). Examination of these decisions shows first, that entrapment by estoppel is a narrowly tailored defense, available in very limited circumstances, and second, that this defense does not excuse defendant’s conduct in the instant case.

[snip]

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

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

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

Moreover, the instructions Trump purportedly gave cannot be deemed part of his job. Howell argues that under both the Take Care Clause and the Constitution, Trump cannot sanction illegal or unconstitutional acts.

No American President holds the power to sanction unlawful actions because this would make a farce of the rule of law. Just as the Supreme Court made clear in Cox that no Chief of Police could sanction “murder[] or robbery,” 379 U.S. at 569, notwithstanding this position of authority, no President may unilaterally abrogate criminal laws duly enacted by Congress as they apply to a subgroup of his most vehement supporters. Accepting that premise, even for the limited purpose of immunizing defendant and others similarly situated from criminal liability, would require this Court to accept that the President may prospectively shield whomever he pleases from prosecution simply by advising them that their conduct is lawful, in dereliction of his constitutional obligation to “take Care that the Laws be faithfully executed.”

[snip]

[A] President cannot, within the confines of his constitutional authority, prevent the constitutionally mandated certification of the results of a Presidential Election or encourage others to do so on his behalf, nor can he direct an assault on the coequal Legislative branch of government. Were a President to attempt to condone such conduct, he would act ultra vires and thus without the force of his constitutional authority.

This gets close to the argument I keep making, that a key step Trump took that day (and riled up the mob when it didn’t work) was to give another Constitutional officer, Mike Pence, an unconstitutional order. And I was surprised that Howell didn’t mention pardons, a means by which Trump, at least, has forgiven the illegal obstruction of justice done for his behalf. Similarly, I would expect more focus on the separation of powers.

Still, it’s a framework for responding to what already is a sea of defendants claiming they can’t be held accountable for their crimes because Donald Trump invited or ordered them to commit the crimes. And does so within a broader framework that may provide DC District judges some way to approach the detention challenges with some measure of consistency.

Dominic Pezzola Guesses Wrong, Gets Labeled a Terrorist for His Troubles

As I’ve been following, the detention challenges for January 6 defendants have raised real questions about how the government and the courts will treat the event. The government and Jessica Watkins have provided additional briefing on whether her actions merit a rebuttable presumption of detention; they will revisit these issues today in a hearing before Judge Amit Mehta.

As I’ve noted, the Watkins case is close because the people with whom she conspired with did not, themselves, commit the acts of violence the government is using to argue for pre-trial detention.

Not so Dominic Pezzola, the Proud Boy who was the first to break a window to enter the Capitol. Earlier this week, he filed a motion to review bail arguing, in significant part, that the witness on whose testimony the government relied to establish intent of future violent crimes was the guy who recruited him into the Proud Boys, someone Pezzola claims bragged of macing a cop during the insurrection.

Pezzola guessed wrong about the witness, the government says. As far as the government knows, there was no tie between this witness and Pezzola prior to January 5 (which suggests this is someone Pezzola met the night before the attack).

The defendant speculates that W-1 is a “cooperating witness” with deeper ties to the Proud Boys than the defendant. The defense is incorrect. W-1 has not been charged with a crime in connection with the events of January 6, 2021, and the government is unaware of any affiliation between W-1 and the Proud Boys or any indication that W-1 knew the defendant prior to January 5, 2021.

But, having been given a chance to respond to Pezzola’s bid for release, the government has solidified the argument they’re making in other cases, in which they have less direct evidence than they have against Pezzola.

In Magistrate Robin Meriweather’s initial judgement denying Pezzola bail, she judged that no conditions of bail would eliminate the public safety risk posed by Pezzola. But she found that Pezzola had presented sufficient evidence to overcome a rebuttable presumption of detention, and specifically found that his family ties to Rochester, NY, made him less of a flight risk.

When Pezzola requested a review of Meriweather’s decision, he argued that Judge Timothy Kelly should accept Meriweather’s rulings in his favor, but revisit her judgment that he posed a threat to society.

That’s not how it works, noted prosecutor Eric Kennerson.

Although he acknowledges that this Court’s review is de novo, the defendant asks this Court not to reconsider certain findings made by the Magistrate Judge, including her finding that the presumption in favor of detention was rebutted and her decision not to address the government’s arguments regarding the defendant’s risk of flight. ECF No. 19 at 1-2. Because this Court’s review is de novo across the board, the government asks the Court to apply the statutory presumption of detention, which we submit has not been rebutted for the reasons stated below, and find by a preponderance of the evidence that the defendant is a serious risk of flight.

He used his response to a request a reconsideration of those earlier decisions relying, in part, on the indictment that was obtained on the same day he had submitted his earlier motion for detention, in which Kennerson noted that, “The government acknowledges that the defendant is not charged with these offenses at the time this memorandum is submitted,” presumably knowing that Pezzola would be charged with such crimes within hours.

Relying on the indictment, Kennerson argued that Pezzola committed two crimes — felony destruction of government property (for breaking the window of the Capitol) and robbery of US Government property (for stealing a cop’s riot shield, which he used to break the window) — that constitute crimes of violence bringing a presumption of detention, and then labeled the conduct a crime of terrorism.

Felony destruction of property, under the facts as laid out above, is a federal crime of terrorism. Title 18, U.S.C., Section 2332b(g)(5), defines “federal crime of terrorism” as an offense that “is calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct” and is included in an enumerated list of statutes, which includes § 1361. See 18 U.S.C. §§ 2332b(g)(5)(A) & (B). The Grand Jury found probable cause in Count Seven of the Indictment to believe that the defendant intended to obstruct an official proceeding by committing, among other things, acts of civil disorder and breaking a window. The defendant has conceded that his conduct was calculated to influence or affect the conduct of government—specifically the certification of the Electoral College vote—and his actions show that he participated in doing so by intimidation and/or coercion. Moreover, because § 1361 is listed in § 2332b(g)(5)(B), there is a rebuttable presumption that no conditions or combination of conditions can assure community safety or the defendant’s appearance. See 18 U.S.C. § 3142(e)(3)(B).

Felony destruction of government property is also a crime of violence. For purposes of the bail statute, as relevant to these offenses, a crime of violence is defined as “an offense that has an element of the use, attempted use, or threatened use of physical force against the person or property of another,” if that crime is punishable by ten years or more in prison. See 18 U.S.C. § 3142(f)(1)(A) & 16. Section 1361 of Title 18 of the U.S. Code meets those requirements. It is punishable by ten years if the property damage was greater than $1,000, and its elements include the use of physical force against the property of another. See United States v. Khatallah, 316 F. Supp. 2d 207, 213 (D.D.C. 2018) (Cooper, J.) (holding that destruction of government property under a substantially similar statute, 18 U.S.C. § 1363, satisfies a substantially similar elements clause statute to qualify as a crime of violence).

Robbery of U.S. Government Property is also a crime of violence. See United States v. Alomante-Nunez, 963 F.3d 58, 67 (1st Cir. 2020), citing Stokeling v. United States 139 S. Ct. 544 (2019) (holding that common-law robbery meets the elements test of a different, but substantially similar statute, to qualify as a crime of violence). But see United States v. Bell, 158 F. Supp. 3d 906, 919 (N.D. Cal. 2016) (holding that § 2112 does not meet the elements test, although that opinion was issued prior to the Supreme Court’s decision in Stokeling).

Kennerson’s filing repeatedly tied the violence to the admitted ends of delaying the vote certification, relying among other things on a citation to Pezzola’s own filing.

The defendant concedes in his motion that smoked the victory cigar because “he considered the objective achieved, stopping the certification of the election pursuant to the instructions of the then President.” ECF No. 19 at 4.

[snip]

The defense’s admission that the defendant’s objective that day was to stop the certification of the Electoral College vote does not help his position. In essence, he took an active role at the front of a mob that displaced Congress, in an attempt to stop that body from certifying the result of a Presidential election. As Judge Lamberth recently found, “[s]uch conduct threatens the Republic itself.” See United States v. Munchel, et. al., No. 21-cr-118 (RCL), ECF No. 24 at 11. See also United States v. Meggs, No. 5:21-mj-1036-PRL (S.D. Fla.) (Lammens, M.J.), ECF No. 17, at 4 (“The [January 6] attack wasn’t just one on an entire branch of our government (including a member of the executive branch), but it was an attack on the very foundation of our democracy.”)

[snip]

The defendant’s actions show that as recently as a month and a half ago, he was willing to partake in and take advantage of violence to achieve his political ends. The Court can have no assurance that he will refrain from doing so again, despite his alleged disavowal of the Proud Boys since he has been detained.

The cases for detention against the January 6 defendants are all over the map, with more evidence of direct violence in some cases and more evidence of coordination with a terrorist group in others. As the government tries to detain members of the latter — including Watkins and her co-conspirator Thomas Caldwell — they have inched closer to using the terrorism label to describe what happened on the day.

In Pezzola’s case, they’re doing so with a defendant who actions played a singularly important role in the success of the insurrection, someone who directly engaged in violence, and someone who has already admitted that the goal was to intimidate Congress.

All these other cases will be influenced by (and in some cases, will build on) these earlier seminal cases. By asking for reconsideration of bail, Pezzola gave the government an opportunity to present the evidence they had not yet made public earlier in this prosecution.

The SEKRIT Drones in Hillary’s [Staffers’] Emails

From the start of the Hillary Clinton email scandal, I’ve maintained that there are real reasons to be critical of her use of a private email.

There are big governance reasons to be concerned that Clinton has been in control of all her official emails, including that the emails will get destroyed or hidden from FOIA and Congressional requests.

But there’s also the question of whether whatever sensitive communications she had — potentially including classified information — were safe on a server run out of her Chappaqua home. While the State Department’s own emails have been notoriously unreliable — they have been compromised both in the WikiLeaks leak and in persistent hacks in recent years– if foreign adversaries learned of her private server (and remember, it’s very hard to hide metadata from someone who is looking), her communications would be even easier to compromise.

[snip]

[T]he system is also broken because it has been permitted to become a tool the powerful use to control their own image (and thereby accrue more power). After the years-long witch hunts under her spouse’s Presidency, Clinton might be forgiven for wanting to maintain complete control over her own communications (except for that whole bit about democratic accountability). But she is of course doing it to serve her own Presidential aspirations.

Not only are there real governance reasons it was wrong, but it was an own-goal given that she knew Republicans would pounce on anything that hints of corruption (even though most GOP presidential candidates have done the same thing). In the grand scheme of things, however, I’m most interested in fixing the email and accountability problem, because it has been a recurrent problem since Poppy Bush tried to destroy some PROFs notes to cover up the Iran-Contra scandal.

That said, much — though not all — of the reporting on it took a decidedly irresponsible turn when Intelligence Community Inspector General Charles McCullough revealed that two emails from the emails on Hillary’s server had been determined to contain Top Secret information. Such reporting was led by former NSA official John Schindler whose piece in the Daily Beast bore this headline.

Screen Shot 2015-08-14 at 8.40.08 AM

Schindler might be excused for a headline editors gave his piece to drive clicks and scandal — and indeed, in some parts of his article he was more disciplined in specifying whose emails these were — but he nevertheless used the formulation “Clinton’s emails” when claiming she had satellite-derived information on her servers.

Most seriously, the Inspector General assessed that Clinton’s emails included information that was highly classified—yet mislabeled as unclassified. Worse, the information in question should have been classified up to the level of “TOP SECRET//SI//TK//NOFORN,” according to the Inspector General’s report.

This left the suggestion that as Secretary of State Hillary Clinton sat down with some SIGINT reporting, transcribed it, and then sent it off to her staffers. That, in spite of repeated clarifications from official sources that Hillary was in no way a target of the FBI inquiry into this.

Dianne Feinstein clarified the point yesterday: the issue is that Hillary received emails that had information claimed to be classified, not that she sent them.

There has been a lot of press coverage recently of allegations regarding Secretary Clinton’s email. Unfortunately, much of the coverage has missed key points.

First, none of the emails alleged to contain classified information were written by Secretary Clinton.

The questions are whether she received emails with classified information in them, and if so, whether information in those emails should have been classified in the first place. Those questions have yet to be answered. However, it is clear that Secretary Clinton did not write emails containing classified information.

Again, nothing obviates all the blame that Hillary chose to rely on an unclassified email system, but it’s one thing if Hillary were sending Top Secret information across an unprotected server, and yet another thing if she received emails that might have been derived from Top Secret information, but were not marked as such or even evidently sourced from Top Secret information. Or even — given that some of the people and agencies in question aren’t entirely trustworthy when they make claims of secrecy — that publicly available information was deemed Top Secret.

At least according to the AP (in a story sourced to US officials, so potentially some people in DiFi’s immediate vicinity), that’s what happened.

The two emails on Hillary Rodham Clinton’s private server that an auditor deemed “top secret” include a discussion of a news article detailing a U.S. drone operation and a separate conversation that could point back to highly classified material in an improper manner or merely reflect information collected independently, U.S. officials who have reviewed the correspondence told The Associated Press.

[snip]

The drone exchange, the officials said, begins with a copy of a news article that discusses the CIA drone program that targets terrorists in Pakistan and elsewhere. While a secret program, it is well-known and often reported on. The copy makes reference to classified information, and a Clinton adviser follows up by dancing around a top secret in a way that could possibly be inferred as confirmation, they said. Several officials, however, described this claim as tenuous.

But a second email reviewed by Charles McCullough, the intelligence community inspector general, appears more suspect. Nothing in the message is “lifted” from classified documents, the officials said, though they differed on where the information in it was sourced. Some said it improperly points back to highly classified material, while others countered that it was a classic case of what the government calls “parallel reporting” — different people knowing the same thing through different means.

This is CIA claiming secrecy for its drone operations!!! The ongoing FOIAs about CIA’s acknowledged role in the drone war are evidence that even independent appellate judges don’t buy CIA’s claims that their drone activities are secret. Just yesterday, in fact, DC Judge Amit Mehta ordered DOJ to provide Jason Leopold more information about its legal analysis on CIA drone-killing Anwar al-Awlaki, information the CIA had claimed was classified. Indeed, Martha Lutz, the woman who likely reviewed the emails turned over, is fairly notorious for claiming things are classified that pretty obviously aren’t. It’s her job!

I’m all in favor of doing something to ensure all people in power don’t hide their official business on hidden email servers — right now, almost all people in power do do that.

But those who take CIA’s claims of drone secrecy seriously should be mocked, as should those who deliberately obscure the difference between receiving an unmarked email with information claimed to be classified and those who transcribe information from a properly marked classified document.