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David Mish’s Silence on Ashli Babbitt’s Last Words

I have followed, with great interest, how January 6 prosecutors have used the misdemeanor pleas to establish their larger case about January 6. In this post, I noted that Eliel Rosa’s sworn statement of offense describes how obvious it was for someone approaching the Capitol at the same time Ethan Nordean was that cops didn’t want them there.

11. In front of them, Mr. Rosa observed a large group of individuals shouting and Mr. Rosa heard people with megaphones shouting, “Go, Go, Go.” Mr. Rosa heard bangs and acknowledged the smell and presence of pepper spray that had been deployed. Because of these observations, he knew law enforcement was present and in front of the advancing group.

In this post, I collected a bunch of language from statements of offense that either validated a defendant’s own recording of the riot or described some of the violence.

That’s why I was particularly interested in the statement of offense of David Mish. Mish was a witness to Ashli Babbitt’s death. His arrest affidavit had described that he called Metropolitan Police Department on January 7 and offered information in conjunction with Babbitt’s death.

12. On approximately January 7, 2021, David Mish contacted the Washington, D.C. Metropolitan Police Department (“MPD”) stating that he had information to provide about the fatal shooting of Ashli Babbitt, who was shot inside the U.S. Capitol during the civil unrest. On January 8, 2020, Detective John Hendrick of the MPD contacted MISH by phone and recorded the ensuing conversation regarding the Babbitt shooting. MISH stated that he, together with several others, had entered the United States Capitol on January 6, 2021. MISH asked “[b]ecause I entered the Capitol Building are you guys gonna take me to jail? I didn’t break anything. . . . I went in, yes.” Detective Hendrick clarified with MISH that his sole investigatory focus was on the shooting and that he was not involved in investigating MISH’s actions inside the United States Capitol. Detective Hendrick explained that investigation of demonstrators’ actions inside was being handled by other agencies and that he could not say whether or not MISH would be arrested. MISH subsequently stated that “I came up the stairs where the scaffolding was. Um, I was with a group of guys. . . . [E]verybody was yelling ‘breach the building.’”

He told Detective Hendrick that he heard — and recorded — Babbitt telling the police blocking her entry into the Speaker’s Lobby that the mob she was with were “not gonna stop.”

14. In his interview with Detective Hendrick, MISH stated that a group of several individuals went into a bathroom adjacent to the Speaker’s Lobby and he objected when one of the group broke a mirror, stating, “we’re trying to get to the politicians because we wanna voice our . . . we wanna voice to ‘em.” MISH described Babbitt saying to the officer who was at the doorway, “Just open the door. They’re not gonna stop,” or words to that effect, referring to the crowd gathered at the doorway. MISH further stated that he had used his cell phone to record some of the activity that occurred within the United States Capitol. MISH told the detective, “from my video you can tell that I was one of the, I was the first group of people to hit that doorway,” referring again to the locked doorway leading to the Speaker’s Lobby that the rioters were attempting to breach. MISH stated he would provide the video footage to MPD Detective Hendrick and subsequently e-mailed a link to a Google Drive folder. To date, neither MPD nor the FBI has been able to access the content of the link. [my emphasis]

But none of this shows up in Mish’s statement of offense. There’s just one mention of the Babbitt shooting.

While inside the U.S. Capitol, the defendant entered a bathroom near the Speaker’s Lobby and came out to hear the fatal shooting of Ashli Babbitt.

And the Statement of Offense focuses on evidence implicating Mish, not collecting details about Babbitt’s killing.

On approximately January 7, 2021, the defendant contacted the Metropolitan Police Department (“MPD”) stating that he had information to provide about the fatal shooting of Ashli Babbitt inside the U.S. Capitol. On January 8, 2021, a detective with the MPD contacted the defendant by phone. During that conversation, the defendant stated that he had entered the U.S. Capitol on January 6, 2021. The defendant also described the clothing he was wearing, which matched the clothing the defendant was seen wearing on video footage taken inside the U.S. Capitol.

Mish’s plea agreement includes the boilerplate language on cooperation addressing his social media, not anything he witnessed (or claimed to have witnessed) at the Capitol.

There’s no conclusion we might draw from this — aside from, in this case, pertaining to one of the most sensitive parts of the ongoing investigation, DOJ did not include information they otherwise might.

Did Paul Gosar Take Actions on Behalf of Donald Trump that Contributed to Ashli Babbitt’s Death?

In this post, I noted that just nine minutes before accused January 6 defendant Brady Knowlton entered the Capitol at 2:35, Donald Trump called Tommy Tuberville. Later in the day, Rudy Giuliani would ask Tuberville to delay the vote certification by challenging more states. If that’s what Trump asked Tuberville to do on that first call and if Tuberville complied with Trump’s request, he and the rest of his colleagues might still have been in the Senate when Knowlton and others started to swarm in.

Instead, Tuberville told the President he had to go because the Senators were being evacuated, following shortly on the evacuation of Mike Pence just minutes before Trump called.

We only know of Trump’s call to Tuberville because Trump — and later Rudy Giuliani — dialed the wrong number, calling Mike Lee’s phone instead of Tuberville’s.

We don’t know who else Trump was calling at the time, though in recent days Jim Jordan has admitted he spoke to Trump that day, while dodging wildly about when that happened and what Trump said.

What we do know is that someone on the other side of the Capitol was doing exactly what Trump later asked Tuberville to do: Paul Gosar, who coordinated closely on all aspects of the insurrection with Trump, was raising more challenges to the vote.

That’s of particular interest because the NYT, in their superb documentary on the chronology of the day (starting at 25:40), suggests that the chain of events that led to Ashli Babbitt’s death started with Jim McGovern’s decision to get through one more person’s challenge of the vote, Gosar’s.

By 2:30 PM the Senate evacuation is well underway. But, even though a lockdown was called over 15 minutes ago, the House is still in session.

Gosar: I do not accept Arizona’s electors as certified.

Representative Jim McGovern is chairing. He told us he wanted to finish hearing objections to the election results by Paul Gosar. House staff and security gave McGovern the all-clear to continue. It’s a delay that likely cost someone their life.

Suddenly, staff are now pointing at the Chamber’s doors.

Please be advised there are masks under your seats. Please grab a mask and place it in your lap and be prepared to don your mask in the event we have a breach.

Just outside, a mob of a hundred or more is baying to get into them.

Well, we came this far, what do you say?

Drag ’em out.

Tell fucking Pelosi we’re coming for her.

These rioters pay little heed to the thin line of police.

They’re going. I would just stop.

And in moments, are pushing against doors into the House.

Stop the Steal! Stop the Steal!

On the other side, Capitol police erect a barricade and draw their guns. On the floor, lawmakers are evacuating to the rear of the chamber, where in a few minutes a rioter will be shot and killed. Part of the mob inside now peels off in that direction to find a different way in. Ashli Babbitt, an Air Force veteran and a QAnon supporter is among the first to arrive at the rear of the House.

There they are! What the fuck!

They see the lawmakers escaping. That lobby might have been clear had the House been evacuated sooner. But the rioters now become incensed. Zachary Alam, a Trump supporter punches in the glass panels with his bare fists.

Stop the Steal! Open the door. Break it down! Break it down!

Police are stretched extremely thin. Just three officers and a security officer stand guard. None are wearing riot gear and they keep their weapons holstered. When a team of heavily armed police now arrives, the three officers step aside.

Go! Let’s go! Get this thing!

This creates a crucial gap that allows rioters to smash in the glass. [A warning: what happens next is graphic.] It’s 2:44PM and behind the door a police officer draws his handgun.

There’s a gun. There’s a gun! He’s got a gun! He’s got a gun!

Babbitt vaults into the window. And the officer shoots her once. It’s a fatal wound, through the upper chest.

Gosar’s challenge delayed the evacuation of the House, meaning that rioters spied the lawmakers evacuating through the Speaker’s lobby as they arrived. NYT suggests that viewing the lawmakers in such close proximity inflamed the rioters, leading Zach Alam to punch through the door and Babbitt to leap through it in an attempt to chase after them, in turn leading to an officer’s decision to use lethal force to protect fleeing Members of Congress.

One minute after Babbitt was shot, surveillance footage caught Knowlton entering the Senate Chamber at 2:45. Had Trump convinced Tuberville to stay, the same kind of confrontation might have happened in the Senate Chamber, too (and video shows that Mitt Romney, already a target for Trump’s supporters, narrowly avoided running into the mob as well).

If a Tuberville delay might have orchestrated a similar clash on the Senate side, it raises questions whether Trump was involved in the Gosar delay.

As it happens, Gosar is among the most active purveyors of the martyr myth surrounding Ashli Babbitt, including tweeting out this image that seemes almost necrophiliac in composition, with its focus on his crotch and her name.

But the fact that Trump was actively calling Members of Congress well after rioters stormed the building, and the fact that Gosar caused what the NYT deemed the fatal delay on the House side, it’s possible that he and Trump had a bigger role in ensuring that Babbitt jumped through that window to chase Gosar and his colleagues. It’s possible Gosar created that delay because Trump asked him to.

CNN reports that the January 6 commission is weighing whether to obtain White House call logs (Trump made the call to Tuberville from the main White House line).

The select committee investigating the January 6 insurrection is weighing whether to pursue call logs from the Trump White House on the day of the riot, a move that could present a potentially thorny dilemma for President Joe Biden who would ultimately have to determine whether the records should be covered by executive privilege or qualify as essential evidence for the ongoing probe.

The committee has been engaged in ongoing discussions with the Biden administration about its plans for the investigation as it has taken the lead role in examining all things related to January 6 and prepares to issue its first round of subpoenas, two sources familiar with the matter told CNN.
Phone records from former President Donald Trump’s White House will likely not be among the first subpoena targets as a source familiar with the matter told CNN that the committee has not broached the topic during preliminary discussions with the Executive Branch. But the panel is actively considering the possibility of pursuing those records and other relevant documents that could raise additional executive privilege questions, the source added.
Members of the committee, including GOP Rep. Liz Cheney, have made clear investigators must “get to every piece of information that matters” in order to piece together a detailed understanding of what Trump and his closest allies were doing that day.

Liz Cheney may well be thinking of tracking Trump’s calls to Kevin McCarthy. But the import of Gosar’s delay to the shooting of Ashli Babbitt by itself presents a good reason to subpoena those records.

“Darkened Plazas with Throngs of People:” The Government Debunks the Portland – January 6 Comparisons

The government just responded to January 6 defendant Garret Miller’s claim of selective prosecution. Miller is charged with assault and civil disorder, obstruction, and — for threats against AOC and the officer who shot Ashli Babbit — interstate threats.

On January 15, 2021, MILLER admitted in a Facebook chat that he is “happy to make death threats so I been just off the rails tonight lol,” and is “happy to be banned now [from Twitter].” When asked whether the police know his name, he responded, “[I]t might be time for me to …. Be hard to locate.”

Last month, Miller filed two motions claiming selective prosecution (for discovery, to dismiss). He argued that Portland defendants were treated differently than he is being treated, because many of the Portland cases involving (some but not all of) the same crimes he was charged with are being dismissed or resulting in plea deals.

UndersignedCounsel has undertaken an extensive review of pleadingsfiled on PACER, press releases issued by the United States Attorney’s Office for the District of Oregon, and various news accounts as they relate to the Portland riots. From that review, it appearsthat approximately 74 persons were charged with criminal offenses arising out of the riots. 5 Of those 74 persons, to date, approximately 30 persons have had their cases dismissed (often with prejudice) upon motion of the government, 12 persons appear to have been offered dismissals upon completing a pre-trial diversion program, and at least 3 persons have been allowed by the government to plead guilty to significantly reduced charges.6

Most of the Portland rioters were charged with a violation of 18 U.S.C. § 231(a)(3) (civil disorder) and/or a violation of 18 U.S.C. § 111 (assault on a federal officer). These are the same charges brought against Mr. Miller in Counts One, Two and Four of the Superseding Indictment based upon his participation in the Washington, D.C. riots.

Given the right wing efforts to compare the two events, this was an inevitable legal challenge. And as such, it will be one of the few times where the government is asked to compare their prosecutorial decisions between the two events.

The government responded to the motion for discovery today. It argues, generally, that Miller hasn’t presented any similarly situated people.

Miller fails this showing. A selective-prosecution claim requires the defendant to identify “similarly situated” individuals who “have not been prosecuted,” Irish People, Inc., 684 F.2d at 946 (citation omitted), and Miller has pointed to no such individual. He instead cites 45 cases (from a sample of 74) where the government charged the defendant with federal offenses arising from riots around the federal courthouse in Portland, Oregon, and where the government subsequently dismissed the charges, entered a deferred-prosecution agreement, or acceded to the defendant’s guilty plea on reduced charges. Doc. 32, at 7.2

2 Miller’s motion further references pleadings from 31 of these cases where, in his view, the defendant’s conduct in Portland mirrored his actions on January 6, 2021. Doc. 32, at 8-16; see also Doc. 32-1 (Attachments 1-31).

This is how most selective prosecution claims die: the precedents require coming in with proof of an almost exactly similar case getting differently treated, and then proving it was differently treated for some kind of bias.

It then points out the obvious: Miller is not claiming selective prosecution, he’s claiming that the outcomes of those prosecutions are different than his is likely to be.

This comparison fails, first and foremost, because the government actually charged nearly all defendants in the listed Oregon cases with civil-disorder or assault offenses. See Doc. 32-1 (Attachments 2-31). Miller has accordingly shown no disparate treatment in the government’s charging approaches. He instead focuses on the manner in which the government ultimately resolved the Oregon cases, and contrasts it with, in his opinion, the “one-sided and draconian plea agreement offer” that the government recently transmitted to him. Doc. 32, at 6. This presentation—which compares the government’s initial plea offer to him with the government’s final resolution in 45 hand-picked Oregon cases—“falls woefully short of demonstrating a consistent pattern of unequal administration of the law.”3 United States v. Bernal-Rojas, 933 F.2d 97, 99 (1st Cir. 1991). In fact, the government’s initial plea offer here rebuts any inference that that it has “refused to plea bargain with [Miller], yet regularly reached agreements with otherwise similarly situated defendants.” Ibid.

3 Miller’s motion notably omits reference to the remaining 29 Oregon cases in his survey, presumably because the government’s litigation decisions in those cases do not conform to his inference of selective treatment.

You can’t claim selective prosecution when those other defendants were also charged, especially not after you, yourself, have been offered the same “significantly reduced charges” you’re complaining Portland protestors got.

But then the government goes into specifics about what distinguishes Miller: generally, there’s far better evidence against Miller, and, specifically, he committed other crimes as well.

More fundamentally, the 45 Oregon cases serve as improper “comparator[s]” because those defendants and Miller are not similarly situated. Stone, 394 F. Supp. 3d at 31. Miller unlawfully entered the U.S. Capitol and resisted the law enforcement officers who tried to move him. Doc. 16, at 4. He did so while elected lawmakers and the Vice President of the United States were present in the building and attempting to certify the results of the 2020 Presidential Election in accordance with Article II of the Constitution. Id. at 2-3. And he committed a host of federal offenses attendant to this riot, including threatening to kill a Congresswoman and a USCP officer. Id. at 5-6. All this was captured on video and Miller’s social-media posts. See 4/1/21 Hr’g Tr. 19:14-15 (“[T]he evidence against Mr. Miller is strong.”). Contrast that with the 45 Oregon defendants, who—despite committing serious offenses—never entered the federal courthouse structure, impeded a congressional proceeding, or targeted a specific federal official or officer for assassination. Additionally, the government’s evidence in those cases often relied on officer recollections (e.g., identifying the particular offender on a darkened plaza with throngs of people) that could be challenged at trial—rather than video and well-documented incriminating statements available in this case. These situational and evidentiary differences represent “distinguishable legitimate prosecutorial factors that might justify making different prosecutorial decisions” in Miller’s case. Branch Ministries, 211 F.3d at 145 (quoting United States v. Hastings, 126 F.3d 310, 315 (4th Cir. 1997)); see also Price v. U.S. Dep’t of Justice, 865 F.3d 676, 681 (D.C. Cir. 2017) (observing that a prosecutor may legitimately consider “concerns such as rehabilitation, allocation of criminal justice resources, the strength of the evidence against the defendant, and the extent of a defendant’s cooperation” in plea negotiations) (brackets and citation omitted)

More importantly (and a point that Trevor McFadden made when Couy Griffin tried to claim he was being picked on because he got charged with the same trespassing charge virtually everyone else got charged with), the government notes that Miller hasn’t been treated differently than any of the 500 others who’ve been charged in January 6.

[H]e is one of more than 500 defendants already charged for participating in the riot, and he does not suggest that he has been treated differently than any of those similarly situated defendants.

This is a response to a guy who, though his assault charges are not as serious as the assaults charged against others, then went on Twitter and bragged about committing crimes, and then threatened several people, including a Congressperson. Other January 6 defendants might raise more interesting selective prosecution challenges, which will likely fail for the general comments laid out about the quality of evidence involved. But this challenge was doomed from the start. Miller’s alleged crimes were so well documented — on camera and in his own words — that he was never the person to bring this challenge.

More importantly, the government raises one big reason why the January 6 defendants will be prosecuted and some Portland defendants will not (setting aside the 29 cases Miller tried to pretend didn’t exist), even assuming their alleged crimes are just as bad: because there weren’t tens of thousands of others filming their actions, because they didn’t try to occupy a building full of CCTV, and because they didn’t brag about their crimes after the fact.

This may not end the comparisons between January 6 and Portland. But it does lay out for the court very practical reasons why throwing the book at January 6 defendants is easier to do than Portland defendants: because January 6 defendants committed alleged crimes in bright spaces covered by CCTV and then went on social media and bragged about doing so, whereas many Portland defendants did so in “darkened plazas.”

The Crimes of Violence Ashli Babbitt’s Mob Allegedly Committed

In the Oversight Hearing on January 6 the other day, Paul Gosar suggested that Ashli Babbitt, who was shot while jumping through the last door protecting House members, had been executed.

Paul Gosar: Do you know who executed Ashli Babbitt? … The Capitol Police officer that did that shooting, Ashli Babb — appeared to be hiding, lying in wait, and he gave no warning before killing her.

As it happens, the day after Gosar made these comments, yet another insurrectionist who was standing with Babbitt when she was killed, Kurt Peterson, was arrested in Abraham Lincoln’s birthplace of Hodgenville, KY. According to his arrest warrant, prior to the insurrection, Peterson had accused Democratic lawmakers of treason that should be penalized with death. Peterson claimed to have been at the insurrection with three former Special Forces guys, all in their sixties.

After the insurrection, on January 10, Peterson posted an account on Facebook almost certainly intended to minimize his actions. He claimed, for example, to have entered through a back door that had been opened, and further claimed that when he entered, he told people not to hurt anyone or anything. (He recorded this on voice recognition software so the bracketed corrections are my own.)

When at the back door that we were at open[ed] and there and there were no police to restrain the crowd many people entered at that time. I stood at the door and told everyone that we were not there to hurt anybody or damage anything but as a show of solidarity to right the wrongs of the past election.

In fact, a video cited in his arrest warrant shows someone the government alleges to be him breaking an exterior window to the Capitol screaming, “This is our house. Let us in.”

Peterson is accused of breaking that window, which cost $2,700 to repair. Causing more than $1,000 of damage under 18 U.S.C. §1361 can (and has been invoked to, in this investigation) carry a terrorism enhancement under 18 U.S.C. §2332(b)(g)(5). While it’s unlikely the government will do so with Peterson (they have done so primarily with militia members), given his politicized threats of violence in advance of the insurrection, Peterson could be charged with terrorism for breaking that window.

In the same self-serving account of the day, Peterson gave this account of witnessing Ashli Babbitt’s death.

I did stop men from trying to break down the large wooden doors to the house chamber. Then I saw chairs being brought into the corridor going to the speaker’s lobby. They also grabbed a large sign with a heavy metal base stating no photography. I pushed into the corridor yelling for them to stop trying to break through the doors into the speaker’s lobby. The woman who was shot used the leg of a chair to hit a glass panel on in the door. There were numerous police officers in the stair tower and hallway that I was in.

Before I could get to her the shot rang out from behind the doors in the speaker’s lobby through the glass which shattered hitting many [police] officers and people there. It was a young man in a suit who was supposedly a bodyguard for Chuck [S]chumer.

The bullet hit the woman in the neck which caused her to fall backwards [im]mediately. It could have hit numerous [police] officers that were there. Non lethal force could have been use[d] with out the lethal shot that was made by this body guard in the speaker’s lobby.

I had my 1st aid [gear] with me and asked numerous times to be allowed to render 1st aid to this woman. I was told that they were waiting for the fire department to [respond] and they would not let me give her 1st aid. She died on the floor within 10 minutes of the shot being made.

On the John Sullivan video, there’s no sound of Peterson warning anyone. Rather, there are cries of “Break it down!” with multiple calls before the shot that there was a gun just behind the door the mob was threatening to break down. Everyone in the front line, including Babbitt, should have heard warnings about, if not seen, the gun carefully aimed at the mobsters at the door.

Had non-lethal force been used, the mob might have become more inflamed than they already did. Indeed, many January 6 defendants excuse their behavior, including multiple people accused of assault, as retaliation to the use of non-lethal force.

Peterson suggests that police attending to Babbitt weren’t already giving her First Aid even as they were trying to clear the mob. It appears that another of the rioters, someone with a camera, responded even more quickly than Peterson, along with some of the cops. It is true that Peterson fumbled in his chest as if grabbing for gear. It’s also true that even before that, police were yelling at him to clear out so first responders could get to her. Another video shows that even more closely — as a long line of rioters were clearing a path, Peterson kept talking to the cops.

If the government’s accusations are true, one of the people accusing cops was, himself, dramatically understating his own involvement that day, including his alleged assault on the Capitol that could be (but has not) charged as terrorism.

Breaking down the door

But Peterson is not the only one. While DOJ has thus far charged only a relative handful of people who made up the mob screaming “Break it down!” who were present when Babbitt died, those present range from people accused of trespass to others whose damage to the Capitol could be charged with a terrorism enhancement.

Zach Alam: Zach Alam was the most determined of several men who broke the glass in the door through which Babbitt was trying to enter. Like Peterson, he is accused of damaging the building and obstructing the vote count. In addition, he is charged with assaulting police and civil disorder. A filing opposing his pre-trial release describes his action of the day as “agitated” and rightly notes he stood out among the mob during multiple confrontations with police (including one minutes earlier at the doors to the House Chamber). The video from the Speaker’s Lobby door shows him punching and then kicking the door, then using Christopher Grider’s helmet to hit the panes.

Alam went on the run after January 6 because — as he told a family member — he didn’t want to go back to jail again (he has some recent arrests in DC). During this period on the lam, Alam used at least one assumed name, stolen license plates, and false identification.

Lawfully obtained records show that the defendant has provided multiple false names to service providers, including at least one false name – “Zachary Studabaker” – for services since the events of January 6, 2021.

In addition, according to the government’s information, the defendant was at the time of his arrest driving a vehicle that he had purchased around September 2020 but never registered, and for which the defendant had used multiple license plates, including in recent months. These include a Washington, D.C. license plate, found inside the defendant’s vehicle in Pennsylvania, which was reported stolen in 2018 by an individual who indicated that the front license plate was taken off his vehicle while parked in Northwest D.C. D.C. traffic cameras captured a black Chevy truck matching the description of the defendant’s vehicle bearing this license plate as recently as January 4, 2021. Moreover, when agents located the defendant at the motel in Pennsylvania, they observed the defendant’s black Chevy truck parked outside and noted that it bore Pennsylvania license plates for a Mazda vehicle.

Upon arrest, moreover, the defendant had multiple identification cards in his wallet, including a D.C. driver’s license and a D.C. identification card for one male, a Permanent Resident card for a second male, and University student identification card for a female. Among the items agents seized from the defendant’s motel room nightstand, moreover, were two mobile phones – a Verizon flip phone as well as an iPhone.

Per the same filing, Pennsylvania state authorities are also investigating Alam in conjunction with the January 29, 2021 burglary of an antique store.

This is the kind of defendant whose violence Babbitt was part of. Had Babbitt survived, she might have been on the hook for abetting Alam’s actions at the Speaker’s Lobby.

Chad Jones: Along with Alam, Chad Jones helped to break the panes of the Speaker’s Lobby door. In his case, he hit the window with a flag pole holding a wrapped up Trump flag. Jones was charged with resisting officers and civil disorder on top of the damage to the door.

Christopher Grider: Like Alam, Christopher Grider ran to the Speaker’s Lobby after being turned back at the House Chamber. Like Alam, he is charged helping to break through the Speaker’s Lobby doors through which Babbitt jumped. He handed Alam his own helmet, which Alam used to continue beating on the doors. Even after handing Alam the helmet, Grider allegedly pushed and kicked on the doors himself.

Grider backed away from the door when people started to call out about the gun. But like Peterson, he didn’t leave the scene to let officers respond.

Grider is charged for the destruction to the door, obstruction, and trespassing.

Assault

Brian Bingham: Brian Bingham was arrested June 22 in Alabama (which is neither of the states in which he was known to be living in his arrest warrant, Florida and New Jersey). He had been IDed by people who knew him from the Army with days after the insurrection and posted this photo from minutes after Babbitt’s death to his Facebook account (it’s unclear from the arrest warrant how Bingham’s attempts to shut down his Facebook account failed; possibly they obtained a preservation order).

Bingham appears to have been loitering around the East door as if knowing it would open before it did.

Minutes after Babbitt’s shooting, Bingham got in a tussle with two cops trying to expel him (the best footage of which was captured from another rioter’s phone, which may explain the delay in arresting him).

He yelled at them,

“You won’t hurt ANTIFA, but you’ll murder innocent girls!” “Where do you want me to move? Push me again!”

He bragged about the interaction later in the day.

Individual-5: Are you ok?

BINGHAM: I got to manhandl[e] 5 cops and live to tell

Individual-5: Lol… All of this does not surprise me! Stay safe. Trump2020

Bingham is not charged with obstructing the vote (which is surprising for a number of reasons, but may be consistent with an approach of undercharging those present at Babbitt’s death). But he is charged for the interaction with police.

Obstruction

Alex Sheppard: Like many others, Alex Sheppard ran from the stand-off at the House Chamber to the Speaker’s Lobby door, where he was picked up on Sullivan’s video. Presumably because he explained on social media he was driving from Ohio to DC to protest the RIGGED election, he was also charged with obstruction.

Trespass

Most of the others who directly witnessed Babbitt’s death have been charged with trespass, even though several badgered cops in ways that has gotten others charged with civil disorder or took affirmative steps to halt the vote count that has gotten others charged with obstruction.

Thomas Baranyi: Unlike some others, Thomas Baranyi (who was standing just behind her when she died) admitted that Babbitt died while attempting to breach a heavily guarded door.

We had stormed into the chambers inside and there was a young lady who rushed through the windows. A number of police and Secret Service were saying get down, get out of the way. She didn’t heed the call and as we kind of raced up to try to grab people and pull them back, they shot her in the neck, and she fell back on me.

Like many of the people at the door of the Speaker’s Lobby, he had recently been part of a mob that tried to storm the House side itself, only to try the Speaker’s Lobby next. Baranyi is charged with misdemeanor trespassing.

Ryan Bennett: Bennett was shouting “Break it down” while live-streaming the event as Babbitt was shot.

In Live Video 2, shot from inside the Capitol Building, at approximately the 1:40 minute mark, Bennett seemingly yells “no!” in the direction of a banging noise. In Live Video 4, Bennett seemingly yells “no destruction!” at approximately the 0:40 second mark when someone is seen kicking a door. However, in Live Video 3, Bennett seemingly chants “break it down!” along with the crowd at approximately the 2:47 and 3:54 minute marks. Based on my knowledge of the investigation and the events at the Capitol building, I believe the “break it down” chant was in relation to a door located in the Speaker’s Lobby that was barricaded by USCP and where a woman was later shot. A gunshot can be heard at approximately the 2:42 minute mark of Live Video 4.

Though he wore a Proud Boys hat the day of the riot, which was found when the FBI searched his home, he was charged only with misdemeanor trespass.

Phillip Bromley: According to his arrest affidavit, Bromley witnessed the shooting, and then appeared in a video posted to Parler describing it and stating he was 8 feet away.

In his narrative of events on Video 1, BROMLEY states: “listen…everybody needs to know the truth.” BROMLEY proceeds to describe how he “breached the right side,” “went in,” and “came to two large glass doors.” When he reached the doors, BROMLEY continues by stating he was talking with SWAT officers and reminding them “of their oath,” at which time “a gunshot went off” and a woman was “shot her in the neck.” BROMLEY continues by stating it “did not look like a survivable wound” and that “she [the woman who was shot] was eight feet in front of me on a line.” BROMLEY further describes the clothing he observed the woman to be wearing when she was shot and states “they shot her and she is dead.”

He was charged with misdemeanor trespass.

David Mish: David Mish called cops himself, on January 7, to describe what he knew about Babbitt’s shooting.

According to Mish, Babbitt was telling the cops to open the door before she died.

On approximately January 7, 2021, David Mish contacted the Washington, D.C. Metropolitan Police Department (“MPD”) stating that he had information to provide about the fatal shooting of Ashli Babbitt, who was shot inside the U.S. Capitol during the civil unrest. On January 8, 2020, Detective John Hendrick of the MPD contacted MISH by phone and recorded the ensuing conversation regarding the Babbitt shooting. MISH stated that he, together with several others, had entered the United States Capitol on January 6, 2021. MISH asked “[b]ecause I entered the Capitol Building are you guys gonna take me to jail? I didn’t break anything. . . . I went in, yes.”

[snip]

In his interview with Detective Hendrick, MISH stated that a group of several individuals went into a bathroom adjacent to the Speaker’s Lobby and he objected when one of the group broke a mirror, stating, “we’re trying to get to the politicians because we wanna voice our . . . we wanna voice to ‘em.” MISH described Babbitt saying to the officer who was at the doorway, “Just open the door. They’re not gonna stop,” or words to that effect, referring to the crowd gathered at the doorway. MISH further stated that he had used his cell phone to record some of the activity that occurred within the United States Capitol. MISH told the detective, “from my video you can tell that I was one of the, I was the first group of people to hit that doorway,” referring again to the locked doorway leading to the Speaker’s Lobby that the rioters were attempting to breach.

That said, perhaps because he reached out to cops himself, perhaps because he claims to have tried to talk others out of damaging the Capitol, DOJ only charged Mish with misdemeanor trespass.

The videographers

Brian McCreary: Brian McCreary self-reported his presence in the riot by sharing video he had taken of the day, including from the Babbitt shooting.

After taking this picture; I decided to leave the building. Walking around the building, found a place to take a nice overhead shot of the crowd. Shortly after I made my way there and managed to take one clip of the crowd; people broke into that very side – so I followed them to see what they were doing. -Clip 20210106_144223 Following said crowd. -Clip 20210106_144434 Crowd breaks glass to Speakers Library, hear a shot fired. -Clip 20210106_144544 Crowd begins a game of telephone with Shot and killed a girl over here. At that point; I decided to leave the site. Walked to parking garage; jumped in my car and drove home. Im now just noticing that I am limited to 4 uploads; I will call and follow-up to provide the rest.

Perhaps because he reentered the building after leaving once, the government charged him with obstruction as well as trespassing.

Sam Montoya: Like John Sullivan, Infowar’s Sam Montoya’s video leads up to the Babbitt shooting. Like John Sullivan, Montoya eggs on the crowd as he films it. “We have had enough! We’re not gonna take your fucking vaccines! We’re not gonna take all your bullshit! The people are rising up!” But unlike Sullivan (and perhaps because of his tie to an actual media outlet), Montoya was charged only with misdemeanor trespass.

John Earle Sullivan: John Sullivan, whose name came up in texts between his brother and Rudy Giuliani, is the most enigmatic of January 6 defendants. Banned by lefty activists as a provocateur in the months leading up to the insurrection, Sullivan showed up on January 6 and caught key confrontations on video, while he could be heard egging on rioters in his own recording. At first, he was charged with trespass and civil disorder. His first indictment added obstruction and abetting. A second indictment enhanced his charges for carrying a knife during the protest (which he repeatedly asserted on his own video), false statements for denying it to the FBI, and a forfeiture allegation tied to the $90K he made by selling his video of the day (including Babbitt’s shooting). While Sullivan has been given a damage estimate in discovery — possibly tied to a window he seems to describe himself breaking in an office — he has not yet been charged for doing that damage.

The defendant approaches a window and states, “We did this shit. We took this shit.” The defendant also appears to break a window and says, “I broke it. My bad, my apologies. Well they already broke a window, so, you know, I didn’t know I hit it that hard. No one got that on camera.”

Sullivan used his knife — which the government claims he showed publicly in the mob before the House Chamber — both in that mob and later the Speaker’s Lobby to get others to let him up near the front of the mob.

In the moments before Babbitt’s shooting, Sullivan was, just as Babbitt was, cajoling the police to step away from their posts.

After Babbitt’s death, according to the government’s support of seizure of Sullivan’s funds, Sullivan repeatedly boasted both of riling up the mob and of having video he could — and in fact did — monetize.

The defendant also spoke to someone on speakerphone, stating, “I brought my megaphone to instigate shit. I was like, guys we’re going inside, we’re fucking shit up…. I’m gonna make these Trump supporters f—all this shit up…. But I mean you’ll see. I have it all, I have everything, everything on camera, everything I just told you, and I mean everything. Trust me when I say my footage is worth like a million of dollars, millions of dollars. I’m holding on to that shit.”

So while Sullivan has not been charged for breaking a window — which if he were, would make a fifth person present who could be charged with a terrorism enhancement — he was charged with wielding a knife, lying about it, and inciting those around him to riot.

Update, June 24: I’ve added Bingham.

DOJ Moves to Label John Sullivan a Professional Provocateur

Yesterday, the government released a superseding indictment for John Earle Sullivan, the guy who filmed video of the insurrection and then sold it to CNN and other media outlets. In addition to adding two crimes for his possession of a knife he boasted of having in his own video but then allegedly lied to the FBI about, the government moved to seize almost $90,000 in forfeiture. The move is an aggressive step that may be justifiable for Sullivan, but has implications for the five or so other propagandists arrested as part of the riot.

Sullivan was first charged, with civil disorder and trespassing, on January 13, after several FBI interviews. His arrest affidavit described how, repeatedly during the video he filmed of the riot, he made comments egging on the rioters. At the moment he caught Ashli Babbitt’s shooting on film, he had pushed himself to the front of that mob by calling out that he had a knife.

When the government first indicted Sullivan on February 3, the added obstruction and abetting charges to the civil disorder and trespass charges. That happened at virtually the same time the government moved to revoke his bail, based off several violations of the limits imposed on his use of social media. Sullivan responded by arguing that all that media contact was his job; his lawyer even provided evidence of the funds CNN have paid him to obtain his video of the insurrection. In response, Sullivan remained on bail with more explicit limits to his Internet access.

The one public discovery notice provided to Sullivan so far includes:

  • Earlier publications showing his efforts as a provocateur, including “Let’s start a riot” and “How to Take Down a Monument”
  • His criminal arrest record that includes association with past outbreaks of violence at protests
  • An interview he did on Infowars after the riot
  • Subpoenas to CenturyLink and Beehive Broadband, suggesting they were tracking traffic on Sullivan’s website

Then things went quiet in his case until, on May 7, his lawyer filed a motion to get funds in a Utah bank released he said had been seized without warning. It argued that Sullivan is entitled to a hearing at which he can contest that he committed a crime and the funds being seized came from the crime.

Accordingly, the federal courts have held that when the government restrains a criminal defendant’s assets before trial on the assertion that they may be subject to forfeiture, due process requires that the defendant be afforded a post-deprivation, pretrial hearing to challenge the restraint. If certain minimal conditions are satisfied, “[t]he wholesale use of…forfeiture proceedings [should cause] grave concern when the Government has clearly focused its law enforcement energies and resources upon a person and attempts to restrain his property….” United States v. $39,000 in Canadian Currency.” 801 F.2d 1210, 1219 n.7 (10th Cir. 1986).

The United States Supreme Court has made clear that pretrial seizure, pursuant to 21 U.S.C. Sec. 853 (f) requires two probable cause findings: (1) that the defendant committed an offense permitting forfeiture and (2) that the property at issue has the requisite connection to that crime.” Kaley v. United States, 134 S. Ct 1090,1095 (2014).

At the outset, defendant notes that he needs the funds in the seized bank account in order to pay his rent and household necessities. Additionally, the proceeds of the seized bank account are not the product of criminal activity alleged in the indictment.

Thus the new indictment, I guess.

The indictment ties the forfeiture not to Sullivan’s civil disorder charge, which would seem to make sense given Sullivan’s past history of profiting off inciting violence at peaceful protests, but instead to Sullivan’s obstruction charge. That seems to argue that Sullivan’s filming of the insurrection, in which he cajoled police to step down (including from the confrontation before Babbitt was shot) and cheered on the seizure of the Capitol, was part of the successful obstruction of the vote count.

Given Sullivan’s past incitement (which, ironically, was well-documented by leftist activists months before Trump supporters and Sullivan’s own brother tried to base an Antifa false flag claim on Sullivan’s presence), this may be a reasonable argument for Sullivan.

But there are at least five other right wing propagandists who were present at the insurrection for whom that might be a really troubling precedent (an InfoWars video editor Sam Montoya also witnessed and magnified Babbitt’s death).

Again, this may all be merited. And perhaps DOJ is tying Sullivan’s new charges for his knife to the seizure. But it seems an important development to track.

Update: Sullivan’s motion for a hearing on the seizures alluded to more discovery. This letter may describe that discovery. It describes a slew of subpoenas, including Square, JP Morgan, Venmo, Discover, Amazon, and others. In other words, the letter reflects a concerted effort to figure out how Sullivan’s finances work.

But the more interesting detail is item 21, reflecting the HIGHLY SENSITIVE estimate from the Architect of the Capitol estimating the cost of replacing a window. Sullivan’s own video strongly implies he broke that window. But he hasn’t been charged with it yet. That’s important, because he could be — and if he is, it could trigger terrorism enhancements.

It was harsh of the government to seize Sullivan’s funds. But what might come next will be far more harsh.

Update: Justin Rohrlich found and shared the seizure warrants. The logic behind this seizure is as follows:

¶31: The affidavit lays out evidence of Sullivan admitting he’s not a journalist, including hims saying on January 5 that he made that claim up “on the fly.”

¶32: A description of how after the riot, Sullivan changed his webpage description to incorporate a claim to be a journalist.

¶34: Citations to the hearing on his release violations in which he presented the contracts he got for the video.

¶35: A brag, right after he left the Capitol, saying, “Everybody’s gonna want this. Nobody has it. I’m selling it, I could make millions of dollars. … I brought my megaphone to instigate shit.”

¶36: A summary of the deposits paid for use of the video.

Rudy Giuliani and Jack Posobiec Claim a False Flag

Yesterday, the FBI arrested John Sullivan, one of the guys who took video showing Ashli Babbitt’s shooting in the January 6 insurrection. As the arrest affidavit describes, in an interview the day after the riot, Sullivan claimed he had been acting as a journalist at the riot.

SULLIVAN claimed to be an activist and journalist that filmed protests and riots, but admitted that he did not have any press credentials.

[snip]

23. At various times in his statements to law enforcement, to others inside the U.S. Capitol that were recorded in his video, and to news outlets, SULLIVAN has claimed he was at the U.S. Capitol only to document and report. In addition, your affiant is aware that, at various times, SULLIVAN has claimed to be a journalist. He has admitted, however, that he has no press credentials and the investigation has not revealed any connection between SULLIVAN and any journalistic organizations.

The affidavit describes that, at some protest in DC, Sullivan made anti-Trump comments.

The United States obtained a video of SULLIVAN, posted on YouTube, in which, while attending a protest in Washington, D.C., SULLIVAN can be seen telling a crowd, over a microphone, “we about to burn this shit down,” “we got to rip Trump out of office . . . fucking pull him out of that shit . . . we ain’t waiting until the next election . . . we about to go get that motherfucker.” SULLIVAN then can be seen leading the crowd in a chant of, “it’s time for a revolution.”1

But it quotes from a video he shared with the FBI repeatedly speaking of “we,” including himself in the mob. On several occasions, Sullivan convinced police to stand down (including in front of the Speaker’s Lobby, just before Babbitt was shot). And it provides evidence that Sullivan broke a window in one of the offices.

h. At one point in the video, SULLIVAN enters an office within the U.S. Capitol, as seen in the screenshot below. Once inside the office, SULLIVAN approaches a window, also seen in the screenshot below, and states, “We did this shit. We took this shit.”

i. While at the window, a knocking noise is heard off-screen. The camera then pans to show more of the window and a broken pane can be seen that was not broken on SULLIVAN’s approach to the window:

SULLIVAN can then be heard saying, “I broke it. My bad, my apologies. Well they already broke a window, so, you know, I didn’t know I hit it that hard. No one got that on camera.” SULLIVAN then exits the office.

Sullivan is charged with violent entry of Congress and impeding police officers during a civil disorder. He is not charged with breaking the window.

Even before his arrest, left wing activists had described concerns in that community, going back some time, that Sullivan was a provocateur working with others, including his brother James, who has ties to the Proud Boys and runs a pro-Trump organization.

But shortly after Sullivan’s arrest was reported, right wing propagandist Jack Posobiec pounced on his arrest, claiming it showed that BLM was behind the attacks and and that Sullivan’s actions led to Babbitt’s death (remember these screen caps have GMT, so subtract 5 for ET).

Then, in the middle of the night Rudy’s time, he posted a text from what appears to be John’s brother James.

Rudy presents this as proof that the riot was conducted by Antifa. But it instead seems to show that John’s brother (the phone number is in Utah, where they’re from) claimed to be, “working with the FBI,” had gotten his “agent” and three others out of trouble (Rudy did not show when he received this text, so it may have predated John’s arrest). It also showed that Sullivan seemed to have ties with someone named Kash, who might be Patel, the Devin Nunes flunky who got installed as DOD’s Chief of Staff. Patel would likely have had a key role in ensuring the National Guard delayed any response to the riot last week.

A Nazi sympathizer and the President’s lawyer seemed prepared to speak from the script that Donald Trump seems to have written the day before the riot, when he moved towards naming Antifa a terrorist organization. The OANN propagandist and chief purveyor of fraudulent claims about the election are attempting to use the arrest of John Sullivan to claim that their own people did not plan out this coup attempt.

In the process, however, Rudy Giuliani may have tied the President and the Proud Boys, and the Pentagon together in the plot. And Rudy’s calls to Tommy Tuberville after people had already died, that ties people n Congress to the attempts to assassinate members of Congress.

Update: I’ve been persuaded that “Kash” is someone else who was detained after the raid, so deleted references to Kash Patel. That person, Kash Kelly, is probably a convicted gang member awaiting his sentencing.

Update: Corrected that the anti-Trump comments may not have been at this protest.