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What is the appropriate sanction for a “pawn” who participated in a coup attempt?

One thing I informally track in January 6 guilty pleas is education level. At the beginning of most change of plea hearings, as part of an effort to substantiate competence to plead guilty, most judges ask, “How far did you go in school?” I first started to take note when Oath Keeper Graydon Young replied that he has a graduate degree. He’s a dramatic outlier. Since then, my very informal tracking of this detail has shown that very very few of the January 6 defendants who’ve pled guilty so far have a four year degree (others who do include but are not limited to Cleveland Meredith Jr, Jenna Ryan, and Andrew Ericson, the latter of whom finished a CompSci degree since the riot).

I track this demographic not out of intellectual snobbery. I know of some absolutely brilliant people who didn’t finish school (a close family member has been very successful without finishing college, and a good number of the smartest students in the 600 student high school class of which I was valedictorian dropped out short of graduation).

Rather, it’s that based on this unscientific observation, the January 6 defendants who’ve pled guilty are, demographically, dramatically less likely to have a four-year degree than the US population, closer to 10% (perhaps 8 of the 96 people who’ve pled guilty) than the 36% that one might expect of the population more broadly. To be sure, this is not scientific. At least two DC judges don’t ask this question, and my count reflects only those hearings where I was personally listening or another journalist who has become aware of my focus on it has noted it. Plus, there may be reasons why people with less education plead guilty earlier, such as that more of them make up those charged with misdemeanor trespassing. But even Brandon Straka, one of the leaders of the larger Trump movement, described that he went through 12th grade and then got a vocational degree at his change of plea.

January 6 defendants seem disproportionately white and rural, but they also appear to be less educated than the country as a whole, even those who’ve had a good deal of financial success.

I raise all that as background to the sentencing memo for Jack Griffith submitted overnight by Heather Shaner, the same defense attorney who convinced Anna Morgan-Lloyd to do some book reports before sentencing (after which Morgan-Lloyd went straight to Fox News to disclaim her stated remorse).

Shaner doesn’t really address the government’s request for a three month jail term.

Griffith pled guilty to one count of 40 U.S.C. § 5104(e)(2)(G): Parading, Demonstrating, or Picketing in the Capitol Building. As explained below, a custodial sentence is appropriate in this case because Griffith committed his January 6th crime in a manner that trivialized the severity  of the chaotic and dangerous attack, and his later self-promotion and commentary about his participation in the riot demonstrates continued pride in his actions. Griffith had many opportunities to remove himself from the disorder of January 6th but was all too happy to continue his participation. Following his arrest, his casual attitude toward these criminal proceedings demonstrated a lack of respect for this Court—worrying only that he did not want to appear too “cocky” that it was all going to go well for him. By minimizing the seriousness of his conduct, Griffith fails to recognize the harm he caused to his country, the law enforcement officers who were trying to defend it, and others who were working at the Capitol to carry out a Constitutionally mandated process for the peaceful transfer of power

Instead, Shaner focused on what the January 6 riot was, describing it as a coup attempt fomented by people who deliberately manipulated people online.

What occurred on January 6, 2021 was not a naturally developed political protest. It was, I believe, a coup attempt–fomented intentionally by right wing actors who used data mining and psychological manipulation. Vulnerable individuals were identified and persuaded through the internet that it was their patriotic duty to come to Washington to support Trump. In Washington, they were emboldened and ushered down the avenue to “Stop the Steal” and to storm the Capitol.

It is fitting and appropriate to arrest those who participated in the attempted coup. The difficult question is what is the appropriate sanction for a pawn who personally did no physical damage nor assaulted law enforcement– but nonetheless participated in the riot. As Fiona Hill recently stated the “main threats” to democracy come from right-wing actors who are deliberately undermining faith in the “integrity of the election system” and “calling for violence against fellow Americans.” Among the thousands who came to Washington in January and have since been arrested– few among the arrested are the people described by Ambassador Hill. Of the several individuals I have been appointed to represent—none are informed, intentional political actors. Four of the individuals I represent are very young—were heavily reliant on the internet—were uniformed and misinformed. Two individuals suffer from diagnosed mental diseases. The balance of individuals I have come to know and to respect are vulnerable, politically unsophisticated individuals, who are truly confounded by what is happening in our country. Good people with no criminal history—our neighbors– who were fed cynical and dangerous misinformation which destroyed their faith in the integrity of the election system. People who wrongly believed they could save America.

I think Shaner’s description of the event is sound. But I’m not sure she, or anyone, knows the answer to her question: What we do about pawns mobilized for a coup attempt, particularly in the absence of any accountability (yet) for the more powerful coup plotters.

Shaner argues that probation is appropriate for Griffith for two reasons. First, to avoid making a martyr of him.

We should not make pariahs or martyrs of these men and women.

But also to provide a period in which more education can occur.

To save our Union we must be wise. We must be compassionate. We must listen. We must provide the opportunity for the approximately 550 charged misdemeanants to receive more education, and to encourage each of them to study history and to gain civic literacy. Only knowledge—truth based on facts– can foster change. At this critical moment of civil discord and domestic contention –if it is still possible to create a more perfect Union –it must be through education. We cannot force people to learn. But during Probation, we can provide the impetus and the opportunity of continuing education.

This is an argument not about Jack Griffith (and because she’s pitching this to Chief Judge Beryl Howell, who asked with this defendant why DOJ hadn’t charged him more aggressively, it’s unlikely to work). It’s an argument about what the path forward needs to be.

Few people besides Shaner think probation can accomplish what she envisions here (though a three year term of probation will keep defendants supervised and prohibited from owning guns through the next Presidential election). Indeed, the two judges imposing most disparate sentences for trespassers so far, Tanya Chutkan (who has sentenced two trespassers, including Anna Morgan-Lloyd’s buddy, Dona Bissey, to jail terms in the last week), and Trevor McFadden (who has sentenced defendants to far shorter terms of probation than the government asked for, though with extra on top) have come out against probation for these defendants. Chutkan believes Probation is simply too overtaxed to deal with the influx of all these trespassers. McFadden seems to believe what he sees as a debt to society can better be paid through a fine (he imposed the only fine thus far on Danielle Doyle) or community service (which he imposed on Eliel Rosa); McFadden also believes that January 6 defendants are being treated more harshly than other rioters.

Meanwhile, in the case of Robert Reeder, who was first charged with trespassing then, at the last minute, discovered to have assaulted a cop and downplayed that to the FBI, got sentenced to just three months in jail by Thomas Hogan, rather than the six months prosecutors requested rather than charging him with that assault.

I don’t know the answer to Shaner’s question. And I badly wish that Prettyman Courthouse were fully open so I could assume that judges were hashing this out over lunch in their judge’s lunchroom. I know that there are a significant portion of defendants who really were just engaged in the kind of civil disobedience I don’t want criminalized. Though I also know that as DOJ has pushed to move through the misdemeanors and accepted downward pleas from those charged more seriously for a variety of reasons, it has fostered seeming inequities among the growing group of trespassers being sentenced.

Whether or not Shaner is right about Griffith, she’s right about what happened: Coup plotters used conspiracy theories to mobilize thousands, as if in a cult, to storm the Capitol. We need deprogramming as much as we need jail time. And our criminal justice system is probably ill-suited to provide either.

Don’t Ignore What Trevor McFadden Has to Say about January 6

Tierney Sneed had a good article yesterday summarizing how starkly some of the judges presiding over January 6 cases have described it. For example, Sneed quoted liberally from the comments Randolph Moss made in sentencing Paul Hodgkins, comments that the government and other judges are quoting frequently.

“It means that it will be harder today than it was seven months ago for the United States and our diplomats to convince other nations to pursue democracy,” Judge Randolph Moss said at a July 19 sentencing hearing. “It means that it will be harder for all of us to convince our children and our grandchildren that democracy stands as the immutable foundation of this nation. It means that we are now all fearful about the next attack in a way that we never were.”

[snip]

Moss, a nominee of President Barack Obama, said that the attack “threatened not only the security of the Capitol, but democracy itself,” as he sentenced Paul Hodgkins, a rioter who pleaded guilty to obstructing an official proceeding.

“Our elected representatives from both political parties came together that day to perform their constitutional and statutory duty to declare, in the word of the statute, the person elected president,” Moss said at the July 19 hearing. “The mob’s objective was to stop that from happening. They were prepared to break the law to prevent Congress from performing its constitutional and statutory duty. That is chilling for many reasons.”

She includes judges appointed by Democrats (in addition to Moss, Amy Berman Jackson and Beryl Howell) and Republicans (Reggie Walton and Royce Lamberth).

As someone who thinks January 6 was exceptionally dangerous, it’s comforting to hear some judges agree. But I think that, to make a case about how judges are interpreting January 6, you would need to include the statements of a judge like Trevor McFadden, as well.

Of the District Judges carrying the heavy January 6 case load, four — Carl Nichols, Dabney Friedrich, Tim Kelly, and McFadden — are Trump appointees. Unlike some of Trump’s DC Circuit appointees, they’re all serious judges, with time as prosecutors or in other DOJ roles. Trump appointees aren’t necessarily going to be more favorable for January 6 defendants. While Nichols may have burnished his right wing bonafides clerking for Clarence Thomas, for example, that means he spent a lot of time with a Justice who is generally awful for non-corporate defendants’ rights. Former public defender and Obama appointee Tanya Chutkan has already made decisions (on bail) that are more favorable to defendants than the Trump appointees, for example, and I expect that to continue (the judge presiding over the Oath Keeper conspiracy case, Amit Mehta, has also served as a public defender).

Still, as recent Republican appointees, the Trump judges are an important read and voice on this investigation. Both by disposition and record on the court, Friedrich is probably the Trumpiest judge, but thus far the most interesting case she has been assigned is that of Guy Reffitt, the III Percenter who threatened his kids if they revealed his role in the riot; in that case, she approved an order allowing prosecutors to use his face to open a laptop with pictures from the insurrection. Nichols has a bunch of cases, such as the Pollocks or former Green Beret Jeffrey McKellop, that may get interesting down the road, but thus far his most active cases have involved presiding over the plea deals of a group of people arrested on trespass charges on the day of the attack. Tim Kelly is presiding over the bulk of the Proud Boy cases, which by itself gives him a pretty full docket (but is also why DOJ really fucked up by treating Ethan Nordean’s invocation of the Kavanaugh protests so blithely); his decisions thus far have been totally fair. The decisions of Trevor McFadden, who is presiding over the omnibus Tunnel assault case, have also been fair.

I think McFadden’s statements should be included in any read of what these judges think of January 6 because he has pulled a number of the ones that, because the defendants’ political speech has been implicated in the cases against them, will provide an early read about how a Republican with solid political ties will view the balancing of political speech and threat posed by January 6.

In addition to the Hunter and Kevin Seefried prosecution (the latter of whom was pictured carrying a Confederate flag through the Capitol), McFadden is presiding over the prosecutions of American Firster Christian Secor, Cowboys for Trump founder Couy Griffin, and Neo-Nazi Timothy Hale-Cusanelli.

In these cases, McFadden has expressed a fair amount of nuance in his views as he has presided over some genuinely difficult decisions.

He did take the way Hale-Cusanelli expressed his bigotry into account when he decided to hold him without bail (which was genuinely one of the most difficult detention decisions, in my opinion, and I was leaning towards release before McFadden made the decision), but in significant part because he may have acted on those views in the past and because his promises of action were alarming and intimidating his colleagues.

Having said all of that, we don’t typically penalize people for what they say or think. I think for purposes of my analysis, I need to — I’m trying to figure out whether this well-documented history of violent and racist language does suggest that the defendant poses a danger to the community.

[snip]

I also note the government’s evidence that the defendant appears to have surrounded himself, to a certain extent anyway, with people who have encouraged this behavior and people who may even agree with him. And I agree with the government’s concern regarding potential escalation of violence at this point given all that has occurred. And I am concerned for the safety of the confidential human source. I think given all of the facts here in the government’s motion, I mention it is pretty obvious to the defendant anyway who this person is. And I am concerned given all of the defendant[‘]s — all of the things he said in the past about committing violence against those who he feels are pitted against him. And given the sum evidence that the defendant has been willing to put these thoughts into action in the past, I think I do have a duty to protect that confidential source.

McFadden did, however, release someone with similarly repugnant views, Secor, even though Secor had been arming himself, in part because Secor had third party custodians — his parents — willing to vouch for him and put up a $200,000 bond. McFadden seems to be seeking to separate out hateful speech from where that speech turns violent and, if nothing else, that struggle deserves close attention.

But he’s also not viewing DOJ’s response to January 6 as driven predominantly by First Amendment issues. In a decision rejecting Griffin’s attempt to throw out one of the trespassing charges DOJ has used — which Griffin, because he did not enter the Capitol, was uniquely situated to challenge — McFadden dismissed Griffin’s claims of political discrimination.

The Government moved to detain Griffin before trial. It described Griffin’s political views as “inflammatory, racist, and at least borderline threatening advocacy.” Gov’t’s Mem. in Supp. of Pretrial Detention at 2, ECF No. 3. The Government also highlighted the gun rights advocacy of Cowboys for Trump, as well as allegedly violent statements made by Griffin.

[snip]

Finally, Griffin complains of discriminatory prosecution. He contends that he was targeted and “selectively charged . . . because the government loathed him and his politics.” Def.’s Reply at 3. “Few subjects are less adapted to judicial review than the exercise by the Executive of his discretion in deciding when and whether to institute criminal proceedings, or what precise charge shall be made, or whether to dismiss a proceeding once brought.” United States v. Fokker Servs. B.V., 818 F.3d 733, 741 (D.C. Cir. 2016) (cleaned up). So “the presumption of regularity” applies to “prosecutorial decisions and, in the absence of clear evidence to the contrary, courts presume that prosecutors have properly discharged their official duties.” Id.

Griffin comes up short on providing the “clear evidence” required for this Court to surmount the presumption of regularity—and the separation of powers. He points to “hundreds or perhaps thousands of other individuals ‘remaining’ in the same area” as him on January 6 who have not faced charges under 18 U.S.C. § 1752. Def.’s Mot. at 24. The Court hesitates to credit these unsupported numbers, especially as the Government continues to charge new individuals with offenses related to January 6. Nor is the Court concerned by the Government’s statements about Griffin when seeking to detain him pretrial; detention hearings require the Court to consider the defendant’s history and personal characteristics, as well as his potential dangerousness.

Griffin highlights the Government’s dismissal of charges under 18 U.S.C. § 1752 in “the interests of justice” in United States v. Christopher Kelly, 21-mj-128 (D.D.C. 2021). According to news reports, the Government moved to drop the charges after determining Kelly did not enter the Capitol building. See Feds move to drop charges for Capitol riot defendant, Politico, June 1, 2021, https://www.politico.com/news/2021/06/01/feds-capitol-riot-defendant-491514 (“‘Since he was not inside, in the interest of consistency in the investigation, the charges were dropped,’ the official said.”). Even so, the Government could rationally forgo federal prosecution as to most trespassers while deciding that Griffin’s leadership role in the crowd, position as an elected official, and more blatant conduct at the scene merited him different treatment. Not all differences amount to discrimination. In any event, presumably Kelly and the other uncharged protestors surrounding Griffin on the Capitol steps share his “politics,” Def.’s Reply at 3, complicating his complaint of bias here.

Griffin also points to the numerous uncharged protestors who broke through USCP barricades to occupy the Capitol steps on the eve of Justice Kavanaugh’s Senate confirmation vote. See Def.’s Notice at 2, ECF No. 39; see also Kavanaugh Protesters Ignore Capitol Barricades Ahead of Saturday Vote, Roll Call, Oct. 6, 2019, https://www.rollcall.com/2018/10/06/kavanaugh-protesters-ignore-capitol-barricades-ahead-ofsaturday-vote/. Disparate charging decisions in similar circumstances may be relevant at sentencing. Cf. 18 U.S.C. 3553(a)(c) (“the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct”). But this is not a basis to dismiss the charges. [My emphasis]

McFadden based his decision on this point in part on separation of powers (the basis for some of his decisions that have been deemed pro-Trump) and presumption of regularity, as well as basic facts. He deemed reasonable the possibility that prosecutors viewed Griffin’s leadership role to be more important to prosecute. He suggested he might sentence Griffin (if he were found guilty) leniently based on a comparison with similarly situated protestors against Kavanugh. But he also based his decision on the notion that Griffin’s threats of violence (raised in a detention challenge conducted before Michael Sherwin departed) could pose a genuine concern to the government.

McFadden is not treating this investigation as a witch hunt against people with right wing views.

But at the same time, McFadden has deviated from his colleagues’ more alarmist language to refer to January 6. At least twice in hearings (including on this Griffin challenge), McFadden admonished an AUSA who referred to January 6 as an insurrection. Have you charged anyone with insurrection, McFadden rightly asked. In a court room, these are not empty terms. They are also names of crimes. And DOJ needs to be careful not to accuse these defendants of crimes that — for whatever reason — they haven’t charged.

It’s not that McFadden thinks January 6 was not serious. In the same Hale-Cusanelli hearing, he described, “Obviously, the January 6th riot was a serious and sui generis threat to our country’s body politic.” But thus far (he has not presided over any of the six cases that have been sentenced yet), he has adopted a more moderate tone in discussing the event.

It’s true that, for the moment, some District Court Judges will frame how we think of January 6. In Munchel, the DC Circuit, too, described January 6 in grave terms (albeit in a passage of Robert Wilkins’ majority opinion not joined by Greg Katsas).

It cannot be gainsaid that the violent breach of the Capitol on January 6 was a grave danger to our democracy, and that those who participated could rightly be subject to detention to safeguard the community. Cf. Salerno, 481 U.S. at 748 (“[I]n times of war or insurrection, when society’s interest is at its peak, the Government may detain individuals whom the government believes to be dangerous.” (citations omitted)).

But ultimately, the six Republican appointees on the Supreme Court will have their say about what this event was — at least about whether hundreds of people committed felony obstruction in trying to halt the peaceful transfer of power. And with that in mind, commentators and DOJ would do well to watch carefully for the specific aspects of January 6 that Trevor McFadden finds most troublesome.

The Rebellion Rorschach: The Many Faces of the January 6 Investigation

Four different things happened yesterday to demonstrate how differently judges presiding over the January 6 trial view it, and how little they seem to understand the intersecting nature of this investigation.

DC Circuit ignores its own language about co-conspirators and abettors

The final event was the reversal, by a per curiam panel including Karen Henderson, Judith Rogers, and Justin Walker, of Thomas Hogan’s decision to hold George Tanios pretrial.

As a reminder, Tanios is accused of both conspiring and abetting in Julian Khater’s attack on three cops, including Brian Sicknick, with some toxic substance.

I’m not going to complain about Tanios’ release. By way of comparison, Josiah Colt has never been detained, and he pled out of a conspiracy with Ronnie Sandlin and Nate DeGrave in which they, like Tanios and Khater, planned to arm themselves before traveling to DC together, and in which Sandlin and DeGrave, like Khater, are accused of assaulting cops that played a key role in successfully breaching the Capitol. The main difference is that Khater’s attack injured the three officers he targeted using a toxic spray purchased by Tanios.

It’s how the DC Circuit got there that’s of interest. Tanios had argued that Hogan had used the same language from the Munchel decision everyone else does, distinguishing those who assault or abet in assaulting police which the DC Circuit has returned to in upholding detention decisions since, and in so doing had applied a presumption of detention for those accused of assault and abetting assault.

In assessing Tanios’s risk of danger, the District Court placed too much emphasis on this sentence from Munchel: “In our view, those who actually assaulted police officers and broke through windows, doors, and barricades, and those who aided, conspired with, planned, or coordinated such actions, are in a different category of dangerousness than those who cheered on the violence or entered the Capitol after others cleared the way.” Id. at 1284.

This is only one line in a ten-page opinion written by Judge Wilkins. It is dicta. It was not quoted or adopted by Judge Katsas’s separate opinion. This line does not create a new approach for evaluating detention issues in this Circuit. It does not mandate that defendants be placed in two separate categories. It does not require a separate, harsher treatment for defendants accused of specific violent offenses. Critically, it does not create a presumption of future dangerousness and should not create a presumption of detention. Rather, it seems that the line is merely intended to remind district court judges that violence is one factor to consider in making a determination about dangerousness. [my emphasis]

The DC Circuit specifically ruled against Tanios on his claim that Hogan had misapplied Munchel.

[A]ppellant has not shown that the district court applied a presumption of detention in contravention of the Bail Reform Act and precedent, see United States v. Khater, No. 21-3033, Judgment at *2 (D.C. Cir. July 27, 2021)

They had to! As their citation makes clear, just two weeks ago, a per curiam panel of Patricia Millet, Robert Wilkins, and Ketanji Brown Jackson upheld the very same detention order (which covered both defendants), holding that the same line of the Hogan statement that Tanios pointed to did not do what both Tanios and Khater claimed it had, presume that assault defendants must be detained.

Appellant contends that the district court misapplied our decision in United States v. Munchel, 991 F.3d 1273 (D.C. Cir. 2021), by making a categorical finding, based solely on the nature of the offense charged (assaultive conduct on January 6), that no conditions of release could ever mitigate the per se prospective threat that such a defendant poses. If the district court had proceeded in that fashion and applied some sort of non-rebuttable presumption of future dangerousness in favor of detention, it would have been legal error. See id. at 1283 (“Detention determinations must be made individually and, in the final analysis, must be based on the evidence which is before the court regarding the particular defendant. The inquiry is factbound.”) (quoting United States v. Tortora, 922 F.2d 880, 888 (1st Cir. 1990)). However, while the district court stated, “Munchel delineates an elevated category of dangerousness applied [to] those that fall into the category that necessarily impose a concrete prospective threat,” the district court also explained, “I think Munchel does not set a hard-line rule. I don’t think that the categories are solely determinative, but it creates something like a guideline for the Court to follow . . . .” Detention Hr’g Tr. at 42:21-24; 43:11-13, ECF No. 26 (emphasis added). In making its ruling, the district court discussed at length the facts of this case, and expressly noted that “we have to decide whether the defendant is too dangerous based upon that conduct to be released or is not,” “every circumstance is different in every case, and you have to look at individual cases,” and that “the government may well not overcome the concrete and clear and convincing evidence requirement.” Id. at 43:8-10, 43:16-18, 43:20-21. Based on our careful review of the record, we find that the district court made an individualized assessment of future dangerousness as required by the Bail Reform Act and that appellant has not shown that the district court applied an irrefutable presumption of mandatory detention in contravention of the statute and our precedent.

Yesterday’s panel cited the earlier affirmation of the very same opinion that detained Tanios.

It’s in distinguishing Tanios where the panel got crazy. The panel could have argued that the evidence that Tanios conspired with or abetted Khater’s assault was too weak to hold him — Tanios made a non-frivolous argument that in refusing to give Khater one of the two canisters of bear spray he carried, he specifically refused to join in Khater’s attack on the cops. But they don’t mention conspiracy or abetting charges.

Instead, the DC Circuit argued that Hogan clearly erred in finding Khater’s accused co-conspirator to be dangerous.

[T]he district court clearly erred in its individualized assessment of appellant’s dangerousness. The record reflects that Tanios has no past felony convictions, no ties to any extremist organizations, and no post-January 6 criminal behavior that would otherwise show him to pose a danger to the community within the meaning of the Bail Reform Act. Cf. Munchel, 991 F.3d at 1282-84 (remanding pretrial detention orders where the district court did not demonstrate it adequately considered whether the defendants present an articulable threat to the community in light of the absence of record evidence that defendants committed violence or were involved in planning or coordinating the events of January 6).

Munchel isn’t actually a precedent here, because that decision remanded for further consideration. The DC Circuit ordered Hogan to release Tanios. Crazier still, in citing the same passage from Munchel everyone else does, the DC Circuit edited out the language referring to those who abetted or conspired with those who assaulted cops, the language used to hold Tanios. It simply ignores the basis Hogan used to hold Tanios entirely, his liability in a premeditated attack he allegedly helped to make possible, and in so doing argues the very same attack presents a danger to the community for one but not the other of the guys charged in it.

If this were a published opinion, it would do all kinds of havoc to precedent on conspiracy and abetting liability. But with two short paragraphs that don’t, at all, address the basis for Tanios’ detention, the DC Circuit dodges those issues.

Beryl Howell has no reasonable doubt about January 6

Earlier in the day, DC Chief Judge Beryl Howell grew exasperated with another plea hearing.

This time, it was Glenn Wes Lee Croy, another guy pleading guilty to a misdemeanor “parading” charge. The plea colloquy stumbled on whether Croy should have known he wasn’t permitted on the Capitol steps — he claimed, in part, that because this was his first trip to DC, he didn’t know he shouldn’t have been on the steps, even in spite of the barricades. Croy was fine admitting he shouldn’t have been in the building, though.

Things really heated up when Howell started asking Croy why he was parading (Josh Gerstein has a more detailed description of this colloquy here).

Under oath, pleading to a misdemeanor as part of a deal that prohibits DOJ from charging Croy with anything further for his actions on January 6, he made some kind of admission that Howell took to mean he was there to support Trump’s challenge to the election, an admission that his intent was the same as the intent required to charge obstruction of the vote count.

When she quizzed AUSA Clayton O’Connor why Croy hadn’t been charged with felony obstruction for his efforts to obstruct the vote certification, the prosecutor explained that while the government agreed that contextually that’s what Croy had been doing, the government didn’t find direct evidence that would allow him to prove obstruction beyond a reasonable doubt, a sound prosecutorial decision.

O’Connor is what (with no disrespect intended) might be deemed a journeyman prosecutor on the January 6 cases. He has seven cases, five of which charge two buddies or family members. Of those, just Kevin Cordon was charged with the obstruction charge Howell seems to think most defendants should face, in Cordon’s case for explicitly laying out his intent in an interview the day of the riot.

We’re here to take back our democratic republic. It’s clear that this election is stolen, there’s just so much overwhelming evidence and the establishment, the media, big tech are just completely ignoring all of it. And we’re here to show them we’re not having it. We’re not- we’re not just gonna take this laying down. We’re standing up and we’re taking our country back. This is just the beginning.

O’Connor is prosecuting Clifford Mackrell and Jamie Buteau for assault and civil disorder. But otherwise, all his cases are trespass cases like Croy’s (including that of Croy’s codefendant Terry Lindsey).

This was the guy who, with no warning, had the task of explaining to the Chief Judge DOJ’s logic in distinguishing misdemeanor cases from felonies. Unsurprisingly, it’s all about what the government thinks they can prove beyond a reasonable doubt, based on evidence like that which Cordon shared with a journalist or, just as often, what people write in their social media accounts. This process has made sense to the few of us who have covered all these cases, but like O’Connor, Howell is dealing primarily with the misdemeanor cases and my not see how DOJ appears to be making the distinction.

Howell also demanded an explanation from O’Connor in Croy’s sentencing memo why DOJ is not including the cost of the National Guard deployment in the restitution payments required of January 6 defendants.

Both according to its own prosecutorial guidelines and the practical limitations of prosecuting 560 defendants, DOJ can’t use a novel application of the obstruction statute to charge everyone arrested in conjunction with January 6 with a felony. It’s a reality that deserves a better, more formal explanation than the one O’Connor offered the Chief Judge extemporaneously.

Trevor McFadden believes a conspiracy to overthrow democracy is not a complex case

Meanwhile, the Discovery Coordinator for the entire investigation, Emily Miller, missed an opportunity to explain to Trevor McFadden the logic behind ongoing January 6 arrests.

In advance of a hearing for Cowboys for Trump founder Couy Griffin, prosecutor Janani Iyengar submitted a motion for a 60-day continuance to allow for the government to work through discovery. She brought Miller along to a status hearing to explain those discovery challenges to McFadden, who had complained about them in the past and refused to toll the Speedy Trial Act in this case. Because Iyengar recently offered Griffin a plea deal, his attorney Nick Smith was fairly amenable to whatever McFadden decided.

Not so the judge. He expressed a sentiment he has in this and other cases, that the government made a decision to start arresting immediately after the attack and continues to do so. “There seems to be no end in sight,” McFadden complained, suggesting that if DOJ arrested someone in three months who offered up exculpatory evidence that affected hundreds of cases, those would have to be delayed again. In spite of the fact that several prosecutors have explained that the bulk of the evidence was created on January 6, McFadden persists in the belief that the trouble with discovery is the ingestion of new evidence with each new arrest.

Miller noted that the government could start trials based on the Brady obligation of turning over all exculpatory evidence in their possession, so future arrests wouldn’t prohibit trials. The problem is in making the universe of video evidence available to all defense attorneys so they have the opportunity of finding evidence to support theories of defense (such as that the cops actually welcomed the rioters) that would require such broad review of the video.

McFadden then suggested that because Griffin is one of the rare January 6 defendants who never entered the Capitol, Miller’s team ought to be able to segregate out an imagined smaller body of evidence collected outside. “Were that it were so, your honor,” Miller responded, pointing out that there were thousands of hours of surveillance cameras collected from outside, the police moved in and outside as they took breaks or cleaned the bear spray from their eyes so their Body Worn Cameras couldn’t be segregated, and the Geofence warrant includes the perimeter of the Capitol where Griffin stood.

McFadden then said two things that suggested he doesn’t understand this investigation, and certainly doesn’t regard the attack as a threat to democracy (he has, in other hearings, noted that the government hasn’t charged insurrection so it must not have been one). First, he complained that, “In other cases,” the government had dealt with a large number of defendants by giving many deferred prosecutions or focusing just on the worst of the worst, a clear comparison to Portland that right wingers like to make. But that’s an inapt comparison. After noting the data somersaults one has to do to even make this comparison, a filing submitted to Judge Carl Nichols in response to a selective prosecution claim from Garret Miller explained the real differences between Portland and January 6: There was far less evidence in the Portland cases, meaning prosecutions often came down to the word of a cop against that of a defendant and so resulted in a deferred prosecution.

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.

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).

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. [my emphasis]

McFadden ended with one of his most alarming comments. He said something to the effect of, he doesn’t feel that the January 6 investigation was a complex type of case akin to those (often white collar cases) where a year delay before trial was not that unusual.

This was a fairly breathtaking comment, because it suggests that McFadden sees this event as the magical convergence of thousands of criminals at the Capitol rather than the result of a sustained conspiracy to get a mass of bodies to the building, a conspiracy that started at least as early as the days after the election. While McFadden’s highest profile January 6 case is a sprawling assault case against Patrick McCaughey and others (the one that trapped Officer Daniel Hodges in the Capitol door), this view seems not to appreciate some larger investigative questions pertinent to some of his other defendants. For example, what happened to the laptops stolen from various offices, including the theft that Brandon Fellows may have witnessed in Jeff Merkley’s office. Did America First engaged in a conspiracy to gets its members, including Christian Secor, to the Capitol (and did a huge foreign windfall that Nick Fuentes got days before the insurrection have anything to do with that). What kind of coordination, if any, led a bunch of Marines to successfully open a second front to the attack by opening the East Doors also implicates Secor’s case. One of the delays in Griffin’s own case probably pertained to whether he was among the Trump speakers, as members of the 3-Percenter conspiracy allegedly were, who tied their public speaking role to the recruitment of violent, armed rioters (given that he has been given a plea offer, I assume the government has answered that in the negative).

It has become increasingly clear that one of the visible ways that DOJ is attempting to answer these and other, even bigger questions, is to collect selected pieces of evidence from identifiable trespassers with their arrest. For example, Anthony Puma likely got arrested when he did because he captured images of the Golf Cart Conspiracy with his GoPro. He has since been charged with obstruction — unsurprisingly, since he spoke in detailed terms about preventing the vote certification in advance. But his prosecution will be an important step in validating and prosecuting the larger conspiracy, one that may implicate the former President’s closest associates.

This is white collar and complex conspiracy investigation floating on top of a riot prosecution, one on which the fate of our democracy rests.

Melody Steele-Smith evaded the surveillance cameras

A report filed yesterday helps to explain the import of all this. Melody Steele-Smith was arrested within weeks of the riot on trespass charges, then indicted on trespass and obstruction charges. She’s of particular interest in the larger investigation because — per photos she posted on Facebook — she was in Nancy Pelosi’s office and might be a witness to things that happened there, including the theft of Pelosi’s laptop.

At a hearing last week, the second attorney who has represented her in this case, Elizabeth Mullin, said she had received no discovery, particularly as compared to other January 6 defendants. So the judge in that case, Randolph Moss, ordered a status report and disclosure of discovery by this Friday.

That status report admits that there hasn’t been much discovery, in particular because, aside from the surveillance photos used in her arrest warrant, the government hasn’t found many images of Steele-Smith in surveillance footage.

The United States files this memorandum for the purpose of describing the status of discovery. As an initial matter, the government has provided preliminary discovery in this case. On or about June 4, 2021, the government provided counsel for defendant preliminary discovery in this matter. This production had been made previously to the defendant’s initial counsel of record. Counsel for defendant received the preliminary production that had been provided to previous counsel. This preliminary production included the FBI 302 of defendant’s sole interview, the recorded interview of defendant which formed the basis of the aforementioned FBI 302, over one thousand pages of content extracted from defendant’s Facebook account, and thirty-nine photographs confiscated from defendant’s telephone.

The government is prepared to produce an additional discovery production no later than August 13, 2021. The production will include additional items that have been obtained by the government from the FBI. These items include, additional FBI investigative reports and the Facebook search warrant dated January 21, 2021. The FBI has provided the government with the full extent of the materials in its possession. While these items are few in number, the government is continuing to review body worn camera footage in an attempt to locate the defendant. Camera footage will be provided if it is located. The government has been diligent in its efforts to obtain all discoverable items in possession of the FBI.

That still leaves a thousand Facebook pages and 39 photos, some of them taken at a key scene in the Capitol a scene that — given the evidence against Steele-Smith and in other cases — is a relative blind spot in the surveillance of the Capitol. The interview described here is not reflected in her arrest warrant, and so may include non-public information used to support the obstruction case.

Beryl Howell might argue this is sufficient evidence to prove the government’s obstruction case. Trevor McFadden might argue that this case can’t wait for more video evidence obtained from future arrestees of what Steele-Smith did while “storm[ing] the castle” (in her own words), including the office of the Speaker of the House. But the theft of the Pelosi laptop — including whether Groypers like Riley Williams were involved — remains unsolved.

If a single terrorist with suspect ties to foreign entities broke into the office of the Speaker of the House and stole one of her laptops, no one would even think twice if DOJ were still investigating seven months later. But here, because the specific means of investigation include prosecuting the 1,000 people who made that break-in possible, there’s a push to curtail the investigation.

I don’t know what the answer is because the Speedy Trial issues are very real, particularly for people who are detained. But I do know it’s very hard for anyone to get their mind around this investigation.

January 6: The Trespasser Testimonials

The other day, when accepting her first misdemeanor January 6 plea, Chief Judge Beryl Howell expressed dismay that Jack Griffith was getting such a lenient plea for taking part in a violent mob that terrorized Congress and the Vice President. In response, his attorney Heather Shaner and the prosecutor Mitra Jafary-Hariri defended the deal, in part, by talking about how cooperative Griffith was. In response, Judge Howell distinguished simple cooperation from a cooperation deal, which requires extended work with prosecutors to indict others.

Howell is not wrong.

But this post has convinced me of something I already suspected: DOJ is using even misdemeanor plea deals to build their larger case. As I noted, the statement of offense to which Eliel Rosa pled guilty described that before he entered the Upper West Terrace door at 2:35PM and passed cops who had not put up much resistance to rioters, he had witnessed “people with megaphones shouting, ‘Go, Go, Go'” and smelled pepper spray which made it clear to him that “law enforcement was present and in front of the advancing group.” This sworn allocution will make it harder for people like Ethan Nordean to claim that, when he entered the same door minutes later, he had no way of knowing that he was trespassing.

Reviewing a good percentage of the misdemeanor pleas so far, it seems most provide one or another kind of support (or both) for the larger case. Some of the defendants pled to details about their own participation that will support the violence of the day. In addition to Rosa (whose testimony will be detrimental to Nordean and others who are claiming because guards didn’t resist he wasn’t trespassing), Kevin Gallagher’s statement of offense will probably be useful in prosecuting Jason Buteau. Some of the other statements of offense describe defendants witnessing other assaults or destruction.

The other way misdemeanor pleas likely will help prosecutors is in validating the video they took during the riot or other testimony such that it will more easily be entered into evidence against other defendants. I’ve long believed that the FBI is focusing some of their arrests of trespassers on those it believes have useful video against more dangerous rioters, and that’s true even of the handful who have pled guilty already. For example, Andrew Bennett’s video must be among the video evidence shared with defendants who broke open the window through which Ashli Babbitt tried to enter. Dona Bissey and Anna Morgan-Lloyd between them took a picture that shows several rioters who stole a sign from Nancy Pelosi’s office (and the government seems very interested in Bissey’s pictures of rioters on the scaffolding). For defendants with useful video, the government needs to ensure the video they collected can be validated to be used against other rioters. In some statements of offense, then, trespassers end up describing taking video and even (sometimes) that they took selfies as part of that video.

Trespassers witness the violence

Bruce Ivey:

After the police line and metal barricades were breached, IVEY walked towards the Senate Wing Door, where he watched another rioter break through the window immediately adjacent to the Senate Wing Door using a riot shield.

Thomas and Lori Vinson:

After the rally, the defendants marched to the U.S. Capitol building, where they entered the first floor at around 2:18 p.m. Cell phone video recorded by the defendants shows broken glass and alarms blaring as they entered. They were present in a first-floor corridor barricaded by law enforcement officers at approximately 2:31 p.m.

Danielle Doyle:

Danielle Nicole Doyle entered the U.S. Capitol building on January 6, 2021, at approximately 2:20 p.m., by climbing through a broken window located next to the Senate Wing Door.

Edward Hemenway and Robert Bauer:

8. On January 6, 2021, after the “Stop the Steal” rally, Robert Bauer and Edward Hemenway, who are cousins, followed a crowd to the U.S. Capitol. As Bauer and Hemenway entered the U.S. Capitol grounds, Hemenway saw a green plastic sign that said, “Do Not Enter,” but continued anyway. As they walked toward the U.S. Capitol building, they saw officers in S.W.A.T.-style gear standing near the scaffolding outside the building. Bauer and Hemenway linked-up with a group walking toward a door into the building. They entered the U.S. Capitol building together with the group at around 2:10 p.m. E.S.T. They then made their way into the Crypt. As they entered the Crypt, Hemenway believed members of the crowd were fighting with police officers.

9. While inside the U.S. Capitol, Bauer and Hemenway chanted, “Stop the Steal!” Bauer also took pictures and videos, and chanted, “Our house! Our house!”

Derek Jancart and Erik Rau:

JANCART and RAU watched from the West Lawn while rioters broke through the police line and rushed up the stairs of the Capitol. RAU video-taped that moment, stating on the video, “We made it up to the Capitol. … We have the police surrounded! We have you surrounded!” In the background, rioters can be heard yelling, “get him!” and “traitors gonna hang!” When the rioters broke through the police line, RAU can be heard screaming, “Yeah! They just pushed through the guards!”

JANCART and RAU then entered the Capitol Building through the Senate Door. JANCART and RAU then traveled through the Crypt. After exiting the Crypt, JANCART and RAU took the stairwell south of the Crypt to the second floor of the Capitol and walked towards the Speaker’s conference room. RAU stepped inside of the Speaker’s conference room while JANCART stayed outside and took a photo.

JANCART posted a photo of the door to the Speaker’s conference room to Facebook with the caption, “We’re in.”

Jack Griffith:

Griffith attended the Stop the Steal rally and then walked to the U.S. Capitol. Griffith unlawfully entered the restricted Capitol grounds, arriving near the North West Scaffolding and Stairs at approximately 2:14 to 2:16 p.m. on January 6, 2021. Griffith spent time in the crowd by the inauguration stage on the west side of the U.S. Capitol building observing members of the crowd attacking law enforcement repeatedly as they tried to keep the crowd away from the building. Griffith then went up the northern set of stairs underneath the scaffolding to the north west terrace near the Senate wing of the building.

Griffith entered a door to the Capitol which had been broken open. Griffith entered the Capitol with his Co-Defendants Eric Chase Torrens and Matthew Bledsoe at approximately 2:18 p.m. The fourth Co-Defendant Blake Reed entered shortly behind Griffith, Torrens and Bledsoe. Griffith’s entrance is captured in surveillance footage and in a selfie-stye video that his Co-Defendant Matthew Bledsoe shared on social media. The selfie-style video shows them immediately outside of an exterior door of the Capitol. An alarm can be heard blaring in the background. Co-Defendant Torrens said, “We’re going in!” The camera then pans to Griffith who screamed in excitement.

Michael Curzio:

Shortly after 2:30 p.m., video surveillance captured Curzio walking inside the Capitol Visitors Center (“CVC”), which is part of the Capitol building. Curzio and others gathered in a CVC corridor at the end of which U.S. Capitol Police officers had formed a defensive line. The officers issued commands for the rioters to leave the building. When rioters refused their commands, the officers began arresting individuals who had unlawfully entered the building, including Curzio. Curzio admitted he refused to leave the premises after being ordered to do so.

Curzio was compliant following his arrest, and later cooperated with law enforcement by providing the Federal Bureau of Investigation (“FBI”) his swipe code so the FBI could search his phone.

Matthew Mazzocco:

During the time relevant to the above described events, the defendant entered the U.S. Capitol and walked around the building. The defendant entered and walked around at least one conference room type-area and walked through various hallways. While doing so, the defendant told others not to take or destroy anything, and that they were probably going to get in trouble for what they were doing.

Kevin Gallagher:

Shortly after 2:30 p.m., video surveillance captured Gallagher walking in the Capitol Visitors Center, which is part of the Capitol building. At one point, Gallagher appeared to admonish another rioter not to throw a chair.

The rioter in question is likely Jason Buteau, who threw a chair in CVC between 2:29 and 2:31, but the moment he actually threw the chair was not caught on camera.

Boyd Camper:

Camper subsequently admitted to law enforcement that he “picked the right hole” to get himself to a stairway area. He saw that the police lines had been broken, as well as persons getting tear gassed and pushing to get inside the building. Camper stated that he believed he was in the frontline of the situation, and that “in my mind, we were going to take the Capitol steps.” Camper also admitted that he went inside the U.S. Capitol building.

Eric Torrens

Torrens spent time in the crowd by the inauguration stage on the west side of the U.S. Capitol building observing members of the crowd throwing items at law enforcement.

Mark Simon

As Simon filmed the video he approached the doorway to the U.S. Capitol, law enforcement officers inside the U.S. Capitol could be seen attempting to remove individuals from the building. Broken glass windows could be observed on two of the doors of the U.S. Capitol, including one that was directly next to Mark Simon while he was taking the video.

Once Mark Simon was in the doorway of the U.S. Capitol building, he turned the camera on himself and said, “In the Capitol baby, yeah!” Shortly thereafter, Mark Simon turned the camera on himself again and said, “2021 Donald Trump!” A screenshot from the portion of the video in which Mark Simon turned the camera on himself is below, along with an image from the video provided to the FBI by a member of the public. A broken glass window is visible directly behind Mark Simon in the first image.

Then-Houston cop Tam Pham

The defendant walked over fences on the Capitol grounds that had been previously knocked over, and saw police officers as he approached the U.S. Capitol Building with a large crowd of people. He continued to walk past a broken or torn down fence, and he passed other barricades on his way to the U.S. Capitol Building

Anthony Sirica:

As SCIRICA approached the Capitol, he saw people on the steps and on the scaffolding outside of the Capitol. SCIRICA saw a large crowd in front of him, and he decided to push his way to the front to see what was happening. He watched as other individuals entered the Capitol. He decided that he want to see it for himself and see what was happening with his own eyes. He heard people yelling and shouting “U.S.A.” chants and “Stop the Steal.” He heard what he believed to be a window breaking. He also heard an alarm going off inside the Capitol. He decided to enter the Capitol any way.

SCIRICA entered the U.S. Capitol on January 6, 2021. He entered through a Senate wing door at approximately 2:24 p.m.

 

While inside the Capitol, SCIRICA walked through the Rotunda at approximately 2:26 p.m., and he walked through Statuary Hall at approximately 2:27 p.m. He took photos and videos as he proceeded through the Capitol.

While inside the Capitol, SCIRICA saw law enforcement officers inside, but he continued to walk around inside the Capitol. He also saw a man push a law enforcement officer while inside the Capitol.

Trespassers validate their own video

Andrew Ryan Bennett:

9. On January 6, 2021, Bennett made his way to the Capitol grounds and began livestreaming video to his Facebook page from outside the building at approximately 1:00 p.m. Bennett eventually unlawfully entered the Capitol along with hundreds of other individuals. At approximately 2:17 p.m., 2:37 p.m., and 2:42 p.m., Bennett livestreamed three videos from inside the building to his Facebook page. During one point in one of those videos, Bennett admonished others not to be destructive inside the Capitol. At multiple points, Bennett turned the camera on himself and captured himself inside the building, wearing a hat with the letters “FAFO,” an abbreviation of a slogan popular among the Proud Boys, a far-right group. There is no evidence Bennett was violent or destructive on the grounds of or inside the Capitol.

10. On January 11, 2021, the Federal Bureau of Investigation (“FBI”) obtained a search warrant for Bennett’s residence in Columbia, Maryland. During the execution of the warrant, the FBI recovered the hat bearing the “FAFO” slogan that Bennett wore inside the Capitol. Following the search, Bennett voluntarily interviewed with the FBI, and admitted that he unlawfully entered the Capitol on January 6, 2021. He also provided the unlock code of his cellphone to the FBI so FBI could search the device, and has been entirely cooperative with the government’s investigation since his arrest on January 26, 2021.

11. Upon further investigation, the FBI found while Bennett attempted to contact a Maryland chapter of the Proud Boys about becoming a member, it did not find evidence that Bennett is a member or associate of any organized chapter of the Proud Boys.

Dona Bissey:

11. After arriving at the Capitol and ascending the steps, the DEFENDANT participated in the protest and took photos of the other protestors, including those in or around the scaffolding on the western front of the building.

12. The DEFENDANT and Morgan-Lloyd then entered the Capitol building and walked through a hallway. While inside the Capitol building, the DEFENDANT appeared in a photo with Morgan-Lloyd and two other individuals, one of whom is holding a Trump campaign flag. The DEFENDANT later posted the photo on Facebook with the caption “Inside the Capitol Building.” The DEFENDANT also posted a picture of an elderly woman with a “Make America Great Again” hat and wrote “This is Our Warrior Linda. We stayed with her and her daughter Stacey all day. They are somewhat locals. When we Marched to Capitol she said “I’m going in” and she lead the way. We went in [] This photo taken at Capitol entry right before[.]” The Defendant also posted a screenshot of a Twitter post which stated “This is the First time the U.S. Capitol had been breached since it was attacked by the British in 1814” and wrote “We were inside for reals! Linda led the way!! She is a True Patriot and Warrior!!!”

13. On January 7, 2021, the DEFENDANT posted a photo on Facebook, tagging Morgan-Lloyd and another individual, and wrote “We are home. Thank You to ALL that messaged checking in and concerned. It was a day I’ll remember forever. I’m proud that I was a part of it! No Shame. BTW turn off the #FakeNews.”

14. On January 8, 2021, the DEFENDANT posted two photos from the western front of the Capitol building. The photo included images of protesters climbing the scaffolding and another other with a protestor holding a stolen and broken sign that read “Speaker of the House.” The DEFENDANT wrote on the post “This really happened! Anna Morgan-Lloyd took the photo.”

15. On January 11, 2021, the DEFENDANT posted a photo on Facebook which showed individuals walking down the steps of the Capitol building. The DEFENDANT wrote “On our way down” and tagged Morgan-Lloyd.

16. On February 24, 2021, the DEFENDANT was interviewed by law enforcement. The DEFENDANT admitted that she had entered the Capitol and remained for less than ten minutes. The DEFENDANT also admitted that she had a photo taken of herself within the building.

Anna Morgan-Lloyd:

On January 6, 2021, in response to a post by L.L.T.P, the DEFENDANT wrote, “I’m here. Best day ever. We stormed the capital building and me and Dona Bissey were in the first 50 people in.”

[snip]

The DEFENDANT also admitted that she used her phone to take photographs in and around the Capitol building and had a photograph taken of herself, Bissey, and two other individuals.

Valerie Ehrke:

At approximately 2:09 p.m. on January 6, 2021, the defendant entered the U.S. Capitol Building with a crowd. The defendant entered one of the hallways of the Capitol Building and took a video from the first-person perspective while she was there. She then uploaded that video to her Facebook page, with a caption reading, “We made it inside, right before they shoved us all out. I took off when I felt pepper spray in my throat! Lol.” A screengrab of that video is attached hereto:

Valerie Ehrke

Jordan Stotts:

11. At approximately 2:45 p.m., STOTTS entered the Capitol building through a door located to the left of the main entrance

12. Once inside the Capitol building, STOTTS walked to the Capitol Rotunda and stayed inside for approximately one hour.

13. While in the rotunda, STOTTS celebrated with other rioters and used his cell phone to take a video.

Robert Reeder:

10. On January 6, 2021, from the steps of the Capitol grounds, the DEFENDANT recorded a video in which he stated: “We’ve been getting tear gassed…thousands of people.” The DEFENDANT then appeared to chant: “Fight for Trump!”

11. As the DEFENDANT approached an open door of the Capitol, a high-pitched alarm can be heard in the background. Capitol Police Officers are seen standing along the wall in the entrance. At the threshold of the building, the DEFENDANT approached Capitol Police Officers and asked: “Is there anywhere where I can get water?” An officer responded: “We don’t have any water in here, sir. There’s some outside.” The DEFENDANT then walked past the Officers, opened an interior door, and proceeded into the Capitol building. From inside the Capitol, the DEFENDANT took numerous photos and videos from various rooms, hallways, and balconies.

12. Although the DEFENDANT briefly left the Capitol building, he then turned around and returned to it. At that time, the DEFENDANT recorded a video of himself chanting “USA!” with the crowd as he approaches the open doors to the Capitol building.

13. The DEFENDANT then recorded another video in which he appears to be within and near the Capitol rotunda near confrontations with Capitol Police Officers. The DEFENDANT recorded an assault on a Capitol Police Officer. The DEFENDANT seemingly told the Officer: “You need to retreat!”

14. After leaving the Capitol building, the DEFENDANT recorded a video from the Capitol grounds in which he stated: “I’m leaving now… I got tear gassed at least four times inside the Capitol…I saw the lady they say got shot, I walked right past her in a pool of blood. And it’s just…completely crazy in there.” The DEFENDANT also stated: “Just left the Capitol, I was one of the last people out. I was in there for over half an hour. I got gassed several times inside the Capitol, many times outside the Capitol. Got shot with pepper balls. It was fucking nuts. We had to do…ah… battle with the Police inside. It was crazy…absolutely insane.”

Jenny Cudd:

While inside of the U.S. Capitol building, Jennifer Ryan took numerous videos and photos from the Rotunda.

Michael Stepakoff:

The defendant can be seen on CCTV video entering the United States Capitol Building at approximately 3:00 PM on January 6, 2021 through a door marked “EXIT” on the interior of the door. While inside the U.S. Capitol Building, the defendant walked past a wooden structure that had been knocked to the ground. He can be seen taking approximately eight photographs using his cellular phone. The defendant exited the Capital Building approximately five minutes after he entered.

Reeder’s arrest affidavit suggests the exchange as he entered the Capitol took place around 2:40, so this may verify that the cops at the West Terrace Door who weren’t fighting protestors — raised in defense by a significant number of defendants — did instruct at least one to go outside.

Trespassers move in interesting ways

Jennifer Parks and Esther Schwemmer:

On January 6, 2021, after the “Stop the Steal” rally, Jennifer Parks and Esther Schwemmer, friends who traveled together from Kansas to Washington, D.C. to attend the rally, followed a crowd to the U.S. Capitol grounds. When they arrived on the Capitol’s grounds, they saw people running up to the doors of the Capitol and took pictures of themselves and others. They relocated to the east side of the Capitol and entered the building through an entry where the doors were broken and open. They went up a round staircase to the second floor and walked around for approximately 15 minutes. They took pictures inside the Capitol. They eventually left the Capitol when they were told to exit the building by a United States Capitol Police officer.

While I’m sure I’ve lost track of some of these misdemeanor guilty pleas, this post shows a good percentage of those who’ve pled already have offered testimony that in one way or another would be useful for further prosecutions. One of the only exceptions is Joshua and Jessica Bustle whose statement of offense largely focuses on their phones, video surveillance, and subsequent social media posts. Perhaps relatedly, in sentencing memos for the Bustles submitted last week, the government recommended three months of home confinement for Jessica (who called Mike Pence a traitor and called for a revolution after the riot) and one month of home confinement for Joshua.

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

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

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

John Pierce got fired by Kyle Rittenhouse

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

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

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

[snip]

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

[snip]

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

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

Pierce assembles a collection of characters for his screen play

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

1. Christopher Worrell: Christopher Worrell is a Proud Boy from Florida arrested on March 12. Worrell traveled to DC for the December MAGA protest, where he engaged in confrontational behavior targeting a journalist. He and his girlfriend traveled to DC for January 6 in vans full of Proud Boys paid for by someone else. He was filmed spraying pepper spray at cops during a key confrontation before the police line broke down and the initial assault surged past. Worrell was originally charged for obstruction and trespassing, but later indicted for assault and civil disorder and trespassing (dropping the obstruction charge). He was deemed a danger, in part, because of a 2009 arrest for impersonating a cop involving “intimidating conduct towards a total stranger in service of taking the law into his own hands.” Pierce first attempted to file a notice of appearance on March 18. Robert Jenkins (along with John Kelly, from Pierce’s firm) is co-counsel on the case. Since Pierce joined the team, he has indulged Worrell’s claims that he should not be punished for assaulting a cop, but neither that indulgence nor a focus on Worrell’s non-Hodgkins lymphoma nor an appeal succeeded at winning his client release from pre-trial detention.

2. William Pepe: William Pepe is a Proud Boy charged in a conspiracy with Dominic Pezzola and Matthew Greene for breaching the initial lines of defense and, ultimately, the first broken window of the Capitol. Pepe was originally arrested on January 11, though is out on bail. Pierce joined Robert Jenkins on William Pepe’s defense team on March 25. By April, Pierce was planning on filing some non-frivolous motions (to sever his case from Pezzola, to move it out of DC, and to dismiss the obstruction count).

3. Paul Rae: Rae is another of Pierce’s Proud Boy defendants and his initial complaint suggested Rae could have been (and could still be) added to the conspiracy indictments against the Proud Boys already charged. He was indicted along with Arthur Jackman for obstruction and trespassing; both tailed Joe Biggs on January 6, entering the building from the East side after the initial breach. Pierce filed to join Robert Jenkins in defending Rae on March 30.

4. Stephanie Baez: On June 9, Pierce filed his appearance for Stephanie Baez. Pierce’s interest in Baez’ case makes a lot of sense. Baez, who was arrested on trespassing charges on June 4, seems to have treated the January 6 insurrection as an opportunity to shop for her own Proud Boy boyfriend. Plus, she’s attractive, unrepentant, and willing to claim there was no violence on January 6. Baez has not yet been formally charged (though that should happen any day).

5. Victoria White: If I were prosecutors, I’d be taking a closer look at White to try to figure out why John Pierce decided to represent her (if it’s not already clear to them; given the timing, it may simply be because he believed he needed a few women defendants to tell the story he wants to tell). White was detained briefly on January 6 then released, and then arrested on April 8 on civil disorder and trespassing charges. At one point on January 6, she was filmed trying to dissuade other rioters from breaking windows, but then she was filmed close to and then in the Tunnel cheering on some of the worst assault. Pierce filed his notice of appearance in White’s case on June 10.

Ryan Samsel: After consulting with Joe Biggs, Ryan Samsel kicked off the riot by approaching the first barriers and — with several other defendants — knocking over a female cop, giving her a concussion. He was arrested on January 30 and is still being held on his original complaint charging him with assault and civil disorder. He’s obviously a key piece to the investigation and for some time it appeared the government might have been trying to persuade him that the way to minimize his significant exposure (he has an extensive criminal record) would be to cooperate against people like Biggs. But then he was brutally assaulted in jail. Detainees have claimed a guard did it, and given that Samsel injured a cop, that wouldn’t be unheard of. But Samsel seemed to say in a recent hearing that the FBI had concluded it was another detainee. In any case, the assault set off a feeding frenzy among trial attorneys seeking to get a piece of what they imagine will be a huge lawsuit against BOP (as it should be if a guard really did assault him). Samsel is now focused on getting medical care for eye and arm injuries arising from the assault. And if a guard did do this, then it would be a key part of any story Pierce wanted to tell. After that feeding frenzy passed, Pierce filed an appearance on June 14, with Magistrate Judge Zia Faruqui releasing his prior counsel on June 25. Samsel is a perfect defendant for Pierce, though (like Rittenhouse), the man badly needs a serious defense attorney. Update: On July 27, Samsel informed Magistrate Judge Zia Faruqui that he would be retaining new counsel.

6. James McGrew: McGrew was arrested on May 28 for assault, civil disorder, obstruction, and trespassing, largely for some fighting with cops inside the Rotunda. His arrest documents show no ties to militias, though his arrest affidavit did reference a 2012 booking photo. Pierce filed his appearance to represent McGrew on June 16.

Alan Hostetter: John Pierce filed as Hostetter’s attorney on June 24, not long after Hostetter was indicted with five other Three Percenters in a conspiracy indictment paralleling those charging the Oath Keepers and Proud Boys. Hostetter was also active in Southern California’s anti-mask activist community, a key network of January 6 participants. Hostetter and his defendants spoke more explicitly about bringing arms to the riot, and his co-defendant Russell Taylor spoke at the January 5 rally. On August 3, Hostetter replaced Pierce.

7, 8, 9. On June 30, Pierce filed to represent David Lesperance, and James and Casey Cusick. As I laid out here, the FBI arrested the Cusicks, a father and son that run a church, largely via information obtained from Lesperance, their parishioner. They are separately charged (Lesperance, James Cusick, Casey Cusick), all with just trespassing. The night before the riot, father and son posed in front of the Trump Hotel with a fourth person besides Lesperance (though Lesperance likely took the photo).

10. Kenneth Harrelson: On July 1, Pierce filed a notice of appearance for Harrelson, who was first arrested on March 10. Leading up to January 6, Harrelson played a key role in Oath Keepers’ organizing in Florida, particularly meetings organized on GoToMeeting. On the day of the riot, Kelly Meggs had put him in charge of coordinating with state teams. Harrelson was on the East steps of the Capitol with Jason Dolan during the riot, as if waiting for the door to open and The Stack to arrive; with whom he entered the Capitol. With Meggs, Harrelson moved first towards the Senate, then towards Nancy Pelosi’s office. When the FBI searched his house upon his arrest, they found an AR-15 and a handgun, as well as a go-bag with a semi-automatic handgun and survivalist books, including Ted Kaczynski’s writings. Harrelson attempted to delete a slew of his Signal texts, including a video he sent Meggs showing the breach of the East door. Harrelson had previously been represented by Nina Ginsberg and Jeffrey Zimmerman, who are making quite sure to get removed from Harrelson’s team before Pierce gets too involved.

11. Leo Brent Bozell IV: It was, perhaps, predictable that Pierce would add Bozell to his stable of defendants. “Zeeker” Bozell is the scion of a right wing movement family including his father who has made a killing by attacking the so-called liberal media, and his grandfather, who was a speech writer for Joseph McCarthy. Because Bozell was released on personal recognizance there are details of his actions on January 6 that remain unexplained. But he made it to the Senate chamber, and while there, made efforts to prevent CSPAN cameras from continuing to record the proceedings. He was originally arrested on obstruction and trespassing charges on February 12; his indictment added an abetting the destruction of government property charge, the likes of which have been used to threaten a terrorism enhancement against militia members. Pierce joined Bozell’s defense team (thus far it seems David B. Deitch will remain on the team) on July 6.

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

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

14. Kevin Tuck: On July 20, Pierce filed a notice of appearance for Kevin Tuck, Nathaniel’s father and still an active duty cop when he was charged.

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

16. Jeramiah Caplinger: On July 26, Pierce filed a notice of appearance for Jeramiah Caplinger, who drove from Michigan and carried a flag on a tree branch through the Capitol.

Deborah Lee: On August 23, Pierce filed a notice of appearance for Deborah Lee, who was arrested on trespass charges months after her friend Michael Rusyn. On September 2, Lee chose to be represented by public defender Cara Halverson.

17. Shane Jenkins: On August 25, Pierce colleague Ryan Marshall showed up at a status hearing for Jenkins and claimed a notice of appearance for Pierce had been filed the night before. In that same hearing, he revealed that Pierce was in a hospital with COVID, even claiming he was on a ventilator and not responsive. The notice of appearance was filed, using Pierce’s electronic signature, on August 30, just as DOJ started sending out notices that all Pierce cases were on hold awaiting signs of life. Jenkins is a felon accused of bringing a tomahawk to the Capitol and participating in the Lower West Tunnel assaults on cops.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Or maybe this is a MyPillow defense?

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

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

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

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

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

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

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

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

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

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

Zip Tie Guy Eric Munchel Gets a Second Chance at Release

The DC Circuit just remanded the case of Zip Tie Guy Eric Munchel and his mother Lisa Eisenhart for reconsideration of their bid for release. Robert Wilkins wrote the opinion, joined by Judith Rogers; Gregory Katsas dissented in some but not all of the opinion.

I wrote here and here about how this was a close case. As such, this opinion will provide important guideposts for other January 6 making similar arguments.

The opinion agreed that January 6 posed an urgent risk to our democracy, generally presenting a broad authority to detain people. But it also emphasized that only some of the participants in the insurrection pose enough of a danger to afford exceptional authority to detain people.

It cannot be gainsaid that the violent breach of the Capitol on January 6 was a grave danger to our democracy, and that those who participated could rightly be subject to detention to safeguard the community. Cf. Salerno, 481 U.S. at 748 (“[I]n times of war or insurrection, when society’s interest is at its peak, the Government may detain individuals whom the government believes to be dangerous.” (citations omitted)). But we have a grave constitutional obligation to ensure that the facts and circumstances of each case warrant this exceptional treatment.

In the case of Munchel and his mom, the opinion found that the analysis of the danger that Munchel and his mom present to the community was not forward looking, and because they had not done a number of things — actually broken through barricades, assaulted cops, planned the operation, or abetted that process — their dangerousness was not sufficient to make their unwillingness to follow release conditions a factor. In particular, without the special circumstances of the vote certification and the violent mob, the mother and son likely would not pose the same threat to our country.

Here, the District Court did not adequately demonstrate that it considered whether Munchel and Eisenhart posed an articulable threat to the community in view of their conduct on January 6, and the particular circumstances of January 6. The District Court based its dangerousness determination on a finding that “Munchel’s alleged conduct indicates that he is willing to use force to promote his political ends,” and that “[s]uch conduct poses a clear risk to the community.” Munchel, 2021 WL 620236, at *6. In making this determination, however, the Court did not explain how it reached that conclusion notwithstanding the countervailing finding that “the record contains no evidence indicating that, while inside the Capitol, Munchel or Eisenhart vandalized any property or physically harmed any person,” id. at *3, and the absence of any record evidence that either Munchel or Eisenhart committed any violence on January 6. That Munchel and Eisenhart assaulted no one on January 6; that they did not enter the Capitol by force; and that they vandalized no property are all factors that weigh against a finding that either pose a threat of “using force to promote [their] political ends,” and that the District Court should consider on remand. If, in light of the lack of evidence that Munchel or Eisenhart committed violence on January 6, the District Court finds that they do not in fact pose a threat of committing violence in the future, the District Court should consider this finding in making its dangerousness determination. In our view, those who actually assaulted police officers and broke through windows, doors, and barricades, and those who aided, conspired with, planned, or coordinated such actions, are in a different category of dangerousness than those who cheered on the violence or entered the Capitol after others cleared the way.

[snip]

The District Court also failed to demonstrate that it considered the specific circumstances that made it possible, on January 6, for Munchel and Eisenhart to threaten the peaceful transfer of power. The appellants had a unique opportunity to obstruct democracy on January 6 because of the electoral college vote tally taking place that day, and the concurrently scheduled rallies and protests. Thus, Munchel and Eisenhart were able to attempt to obstruct the electoral college vote by entering the Capitol together with a large group of people who had gathered at the Capitol in protest that day. Because Munchel and Eisenhart did not vandalize any property or commit violence, the presence of the group was critical to their ability to obstruct the vote and to cause danger to the community. Without it, Munchel and Eisenhart—two individuals who did not engage in any violence and who were not involved in planning or coordinating the activities— seemingly would have posed little threat. The District Court found that appellants were a danger to “act against Congress” in the future, but there was no explanation of how the appellants would be capable of doing so now that the specific circumstances of January 6 have passed. This, too, is a factor that the District Court should consider on remand.

I suspect mom, at least, will get bail on remand. And I suspect other defendants will try to argue (some with likely success) that they fit the same categories as Munchel and his mom — willing participants in an insurrection, but not key enough players to detain awaiting trial.

Among the principles it lays out:

January 6 was a Constitutional risk, but some defendants were only a threat on that day with that mob

As noted, the Circuit agrees that January 6 presented such a risk to the country that extraordinary detention authorities may be necessary. It included a list of circumstances — similar to the ones that Beryl Howell laid out — that reach this heightened level of risk. Some defendants (particularly the far right lone actors who did not engage in violence personally) will likely be able to ask for review of their own detention. But others — including some of the Oath Keepers — will have the case for their detention reinforced because of their role aiding and abetting a concerted attack on democracy.

DC District judges can review detention remotely

While dicta, a footnote complains that it took so long — until they had been transported to DC — for the two to have a detention review in DC. It asks why a District judge could not have conducted the review remotely.

While COVID-19 issues caused a delay in the appellants’ transport to the District of Columbia, the record does not indicate why a D.C. District Judge could not have heard this matter prior to February 17, even if the appellants were in another location. Ultimately, this issue, while troubling, is not presented as a ground for reversal in this appeal.

This is something that has come up in other cases, repeatedly. This panel, at least, seems to agree that a DC District judge can review detention remotely.

DC District judges don’t have to defer to the local Magistrates’ decisions if there’s new evidence

Munchel and his mother argued that once the Magistrate in Tennessee judged them not to be a danger, the District had no authority to review that determination. The Circuit disagrees, but only with regards to the circumstances of this case, where the government provides new evidence to the District.

The statute concerning review of a Magistrate Judge’s release order says nothing about the standard of the district court’s review, see 18 U.S.C. § 3145(a), and we have not squarely decided the issue.3 We need not break new ground in this case, because as the appellants maintain in their briefing, Munchel Reply Mem. 8, n.3, the government submitted substantial additional evidence to the district judge that had not been presented to the Magistrate Judge, including the 50- minute iPhone video, a partial transcript of the video, and several videos from Capitol CCTV.4 As a result, this was not an instance where the District Court made its dangerousness finding based on the same record as was before the Magistrate Judge. Here, the situation was more akin to a new hearing, and as such, the issue before the District Court was not really whether to defer (or not) to a finding made by the Magistrate Judge on the same evidentiary record.

3 This court stated long ago, in dictum, in a case arising under the predecessor Bail Reform Act that district courts review such prior determinations with “broad discretion.” Wood v. United States, 391 F.2d 981, 984 (D.C. Cir. 1968) (“Evaluating the competing considerations is a task for the commissioner or judge in the first instance, and then the judges of the District Court (where they have original jurisdiction over the offense) have a broad discretion to amend the conditions imposed, or to grant release outright, if they feel that the balance has been improperly struck.”).

Before we’re done, I wouldn’t be surprised if the DC Circuit is asked to weigh in directly on the standard of review here.

DC District judges can consider whether a defendant will abide by release conditions

Munchel and his mother had tried to limit when a District judge can consider whether they will abide by release conditions, not to reconsider bail but only to revoke it.

Second, we reject the argument that the District Court inappropriately relied on a finding that appellants were unlikely to abide by release conditions to detain them, because that factor is applicable only to revocation of pretrial release. The District Court’s finding as to appellants’ potential compliance is relevant to the ultimate determination of “whether there are conditions of release that will reasonably assure . . . the safety of any other person and the community.” 18 U.S.C. § 3142(f) and (g). Indeed, other courts have found a defendant’s potential for compliance with release conditions relevant to the detention inquiry.

[snip]

While failure to abide by release conditions is an explicit ground for revocation of release in 18 U.S.C. § 3148(b), it defies logic to suggest that a court cannot consider whether it believes the defendant will actually abide by its conditions when making the release determination in the first instance pursuant to 18 U.S.C. § 3142.

This has come up with other defendants. That said, this opinion as a whole says that a refusal to abide by release conditions by itself is not enough to detain someone. This part of the ruling will be particularly impactful for those detained because either a belief in QAnon or Nazism suggests a general disdain for our existing government.

A taser counts as a weapon

Munchel and his mother also argued that their alleged crimes don’t merit detention because the taser Munchel brought with him is not a weapon. Not only did the Circuit disagree, but it also readily applied the analysis to Eisenhart’s abetting exposure.

Third, we reject Munchel and Eisenhart’s arguments that the charged offenses do not authorize detention. Under 18 U.S.C. § 3142(f)(1)(E), detention is permitted if the case involves “any felony . . . that involves the possession or use of a . . . dangerous weapon.” (emphasis added). Two of the charges in the indictment meet this description: Count Two— entering a restricted building “with intent to impede and disrupt the orderly conduct of Government business . . . while armed with a dangerous weapon,” in violation of 18 U.S.C. § 1752(a)(1) and (a)(2) and 18 U.S.C. § 2 (aiding and abetting charge for Eisenhart); and Count Three—violent entry or disorderly conduct, again “while armed with a dangerous weapon,” in violation of 40 U.S.C. § 5104(e)(1) and (e)(2) and 18 U.S.C. § 2. Indictment, ECF No. 21 at 2. The Bail Reform Act thus explicitly authorizes detention when a defendant is charged with committing certain felonies while possessing a dangerous weapon, as is alleged in this indictment.5

5 Eisenhart’s argument that a taser is not a dangerous weapon— which Eisenhart raises for the first time in reply, and which Munchel seeks to adopt in his reply—is without merit. The relevant statute, 40 U.S.C. § 5104(a)(2)(B), defines the term “dangerous weapon” to include “a device designed to expel or hurl a projectile capable of causing injury to individuals or property. . . .” While the record contains no evidence or proffer as to how Munchel’s taser operates, a taser is commonly understood as a device designed to expel a projectile capable of causing injury to individuals. See Cantu v. City of Dothan, 974 F.3d 1217, 1224–25 (11th Cir. 2020); Mattos v. Agarano, 661 F.3d 433, 443 (9th Cir. 2011) (“[A] taser uses compressed nitrogen to propel a pair of ‘probes’—aluminum darts tipped with stainless steel barbs connected to the taser by insulated wires—toward the target at a rate of over 160 feet per second. Upon striking a person, the taser delivers a 1200 volt, low ampere electrical charge. The electrical impulse instantly overrides the victim’s central nervous system, paralyzing the muscles throughout the body, rendering the target limp and helpless.” (internal alterations and quotation marks omitted)). Thus, at this stage, the evidence sufficiently demonstrates that Munchel’s taser is a dangerous weapon under the statute.

This ruling matters specifically for Richard “Bigo” Barnett (who also brought a taser with him), but also holds that the weapons enhancement on the 1752 and 5104 charges that other defendants face will merit detention. The Circuit also readily approved Eisenhart’s exposure on account of Munchel’s taser. That matters because many defendants are charged with abetting certain conduct that merits detention.

Detention analysis remains individualized

Munchel and his mom, like virtually all defendants arguing for release, have compared their own case to that of others who got released. Because Munchel only raised this in his reply, the Circuit didn’t address the comparison per se. But said that the District Court is in better position to review such claims.

Finally, Munchel and Eisenhart argue that the government’s proffer of dangerousness should be weighed against the fact that the government did not seek detention of defendants who admitted they pushed through the police barricades and defendants charged with punching officers, breaking windows, discharging tasers at officers, and with planning and fundraising for the riot. See Munchel Reply Mem. at 9–12. Appellants did not raise this claim before the District Court and the government did not substantively respond to it on appeal because Appellants raised it for the first time in Munchel’s reply. Whatever potential persuasiveness the government’s failure to seek detention in another case carries in the abstract, every such decision by the government is highly dependent on the specific facts and circumstances of each case, which are not fully before us. In addition, those facts and circumstances are best evaluated by the District Court in the first instance, and it should do so should appellants raise the issue upon remand.

As several people watching the hearing for Connie Meggs’ attempt to get release, every detention fight going forward will have to account for this one. With its broad support for holding conspirators accountable for the violence of others, it may not help Meggs all that much. But it will crystalize these ongoing detention disputes.

Update: I’m wrong. Judge Amit Mehta just released Meggs.

The Three Key Details the Proud Boy Unindicted Co-Conspirator Likely Revealed to Prosecutors

By March 1, the government had three pieces of evidence that form a key part of a conspiracy indictment accusing Ethan Nordean, Joe Biggs, Zachary Rehl, and Charles Donohoe of conspiring to breach the Capitol and by doing so, delaying the certification of the vote:

  • The Proud Boys used Baofeng radios set to a specific channel (which channel prosecutors knew)
  • After Enrique Tarrio’s arrest, Ethan Nordean got put in charge of the January 6 operation
  • The gang had a plan to split up to optimize the chances of success

A detention motion for Nordean submitted on that day included all three of these details. It described how the Proud Boys distributed Baofeng radios to use in the operation.

Arrangements were made to program and distribute multiple Baofeng radios5 for use by Proud Boys members to communicate during the event. Baofeng is a Chinese communications equipment manufacturer. Baofeng radios can be programmed to communicate on more than 1,000 different frequencies, making them far more difficult to monitor or overhear than common “walkie talkie” type radios. Specific radio frequencies were communicated to the Proud Boys.

5 Law enforcement recovered a Baofeng radio from Defendant’s home during the execution of a search warrant—the Baofeng radio recovered from Defendant’s home was still tuned to frequency that had been communicated to the group.

[snip]

The group led by Defendant arrived at the east side of the Capitol before noon. Several of the men in the group were holding Baofeng radios. Others had them clipped to their belts or jackets.

It described how Nordean was put in charge after Tarrio’s arrest.

Moreover, following the arrest of the Proud Boys’ Chairman on January 4, 2021, Defendant was nominated from within to have “war powers” and to take ultimate leadership of the Proud Boys’ activities on January 6, 2021.

[snip]

On January 4, 2021, Henry “Enrique” Tarrio, the self-proclaimed “Chairman” of the Proud Boys was arrested shortly after arriving in Washington, D.C., pursuant to a warrant issued by D.C. Superior Court. In communications between Proud Boys members following Tarrio’s arrest, it was acknowledged that Defendant would be among those that led the Proud Boys on the ground on January 6, 2021.

And it described a decision to split people up in an effort to increase the likelihood of actually shutting down the certification of the vote.

As noted more fully below, Defendant—dressed all in black, wearing a tactical vest—led the Proud Boys through the use of encrypted communications and military-style equipment, and he led them with the specific plans to: split up into groups, attempt to break into the Capitol building from as many different points as possible, and prevent the Joint Session of Congress from Certifying the Electoral College results.

[snip]

In order to increase the odds that their plan would succeed, Defendant and those Proud Boys following him dressed “incognito” and spread out to many different locations from which they could force entry into the Capitol. Defendant and others responsible for the January 6 Proud Boys event likely knew from experience that their typical tactic of marching in “uniform,” and in unison, would draw a concentrated law enforcement response to their location. By blending in and spreading out, Defendant and those following him on January 6 made it more likely that either a Proud Boy—or a suitably-inspired “normie”—would be able to storm the Capitol and its ground in such a way that would interrupt the Certification of the Electoral College vote

Even after prosecutors shared these damning claims, their bid to keep Nordean in jail failed. Nordean’s wife filed a declaration stating in part that Nordean obtained the radio on January 7 and, to her knowledge, he did not possess such a radio before that date.

An indictment against Nordean obtained on March 3 to comply with the Speedy Trial Act (but not released publicly until after the detention hearing) mentioned none of that.

And at the March 3 detention hearing before Beryl Howell, according to Zoe Tillman, the government withdrew the claim that Nordean had the Proud Boys split into groups as a factor for that detention hearing. In what the WaPo described as, “a remarkable stumble for prosecutors,”Judge Howell released Nordean to home detention, saying there was little evidence that Nordean played that leadership role.

Nordean “was a leader of a march to the Capitol. But once he got there it is not clear what leadership role this individual took at all for the people who went inside,” Howell said. “Evidence that he directed other defendants to break into or enter the Capitol is weak, to say the least.”

Nordean’s release marked a stumble for prosecutors, who have cast him as a key figure based on what Howell agreed were “ominous” communications before Jan. 6 that they said indicated he and other Proud Boys were planning “violent action” to overwhelm police and force entry to the Capitol. The judge’s decision sets back for now the government’s efforts to establish that there was a wider plot to that end.

[snip]

“The government has backed down from saying that he directly told them to split into groups and that they had this strategic plan,” Howell remarked.

Howell said that although Nordean’s release was a “close call,” she agreed with the defense that “there’s no allegation that the defendant caused injury to any person, or that he even personally caused damage to any particular property.”

Prosecutors claimed they had this evidence on March 1. But after failing to present it at that March 3 hearing, Nordean got released.

On March 15, the judge assigned to the case after Nordean got indicted, Timothy Kelly, issued an order delaying the arraignment scheduled for the next day. He offered no explanation.

What didn’t become clear until this week is that, on March 10, the government obtained the superseding indictment against Nordean and others. And then, on March 12, the government asked Judge Kelly to delay Nordean’s arraignment on his original indictment because of the superseding indictment. Prosecutors explained that revealing the indictment ahead of time would risk alerting Rehl and Donohoe before they could be arrested and their houses searched.

On March 10, 2021, a federal grand jury sitting in the District of Columbia returned a Superseding Indictment charging Defendant, and three co-defendants (two of whom were not previously charged), with Conspiracy, in violation of 18 U.S.C. § 371; Obstruction of an Agency Proceeding, in violation of 18 U.S.C. §§ 1512(c)(2), and 2; Obstructing Law Enforcement During a Civil Disorder, in violation of 18 U.S.C. §§ 231(a)(3), and 2; 18 U.S.C. §§ 1361, and 2; Entering and Remaining in a Restricted Building or Grounds, in violation of 18 U.S.C. § 1752(a)(1); and Disorderly and Disruptive Conduct in a Restricted Building or Grounds, in violation of 18 U.S.C. § 1752(a)(2).

The Superseding Indictment is under seal, pending the arrest of newly charged defendants and the execution of search warrants. Law Enforcement anticipates executing the arrests and search warrants of the new defendants in a coordinated operation on Wednesday, March 17, 2021. Once the arrests are executed, the Superseding Indictment will be unsealed.

The evidence the superseding indictment provides to substantiate claims first made on March 1 may explain an even bigger reason why prosecutors didn’t provide their evidence for those three claims in time to keep Nordean in custody: They had an unindicted co-conspirator (presumably someone cooperating with prosecutors) who was, along with the four conspiracy defendants, on an encrypted channel created after Enrique Tarrio’s arrest on January 4 that Proud Boy leaders used to continue planning for January 6. That unindicted co-conspirator was personally involved in all three details included in that detention memo against Nordean. He helped divvy up the Proud Boys to be spread out during the January 6 operation.

39. On after Chairman’s January 4, 2021, shortly after Proud Boys Chairman’s arrest pursuant to a warrant issued by D.C. Superior Court, DONOHOE expressed concern that encrypted communications that involved Proud Boys Chairman would be compromised when law enforcement examined Proud Boys Chairmans’ phone. DONOHOE then created a new channel on the encrypted messaging application, entitled, “New MOSD,” and took steps to destroy or “nuke” the earlier channel. After its creation, the “New MOSD” channel included NORDEAN, BIGGS, REHL, DONOHOE, and a handful of additional members.

40. On January 2021, at 7:15 p.m., DONOHOE posted a message on various encrypted messaging channels, including New MOSD, which read, “Hey have been instructed and listen to me real good! There is no planning of any sorts. I need to be put into whatever new thing is created. Everything is compromised and we can be looking at Gang charges.” DONOHOE then wrote, “Stop everything immediately” and then “This comes from the top.”

41. On January 4, 2021, at 8:20 p.m., an unindicted co-conspirator (“UCC-1”) posted to New MOSD channel: “We had originally planned on breaking the guys into teams. Let’s start divying them up and getting baofeng channels picked out.”

Note: If “New MOSD” was a channel of State leaders of the Proud Boys, it would likely have included Nicholas Ochs, who heads the Hawaii chapter of the Proud Boys. Ochs was the first senior Proud Boy to be arrested, on January 7, at the airport when he arrived back in Hawaii (and therefore carrying anything he had with him at the insurrection, potentially including his cell phone and any radios he kept). Kathryn Rakoczy, who has since moved onto the team prosecuting the Oath Keepers, was the original prosecutor on Ochs’ case. But now Christopher Berridge, who is on all the other Proud Boy cases but not the Nordean and Biggs one, is prosecuting Ochs. Ochs is charged in a parallel conspiracy indictment, with the very same goal and many of the same means as the Nordean and Biggs one, but which for some reason was not identified as a related case to the other three Proud Boy ones and so was not assigned to Judge Kelly; Judge Howell is presiding over Ochs’ case. Ochs has a superb defense attorney, Edward McMahon. Many of these details, which make the curious treatment of the Ochs-DeCarlo conspiracy indictment clear, are in this post or this expanded table.

Whoever the unindicted co-conspirator is, he’s the one who set the channel of the Baofeng radios the night before the insurrection. And he’s the one who stated that Nordean was in charge.

46. At 9:03 p.m., REHL notified NORDEAN, BIGGS, DONOHOE and others that he had arrived in Washington, D.C. DONOHOE responded by requesting one of the radios that REHL had brought.

47.  At 9:09 p.m., UCC-1 broadcast a message to MOSD and Boots on the Ground channels that read: “Stand by for the shared baofeng channel and shared zello channel, no Colors, be decentralized and use good judgement until further orders” UCC-1 also wrote, Rufio is in charge, cops are the primary threat, don’t get caught by them or BLM, don’t get drunk until off the street.” UCC-1 then provided a specific radio frequency of 477.985.

It is highly likely that prosecutors learned the three details included in that detention motion — that Nordean had been put in charge, that the Proud Boys were using Baofeng radios set to frequency 477.985, and that part of the plan was to disperse the men to increase chances of success — from the unindicted co-conspirator and or devices seized from him when he was first arrested.

And it took them less than two months to learn those details of the plot.

Update: The government has moved to detain both Nordean and Biggs now. Those motions cite from the Telegram chats the Proud Boys used to organize the day before the attack, including (I’ve combined them from both motions):

On January 5, between 9:30 – 9:32am [Biggs] stated “What are the teams. I keep hearing team [sic] are picked already.” A few minutes later, [Biggs] stated “Who are we going to be with. I have guys with me in other chats saying teams are being put together.”

On January 5, at 9:32am, a member of a Proud Boys Telegram group stated “It seems like our plan has totally broken down and rufio has taken control as a singke [sic] point of contact.”

On January 5, between 5:22 – 5:25pm, [Biggs] stated “Woth [sic] [coconspirator Ethan Nordean] trying to get numbers so we can make a plan.” Defendant then stated “Just trying to get our numbers. So we can plan accordingly for tonight and go over tomorrow’s plan.”

On January 5, at 5:52pm, [Biggs] stated “We are trying to avoid getting into any shit tonight. Tomorrow’s the day” and “I’m here with [co-conspirator Nordean] and a good group[.]”

On January 5, at 9:07pm, co-conspirator Charles Donohoe asked “Hey who’s boots on ground with a plan RN [ … ] Guys are asking.” A participant in the encrypted chat stated “Supposed to be Rufio.”

Within minutes, an unindicted co-conspirator broadcast a message to those in the group chat, “Rufio is in charge, cops are the primary threat, don’t get caught by them or BLM, don’t get drunk until off the street.”

On January 5, between 9:17 and 9:20pm, [Biggs] stated “We just had a meeting woth [sic] a lot of guys. Info should be coming out” and then “I was able to rally everyone here together who came where I said” and then, “We have a plan. I’m with [co-conspirator Nordean].”

On January 5, at 9:34pm [Biggs] told co-conspirator Charles Donohoe to communicate to Proud Boys members a message stating that the group in Washington, D.C. would meet at the Washington Monument at 10am on January 6.

On the morning of January 6, Donohoe stated that he was on his way to the Washington Monument, and “I have the keys until Rufio and [co-conspirator Zachary Rehl] show up.”

Update: As I note in a footnote to this post, Nicholas Ochs can’t be the unindicted co-conspirator. That’s true for two reasons. First, because DOJ does not believe UCC-1 was at the Capitol on January 6 (though doesn’t say where he was). DOJ knows Ochs was inside the Capitol. Also, DOJ has now started treating all the Proud Boy conspiracies as the same conspiracy. So Ochs could not, then, be considered un-indicted in that conspiracy.

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.

A Tale of Two Zip-Tie Guys: Criminal Protestor or Armed Insurrectionist?

There was a fair amount of disbelief last week when Eric Munchel, better known as Zip-Tie Guy, was given bail by a magistrate judge in Tennessee. But as I noted, the evidence as presented to Judge Chip Frensley did not allege preplanning and did not show Munchel engaged in violence. As laid out in the detention memo, Munchel owns an arsenal of guns, but they are all legal. As such, Frensley’s decision was probably correct.

As I noted in an update to that post, however, the evidence prosecutors presented to obtain the emergency stay of Munchel’s release did include an act of violence, targeted at Bloomberg reporter William Turton, who filmed Munchel in the Grand Hyatt after the riot.

On the evening of January 6, 2021, after the insurrection, an individual posted a video of the Grand Hyatt hotel lobby on Twitter. The person then posted a message that read: “After I took this video, several Trump supporters harassed me and tried to follow me to my room. One accused me of being ‘antifa.’3 Hotel security intervened and moved me to new room. What a weird day.” See https://twitter.com/WilliamTurton/status/1346980284252745729 (Last accessed on January 23, 2021). The person added: “The Trump supporters demanded that I delete the video. One woman flashed her taser at me, and threatened to mace me.” See https://twitter.com/WilliamTurton/status/1347024856416714752 (last viewed January 23, 2021). Two days later, on January 8, based on another video from the Grand Hyatt posted to social media, the person identified the defendant as “one of the people in the hotel lobby who demanded I delete the video, put his hands on me, and screamed at me . . . .” See https://twitter.com/WilliamTurton/status/1347699125408641024 (last viewed January 23, 2021); https://twitter.com/WilliamTurton/status/1347699345345417217 (last viewed January 23, 2021). Evidence of this encounter was not presented at the preliminary and detention hearing in the Middle District of Tennessee.

There’s a more important difference between the detention motion submitted in Tennessee and the one submitted in DC, beyond the fact that one was presented in a conservative state and the other was presented to a Democratically appointed judge in the city targeted in the insurrection.

The initial detention motion describes Munchel’s actions as those of a protestor who committed crimes in the process of protesting, while threatening violence.

The United States of America, by and through its attorney, the United States Attorney for the Middle District of Tennessee, respectfully files this memorandum in support of pre-trial detention. The defendant, Eric MUNCHEL, traveled to Washington, D.C. to attend the “Stop the Steal” rally on or about January 6, 2021, where he intended to protest the outcome of the 2020 Presidential election. MUNCHEL was prepared for conflict: as he told a reporter, he was ready to “rise up” and “fight if necessary.” After the rally concluded, MUNCHEL—who was dressed in tactical gear and carried a taser on his hip, and stashed other “weapons” in a tactical bag outside the Capitol—unlawfully entered the U.S. Capitol along with a mob of rioters who smashed windows and broke through doors. MUNCHEL gleefully acquired several sets of plastic handcuffs as he walked through the Capitol and entered the Senate chamber, where only moments earlier the Vice President of the United States was certifying the results of the 2020 Presidential election. In the Senate gallery, MUNCHEL stood with a crowd whose members shouted “Treason!” and lamented the disappearance of lawmakers from the chamber moments earlier. MUNCHEL’s conduct here was dangerous and extremely serious. This Court should adopt the recommendation of the Pretrial Services Office and detain MUNCHEL pending trial. [my emphasis]

The first paragraphs of the emergency motion, by contrast, describe him as one of a concerted pack of insurgents who successfully used terror to halt constitutionally mandated proceedings.

Armed with a taser and clad for battle in fatigues, a tactical vest, combat boots, gloves, and a gaiter that revealed only his eyes, the defendant, Eric Munchel, stormed the United States Capitol on January 6, 2021. Upon penetrating the building through a door breached by insurgents, the defendant grabbed a handful of Capitol Police flexicuffs and exclaimed: “Zip ties. I need to get me some of them mother—-s!” Then, with his co-conspirator, Lisa Eisenhart—who also wore a tactical vest and took flexicuffs—the defendant joined a group of insurgents searching for Members of Congress. Surrounded by insurgents exhorting veiled threats such as “Treason!”, “Anybody home?”, “They’re cowards!”, and “Are you afraid?”, the defendant infiltrated the Senate chamber—only minutes after the Senate body, including the Vice President of the United States, had been evacuated. The invasion halted the proceedings of a Joint Session of Congress, which had convened to certify the Electoral College vote as required by the Twelfth Amendment. [my emphasis]

A later paragraph discounts the claim that Munchel intended to do nothing more than protest.

First, the nature and circumstances of the offense involve fear, intimidation, and violence— directed at law enforcement, elected public officials, and the entire country. The defendant can make no serious claim that he went to the Capitol on January 6 intending to engage in peaceful protest or civil disobedience. Instead, the evidence supports the conclusion that he intended to contribute to chaos, obstruct the Electoral College certification, and sow fear. This is illustrated by the defendant’s preparation before reaching the Capitol and expressly stated intent: the defendant dressed in combat attire from head to toe; armed himself with a taser (and, appearing from his own cell phone video and audio recording, a more dangerous weapon); and told a reporter that his intent in going to the Capitol was “a kind of flexing of muscles” and that he was ready to “fight if necessary.” Once at the Capitol, the defendant’s conduct was consistent with that expressly stated intent: the defendant helped and encouraged other insurgents to ascend a wall to access the Capitol; exclaimed that he was “F—ing ready to f–k s–t up”; affirmed cries of “Treason” by other insurgents; responded to the chaos by exclaiming, “I guess they thought we were playing!”; stormed into the Capitol through a breached door; grabbed Capitol Police plastic flexicuffs, comprehending that they are instruments of restraint and kidnapping; marched throughout the Capitol searching for Members of Congress who he believed had committed “Treason”; and infiltrated the Senate chamber. The nature and circumstances of the alleged offenses all indicate forethought and specific intent to obstruct a congressional proceeding through fear, intimidation, and, if necessary, violence. These threads—planning, forethought, intent—are all indicative of a capacity and willingness to repeat the offense and pose a clear threat to community safety. As the defendant himself told The Times reporter, “[t]he point of getting inside the building [was] to show them that we can, and we will” (emphasis added).

As with her son, the government told two different stories about the actions of Munchel’s mother, Lisa Eisenhart, who like him was first granted bail then detained on an emergency motion.

The introductory paragraph of her TN detention motion mentions her boast that she was willing to die rather than live under oppression. But even where it reviews her language in more depth later in the filing, it portrays as it as mere, “disillusionment with the outcome of the 2020 Presidential election,” not a willingness to overthrow the Constitutional order because of it.

The defendant, Lisa EISENHART, traveled to Washington, D.C. to attend the “Stop the Steal” rally on or about January 6, 2021, where she intended to protest the outcome of the 2020 Presidential election. EISENHART was prepared for conflict: as she told a reporter, she would rather “die” and “fight” than “live under oppression.”

[snip]

EISENHART also made statements evincing an intent to engage in violent conduct, and even sacrificing her own life, because of her disillusionment with the outcome of the 2020 Presidential election. [my emphasis]

And as the emergency motion for her son described his own act of violence, Eisenhart’s emergency detention motion describes her approval of the violence around her. (Munchel’s federal defender got prosecutors to admit at his bail hearing that his mom voiced more overt support for violence than he espoused; he even pointedly called out, “Don’t break shit,” … “No vandalizing shit”.)

Down the road, prosecutors will describe these statements from her as one after another agreement with others to engage in violent insurrection.

The nature and circumstances of the offense involve fear, intimidation, and violence— directed at law enforcement, elected public officials, and the entire country. The defendant can make no serious claim that she went to the Capitol on January 6 intending to engage in peaceful protest or civil disobedience. Instead, the evidence supports the conclusion that she intended to contribute to chaos, obstruct the Electoral College certification, and sow fear. Specifically, Eisenhart, dressed for combat in a tactical or bulletproof vest, stormed the Capitol building with other insurgents and:

  • carried dangerous “weapons” onto Capitol grounds and stashed them before storming the Capitol building, because “We’re going straight to federal prison if we go in there with weapons”;
  • encouraged insurgents to climb a Capitol wall and storm inside, exhorting: “Yeah, go up in there. You can go up in there now”;
  • encouraged Munchel to go inside the Capitol despite knowing that Capitol Police were trying to keep insurgents out—including by using tear gas (“we’re going in”; “the [tear] gas isn’t bad”);
  • cheered on another insurgent who she understood to have “punched two of them in the face”—likely a reference to Capitol Police;
  • celebrated as her “best day” an assertion by another insurgent that Members of Congress had been tear gassed (“That is [unintelligible] my best day, to know they got tear gassed.”);
  • grabbed Capitol Police flexicuffs from inside the Capitol and searched for Members of Congress alongside other insurgents, together shouting threatening chants of: “Anybody home?”; “They went into the tunnels”; “Where’d you go?”; “They’re cowards!”; “Are you afraid?”; and “Treason!”; and
  • cognizant of the severity of her and Munchel’s crimes, advised before leaving the Capitol: “Don’t carry the zip ties, just get ‘em out of their hand, out of [unintelligible] get ‘em out of our hands.”

The offense circumstances illustrate a profound disrespect for the rule of law and law enforcement, indicating that the defendant’s unwillingness and incapacity to respect court-imposed conditions and demonstrating that no release condition will reasonably assure the community’s safety.

Both emergency motions for detention include a paragraph describing the danger mother and son pose as an unprecedented threat to democracy.

Finally, as we asserted in the Munchel appeal, it is difficult to fathom a more serious danger to the community—to the District of Columbia, to the country, or to the fabric of American Democracy—than the one posed by armed insurrectionists, including the defendant and Munchel, who joined in the occupation of the United States Capitol. Every person who was present without authority in the Capitol on January 6 contributed to the chaos of that day and the danger posed to law enforcement, the Vice President, Members of Congress, and the peaceful transfer of power. The defendant’s specific conduct aggravated the chaos and danger. It was designed to intimidate Members of Congress and instigate fear across the country. The defendant’s active participation in a violent insurgency on the Capitol designed to undermine the democratic process poses a serious and ongoing danger to the community that no release condition can reasonably assuage. As co-conspirator Munchel told The Times reporter: “[t]he point of getting inside the building [was] to show them that we can, and we will” (emphasis added); and as the defendant maintained, she would rather “die” and “fight” than “live under oppression.” Only detention mitigates the grave danger the defendant and Munchel pose. [my emphasis]

I expect readers of this site will agree with the latter emergency motions, and I definitely agree about the threat the insurrection posed to democracy.

But it is critical to understand that legally, both motions are true.

The difference lies in the additional overt act including in Munchel’s emergency motion and the import ascribed to Eisenhart’s statements in hers. More importantly, the difference lies in the effect of their actions — and the actions of others that, videos show, they encouraged: to halt a constitutionally mandated act using terror.

Defense attorneys will argue, the threats to Turton notwithstanding, that there is no definitive evidence that Munchel or Eisenhart intended to engage in violence at the Capitol (and in Munchel’s case, they’ll cite his own statements warning against destruction). Outside the context of a concerted plan to prevent the certification of the election, one can make a compelling case that Munchel and Eisenhart are nothing more than protestors who broke the law.

It’s possible that prosecutors in Tennessee didn’t include that because they view the election outcome differently or simply view these two as individual defendants outside the context of the larger goal. It’s possible they’re simply not privy to much of the evidence that gives prosecutors in DC confidence they’ll be able to prove a more concerted effort, a concerted effort that Munchel and Eisenhart both willingly took a part in. It’s likely that DC prosecutors aren’t including other prosecutors in plans to build the sedition charge mentioned in the emergency motions.

The evidence amassed so far subjects the defendant to felonies beyond that with which he has been charged so far, including obstructing Congress, interstate travel in furtherance of rioting activity, sedition, and other offenses.

But the successful prosecution of Zip-Tie Guy and his mom will depend on prosecutors’ success at making that larger case and showing that both of them agreed to the larger goal.

I’ve alluded to, several times, how the case against the Hutaree Militia foundered based on two things: prosecutors’ reliance on speech as proof that each member of the conspiracy entered into a goal of attacking the US government, and insufficient proof that the federal government itself was the target.

The lesson is important background for the January 6 insurrection. In her opinion throwing out most of that prosecution, Judge Victoria Roberts emphasized the meticulous scrutiny that a charge of seditious conspiracy must give to speech acts.

Where a conspiracy implicates First Amendment protections such as freedom of association and freedom of speech, the court must make a “specially meticulous inquiry” into the government’s evidence so there is not “an unfair imputation of the intent or acts of some participants to all others.” United States v. Dellinger, 472 F.2d 340, 392 (7th Cir. 1972). It is black-letter law that “[a] defendant cannot be convicted of conspiracy merely on the grounds of guilt by association, and mere association with the members of the conspiracy without the intention and agreement to accomplish an illegal objective is not sufficient to make an individual a conspirator.” Lee, 991 F.2d at 348. Likewise, mere presence at the scene does not establish participation in a conspiracy. United States v. Paige, 470 F.3d 603, 609 (6th Cir. 2006).

The Government has consistently maintained that this case is not about freedom of speech or association, but about the specific acts of violence alleged in the Indictment. The Court relied upon these representations in denying Defendants’ pretrial motions for a jury instruction on the Brandenburg case, and the heightened strictissimi juris standard for sufficiency of the evidence (Docs. 610, 618). However, much of the Government’s evidence against Defendants at trial was in the form of speeches, primarily by Stone, Sr., who frequently made statements describing law enforcement as the enemy, discussing the killing of police officers, and the need to go to war. Indeed, at oral argument on March 26, 2012, the Government asked the Court to find the existence of a seditious conspiracy based primarily on two conversations involving Stone, Sr., and others — the first on August 13, 2009, and the second on February 20, 2010.

And she cited precedent that requires that seditious conspiracy must target the US government itself (the Hutaree allegedly hoped to spark a larger rebellion by killing some cops — not far different from what the Boogaloo espouse).

In Anderson v. United States, the Eighth Circuit applied Baldwin and dismissed a seditious conspiracy charge where the force sought to be exerted was “not against those whose duty it should be to execute the laws.” 273 F. 20, 26 (8th Cir. 1921). Defendants were charged with seditious conspiracy for conspiring to prevent, hinder and delay by force, various laws of the United States, including the congressional declaration of war with Germany, and laws relating to conscription. Id. at 22-23. In furtherance of the seditious conspiracy, the Indictment alleged that the defendants circulated books and periodicals calling for strikes and the overthrow of the capitalist system and criticizing the war and individuals who joined the armed services. Id. at 24- 24.

Relying on Baldwin, the Court stated that for the Indictment to sufficiently charge seditious conspiracy, the purpose of the conspiracy must be “the exertion of force against those charged with the duty of executing the laws of the United States . . . .” Id. at 26. The court then held that the Indictment was insufficient because the “force was to be exerted, not against those whose duty it should be to execute the laws, and while attempting to do so, but its application was to be made against industrial and commercial activities by lawless acts during strikes for the purpose of accomplishing alleged socialistic ends . . . .” Id.

The law is clear that seditious conspiracy requires an agreement to oppose by force the authority of the United States itself. It must be an offense against the Nation, not local units of government. See Commonwealth of Pennsylvania v. Nelson, 350 U.S. 497, 505 (1956) (“Sedition against the United States is not a local offense. It is a crime against the Nation.” (citation and quotation marks omitted)). Any overt act in furtherance of seditious conspiracy must further a common plan to oppose the United States by force; otherwise, “the seditious conspiracy statute would expand infinitely to embrace the entire agenda of anyone who violated it . . . .” United States v. Rahman, 854 F. Supp. 254, 260 (S.D.N.Y. 1994); see also Haywood v. United States, 268 F. 795, 800 (7th Cir. 1920) (“[The seditious conspiracy statute] should not be enlarged by construction.”).

In that case, Roberts found that a plan to murder cops did not amount to seditious conspiracy.

The discussions of seditious conspiracy in Baldwin and Anderson are important to this case; while the Government presented evidence of vile and often hateful speech, and may have even shown that certain Defendants conspired to commit some crime – perhaps to murder local law enforcement — offensive speech and a conspiracy to do something other than forcibly resist a positive show of authority by the Federal Government is not enough to sustain a charge of seditious conspiracy. A conspiracy to murder law enforcement is a far cry from a conspiracy to forcibly oppose the authority of the Government of the United States.

The attack on the Capitol is an entirely different matter from that attempt by right wing militia members to spark an uprising in 2010. The targets of the January 6 conspiracy included the first and second in line to the Presidency, Mike Pence and Nancy Pelosi. Among the cops who were targeted — including the one who was murdered — were Capitol Police. The act that rioters were impeding was the execution of a duty laid out in the Constitution, certifying the Presidential election.

There’s little question that this amounts to a conspiracy against the government of the United States.

Nevertheless, as prosecutors tell one after another story about the individuals involved, they are going to have to make it clear, in each case, how each individual’s actions and stated goals tie to that larger effort to overthrow the constitutional working of the US government.

Update: Corrected where in succession Pence and Pelosi were.

Zip-Tie Guy’s Release on Bail Is Why Donald Trump Must Be Prosecuted

Yesterday, a magistrate judge in Nashville, Chip Frensley, gave Eric Munchel bail. He’s the guy who has become known as “Zip-Tie Guy” because of a picture of him taken in the Senate during the January 6 coup attempt, showing him dressed in tactical gear and holding zip ties.

The government will appeal the decision to DC Chief District Judge Judge Beryl Howell over the weekend, and thus far she has granted such requests from the government, so it’s certainly possible he will ultimately be held.

The bail hearing demonstrates one of the problems with the government’s investigation and prosecution going forward, one which demonstrates the necessity of prosecuting former President Donald Trump (see also this live tweet of the hearing and Politico’s account).

Munchel got charged, along with his mom, Lisa Marie Eisenhart, with the two trespassing charges used for most defendants, conspiracy among themselves, along with obstructing law enforcement during civil disorder.

The filing supporting detention described that Munchel must be found guilty of attempting to impede law enforcement during civil disorder.

To prove a violation of 18 U.S.C. § 231(a)(3), the government must show (1) that a civil disorder existed at the time of any alleged violation; (2) that such civil disorder was resulting in interference with a federally protected function; (3) that one or more law enforcement officers were lawfully engaged in the lawful performance of their official duties incident to and during the commission of such civil disorder; (4) that the defendant attempted to commit an act for the intended purpose of obstructing, impeding, or interfering, either by himself or with someone else, in a violent manner with such law enforcement officer or officers; and (5) that such attempt to act was done willfully and knowingly. United States v. Casper, 541 F.2d 1275, 1276 (8th Cir. 1976).

The evidence doesn’t show Munchel doing that — though shows his mom yelling at the cops. Indeed, the judge in the hearing described video showing him being deferential to cops inside the Capitol. The fact he grabbed the zip ties and said he wanted to seize the Senate gavel suggests he targeted Congress, not the cops.

What the evidence does show is Munchel is a gun nut who wanted to terrorize lawmakers. His mom spoke more explicitly of violent revolution.

“It was a kind of flexing of muscles,” said Munchel, who wore a bulletproof vest and complained that police confiscated his Taser during the riot. “The intentions of going in were not to fight the police. The point of getting inside the building is to show them that we can, and we will.”

Preparing for their 10-hour drive home, the 30-year-old clamoured for greater organisation in the next steps to fight against Biden’s America. He worried that many pro-Trump warriors were individualists and lamented that potential leaders in the Make America Great Again (Maga) movement faced difficulty in rallying troops due to banishment from mainstream social media sites. “Our biggest struggle is getting together, knowing where to go, what to do and who to go to,” said Munchel despondently.

His mother agreed: “The left has everything: the media, organisations, the government. We have to organise if we’re going to fight back and be heard.” Eisenhart, a nurse, added that a violent revolution has long been on the cards thanks to last year’s racial justice protests, anti-police riots and “unnecessary” coronavirus lockdowns.

“This country was founded on revolution. If they’re going to take every legitimate means from us, and we can’t even express ourselves on the internet, we won’t even be able to speak freely, what is America for?” said a teary-eyed Eisenhart, biting into a hotdog. “I’d rather die as a 57-year-old woman than live under oppression. I’d rather die and would rather fight.”

The most compelling piece of evidence that Munchel could have coordinated with a more organized plot involves an exchange he had with the Oath Keepers as he headed into the building.

As MUNCHEL and Eisenhart make their way to the Capitol, they encounter several members of the “Oathkeepers,” a militia group that is distrustful of government authority. One of the Oathkeepers says, “There’s 65 more of us coming.” MUNCHEL, when he recognizes them, says in affirmation, “Oathkeepers,” and bumps fists with one of the men.

But that does’t show pre-planning nor does it tie his possession of the zip ties to any plan the Oath Keepers had.

The government clearly either fears that Munchel will engage in violence or it wants to make sure it keeps its showy zip-tie guy on ice to include kidnapping among the parts of the plot they’ll eventually lay out. But the judge is right that, thus far, the government hasn’t shown evidence that he coordinated with anyone except his mom.

Silent in all this (because, unlike the other kitted-out guy in the Senate that day, Munchel was not shown to have told a reporter that he responded to the call of the then-President to come to DC to engage in that show of force) is the framework of Trump’s calls to overturn an election. The evidence even suggests that Eisenhart claims to have believed Trump’s Big Lie of a stolen election (and it may well be true that she does believe it). But that’s the single factor that makes Zip-Tie Guy’s actions, with his mom, dangerous. He wanted to scare lawmakers, and he wanted to do it in the context of a plea to illegally retain power. A plea from Donald Trump.

Until such time as prosecutors are ready to argue that this show of terrorism was intended to support false claims of election theft mobilized in an attempt to overthrow the Constitutional government of the United Staes, judges are going to find that guys like Munchel owned their arsenals legally and — while violating specific laws protecting the Capitol and the counting of the votes — do not pose a grave threat to our country.

I’m not saying I believe that. I’m not even sure Frensley does.

But absent closer ties to the Oath Keepers (who did clearly pre-plan), the thing that makes the raid on the Capitol especially dangerous, the thing that makes Munchel’s grab for the gavel and the zip-ties criminal, is Trump’s illegal plan. And so, until prosecutors start naming Trump as a co-conspirator, start naming the Big Lie of a stolen election as the motivating cause of the violence, guys like Munchel are going to continue to get bail.

Update: Mirriam Seddiq did a video talking about how conspiracy works in US law, as applied to Trump’s incitement of an insurrection that lays out how this should be presented to judges.

Update: Over the weekend, Beryl Howell granted the government’s emergency motion for detention. The motion included an additional allegation against Munchel, that he had assaulted Bloomberg journalist William Turton.

On the evening of January 6, 2021, after the insurrection, an individual posted a video of the Grand Hyatt hotel lobby on Twitter. The person then posted a message that read: “After I took this video, several Trump supporters harassed me and tried to follow me to my room. One accused me of being ‘antifa.’3 Hotel security intervened and moved me to new room. What a weird day.” See https://twitter.com/WilliamTurton/status/1346980284252745729 (Last accessed on January 23, 2021). The person added: “The Trump supporters demanded that I delete the video. One woman flashed her taser at me, and threatened to mace me.” See https://twitter.com/WilliamTurton/status/1347024856416714752 (last viewed January 23, 2021). Two days later, on January 8, based on another video from the Grand Hyatt posted to social media, the person identified the defendant as “one of the people in the hotel lobby who demanded I delete the video, put his hands on me, and screamed at me . . . .” See https://twitter.com/WilliamTurton/status/1347699125408641024 (last viewed January 23, 2021); https://twitter.com/WilliamTurton/status/1347699345345417217 (last viewed January 23, 2021). Evidence of this encounter was not presented at the preliminary and detention hearing in the Middle District of Tennessee.

It also more aggressively described what Munchel had done as insurrection.

Finally, it is difficult to fathom a more serious danger to the community—to the District of Columbia, to the country, or to the fabric of American Democracy—than the one posed by armed insurrectionists, including the defendant, who joined in the occupation of the United States Capitol. Every person who was present without authority in the Capitol on January 6 contributed to the chaos of that day and the danger posed to law enforcement, the Vice President, Members of Congress, and the peaceful transfer of power. The defendant’s specific conduct aggravated the chaos and danger. It was designed to intimidate Members of Congress and instigate fear across the country. Make no mistake: the fear the defendant helped spread on January 6 persists—the imprint on this country’s history of a militia clad insurrectionist standing over an occupied Senate chamber is indelible. Only detention mitigates such grave danger.

It makes it clear Munchel may be facing additional charges.

The evidence amassed so far subjects the defendant to felonies beyond that with which he has been charged so far, including obstructing Congress, interstate travel in furtherance of rioting activity, sedition, and other offenses. These offenses carry substantial penalties, which incentivizes flight and evading law enforcement—a thought that the defendant already appears to have contemplated by virtue of avoiding his residence and workplace, terminating his Facebook account, and leaving his cell phone with an associate.