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Former Presiding FISA Judge John Bates’ Curious Treatment of White Person Terrorism

By chance of logistics, the men and women who have presided over a two decade war on Islamic terrorism are now presiding over the trials of those charged in January 6.

To deal with the flood of defendants, the Senior Judges in the DC District have agreed to pick up some cases. And because FISA mandates that at least three of the eleven FISA judges presiding at any given time come from the DC area, and because the presiding judge has traditionally been from among those three, it means a disproportionate number of DC’s Senior Judges have served on the FISA Court, often on terms as presiding judge or at the very least ruling over programmatic decisions that have subjected millions of Americans to collection in the name of the war on terror. Between those and several other still-active DC judges, over 60 January 6 cases will be adjudicated by a current or former FISA judge.

Current and former FISA judges have taken a range of cases with a range of complexity and notoriety:

  • Royce Lamberth served as FISC’s presiding judge from 1995 until 2002 and failed in his effort to limit the effect of the elimination of the wall between intelligence and criminal collection passed in the PATRIOT Act. And during a stint as DC’s Chief Judge he dealt with the aftermath of the Boumediene decision and fought to make the hard won detention reviews won by Gitmo detainees more than a rubber stamp. Lamberth is presiding over 10 cases with 14 defendants. A number of those are high profile cases, like that of Jacob Chansley (the Q Shaman), Zip Tie Guy Eric Munchel and his mother, bullhorn lady and mask refusenik Rachel Powell, and Proud Boy assault defendant Christopher Worrell.
  • Colleen Kollar-Kotelly is still an active DC District judge, but she served as FISC presiding judge starting way back in 2002, inheriting the difficulties created by Stellar Wind from Lamberth. She’s the one who redefined “relevant to” in an effort to bring the Internet dragnet back under court review. She is presiding over ten January 6 cases with 12 defendants. That includes Lonnie Coffman, who showed up to the insurrection with a truck full of Molotov cocktails, as well as some other assault cases.
  • John Bates took over as presiding judge of FISC on May 19, 2009. In 2010, he redefined “metadata” so as to permit the government to continue to use the Internet dragnet; the government ultimately failed to make that program work but FISC has retained that twisted definition of “metadata” nevertheless. In 2011, he authorized the use of “back door searches” on content collected under FISA’s Section 702. In 2013, Bates appears to have ruled that for Islamic terrorists, the FBI can get around restrictions prohibiting surveillance solely for First Amendment reasons by pointing to the conduct of an American citizen suspect’s associates, rather than his or her own. And while not a FISA case, Bates also dismissed Anwar al-Awlaki’s effort to require the government to give him some due process before executing him by drone strike; at the time, the government had presented no public evidence that Awlaki had done more than incite violence. Bates has eight January 6 cases with nine defendants (as well as some unrelated cases), but he is presiding over several high profile ones, including the other Zip Tie Guy, Larry Brock, the scion of a right wing activist family, Leo Bozell IV, and former State Department official Freddie Klein.
  • Reggie Walton, who took over as presiding judge in 2013 but who, even before that, oversaw key programmatic decisions starting in 2008, showed a willingness both on FISC and overseeing the Scooter Libby trial to stand up to the Executive. That includes his extended effort to clean up the phone and Internet dragnet after Bush left in 2009, during which he even shut down part or all of the two dragnets temporarily. Walton is presiding over six cases with eight defendants, most for MAGA tourism.
  • Thomas Hogan was DC District’s head judge in the 2000s. In that role, he presided over the initial Gitmo detainees’ challenges to their detention (though many of the key precedential decisions on those cases were made by other judges who have since retired). Hogan then joined FISC and ultimately took over the presiding role in 2014 and in that role, affirmatively authorized the use of Section 702 back door searches for FBI assessments. Hogan is presiding over 13 cases with 18 defendants, a number of cases involving multiple defendants (including another set of mother-son defendants, the Sandovals). The most important is the case against alleged Brian Sicknick assailants, Julian Khater and George Tanios.
  • James Boasberg, who took over the presiding position on FISC on January 1, 2020 but had started making initial efforts to rein in back door searches even before that, is presiding over about eight cases with ten defendants, the most interesting of which is the case of Aaron Mostofsky, who is himself the son of a judge.
  • Rudolph Contreras, who like Kollar-Kotelly and Boasberg is not a senior judge, is currently a FISC judge. He has six January 6 cases with seven defendants, most MAGA tourists accused of trespassing. There’s a decent chance he’ll take over as presiding judge when Boasberg’s term on FISC expires next month.

Of the most important FISA judges since 9/11, then, just Rosemary Collyer is not presiding over any January 6 cases.

Mind you, it’s not a bad thing that FISA judges will preside over January 6 cases. These are highly experienced judges with a long established history of presiding over other cases, ranging the gamut and including other politically charged high profile cases, as DC District judges do.

That said, in their role as FISA judges — particularly when reviewing programmatic applications — most of these judges have been placed in a fairly unique role on two fronts. First, most of these judges have been forced to weigh fairly dramatic legal questions, in secret, in a context in which the Executive Branch routinely threatens to move entire programs under EO 12333, thereby shielding those programs from any oversight by a judge. These judges responded to such situations with a range of deference, with Royce Lamberth and Reggie Walton raising real stinks and — the latter case — hand-holding on oversight over the course of most of a year, to John Bates and to a lesser degree Thomas Hogan, who often complained at length about abuses before expanding the same programs being abused. Several — perhaps most notably Kollar-Kotelly when she was asked to bring parts of Stellar Wind under FISA — have likewise had to fight to affirm the authority of the entire Article III branch, all in secret.

Ruling on these programmatic FISA applications also involved hearing expansive government claims about the threat of terrorism, the difficulty and necessity of identifying potential terrorists before they attack, and the efficacy of the secret programs devised to do that (the judges who also presided over Gitmo challenges, which includes several on this list, also fielded similar secret claims about the risk of terrorism). Some of those claims — most notably, about the efficacy of the Section 215 phone dragnet — were wildly overblown. In other words, to a degree unmatched by most other judges, these men and women were asked to balance the rights of Americans against secret government claims about the risks of terrorism.

Now these same judges are part of a group being asked to weigh similar questions, but about a huge number of predominantly white, sometimes extremist Christian, defendants, but to do so in public, with defense attorneys challenging their every decision. Here, the balance between extremist affiliation and First Amendment rights will play out in public, but against the background of a two decade war on terror where similar affiliation was criminalized, often in secret.

Generally, the District judges in these cases have not done much on the cases yet, as either Magistrates (on initial pre-indictment appearances) or Chief Judge Beryl Howell (on initial detention disputes) have handled some of the more controversial issues, and in a few cases, Ketanji Brown Jackson presided over arraignments before she started handing off cases in anticipation of her Circuit confirmation process.

But several of the judges have written key opinions on detention, opinions that embody how differently the conduct of January 6 defendants looks to different people.

Lamberth, for example, authored the original detention order for “Zip Tie Guy” Eric Munchel and his mom, Lisa Eisenhart. Even while admitting that Munchel made efforts to limit any vandalization during the riot, Lamberth nevertheless deemed Munchel’s actions a threat to our constitutional government.

The grand jury charged Munchel with grave offenses. In charging Munchel with “forcibly enter[ing] and remain[ing] in the Capitol to stop, delay, and hinder Congress’s certification of the Electoral College vote,” Indictment 1, ECF No. 21, the grand jury alleged that Munchel used force to subvert a democratic election and arrest the peaceful transfer of power. Such conduct threatens the republic itself. See George Washington, Farewell Address (Sept. 19, 1796) (“The very idea of the power and the right of the people to establish government presupposes the duty of every individual to obey the established government. All obstructions to the execution of the laws, all combinations and associations, under whatever plausible character, with the real design to direct, control, counteract, or awe the regular deliberation and action of the constituted authorities, are destructive of this fundamental principle, and of fatal tendency.”). Indeed, few offenses are more threatening to our way of life.

Munchel ‘s alleged conduct demonstrates a flagrant disregard for the rule of law. Munchel is alleged to have taken part in a mob, which displaced the elected legislature in an effort to subvert our constitutional government and the will of more than 81 million voters. Munchel’ s alleged conduct indicates that he is willing to use force to promote his political ends. Such conduct poses a clear risk to the community.

Defense counsel’s portrayal of the alleged offenses as mere trespassing or civil disobedience is both unpersuasive and detached from reality. First, Munchel’s alleged conduct carried great potential for violence. Munchel went into the Capitol armed with a taser. He carried plastic handcuffs. He threatened to “break” anyone who vandalized the Capitol.3 These were not peaceful acts. Second, Munchel ‘s alleged conduct occurred while Congress was finalizing the results of a Presidential election. Storming the Capitol to disrupt the counting of electoral votes is not the akin to a peaceful sit-in.

For those reasons, the nature and circumstances of the charged offenses strongly support a finding that no conditions of release would protect the community.

[snip]

Munchel gleefully entered the Capitol in the midst of a riot. He did so, the grand jury alleges, to stop or delay the peaceful transfer of power. And he did so carrying a dangerous weapon. Munchel took these actions in front of hundreds of police officers, indicating that he cannot be deterred easily.

Moreover, after the riots, Munchel indicated that he was willing to undertake such actions again. He compared himself-and the other insurrectionists-to the revolutionaries of 1776, indicating that he believes that violent revolt is appropriate. See Pullman, supra. And he said “[t]he point of getting inside the building is to show them that we can, and we will.” Id. That statement, particularly its final clause, connotes a willingness to engage in such behavior again.

By word and deed, Munchel has supported the violent overthrow of the United States government. He poses a clear danger to our republic.

This is the opinion that the DC Circuit remanded, finding that Lamberth had not sufficiently considered whether Munchel and his mother would pose a grave future threat absent the specific circumstances present on January 6. They contrasted the mother and son with those who engaged in violence or planned in advance.

[W]e conclude that the District Court did not demonstrate that it adequately considered, in light of all the record evidence, whether Munchel and Eisenhart present an identified and articulable threat to the community. Accordingly, we remand for further factfinding. Cf. Nwokoro, 651 F.3d at 111–12.

[snip]

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. See Simpkins, 826 F.2d at 96 (“[W]here the future misconduct that is anticipated concerns violent criminal activity, no issue arises concerning the outer limits of the meaning of ‘danger to the community,’ an issue that would otherwise require a legal interpretation of the applicable standard.” (internal quotation and alteration omitted)). And while the District Court stated that it was not satisfied that either appellant would comply with release conditions, that finding, as noted above, does not obviate a proper dangerousness determination to justify detention.

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. [my emphasis]

The DC Circuit opinion (joined by Judith Rogers, who ruled for Gitmo detainees in Bahlul and a Boumediene dissent) was absolutely a fair decision. But it is also arguably inconsistent with the way that the federal government treated Islamic terrorism, in which every time the government identified someone who might engage in terrorism (often using one of the secret programs approved by this handful of FISA judges, and often based off far less than waltzing into the Senate hoping to prevent the certification of an election while wielding zip ties and a taser), the FBI would continue to pursue those people as intolerably dangerous threats. Again, that’s not the way it’s supposed to work, but that is how it did work, in significant part with the approval of FISA judges.

That is, with Islamic terrorism, the government treated potential threats as threats, whereas here CADC required Lamberth to look more closely at what could make an individual predisposed to an assault on our government — a potential threat — as dangerous going forward. Again, particularly given the numbers involved, that’s a better application of due process than what has been used for the last twenty years, but it’s not what happened during the War on Terror (and in weeks ahead, this will be relitigated with consideration of whether Trump’s continued incitement makes these defendants an ongoing threat).

Now compare Lamberth’s order to an order John Bates issued in the wake of and specifically citing the CADC ruling, releasing former State Department official Freddie Klein from pretrial detention. Klein is accused of fighting with cops in the Lower West Terrace over the course of half an hour.

Bates found that Klein, in using a stolen riot shield to push against cops in an attempt to breach the Capitol, was eligible for pre-trial detention, though he expressed skepticism of the government’s argument that Klein had wielded the shield as a dangerous weapon).

The Court finds that Klein is eligible for pretrial detention based on Count 3. Under the BRA, a “crime of violence” includes “an offense that has as an element of the offense the use, attempted use, or threatened use of physical force against the person or property of another.” 18 U.S.C. § 3156(a)(4)(A). The Supreme Court in Johnson v. United States defined “physical force” as “force capable of causing physical pain or injury to another person.” 559 U.S. 133, 140 (2010); see also Def.’s Br. at 9.

[snip]

6 The Court has some doubts about whether Klein “used” the stolen riot shield as a dangerous weapon. The BRA does not define the term, but at least for purposes of § 111(b), courts have held that a dangerous weapon is any “object that is either inherently dangerous or is used in a way that is likely to endanger life or inflict great bodily harm.” See United States v. Chansley, 2021 WL 861079, at *7 (D.D.C. Mar. 8, 2021) (Lamberth, J.) (collecting cases). A plastic riot shield is not an “inherently dangerous” weapon, and therefore the question is whether Klein used it in a way “that is likely to endanger life or inflict great bodily harm.” The standard riot shield “is approximately forty-eight inches tall and twenty-four inches wide,” see Gov’t’s Br. at 13, and the Court disagrees with defense counsel’s suggestion that a riot shield might never qualify as a dangerous weapon, even if swung at an officer’s head, Hr’g Tr. 18:18–25, 19:1–11. See, e.g., United States v. Johnson, 324 F.2d 264, 266 (4th Cir. 1963) (finding that metal and plastic chair qualified as a dangerous weapon when “wielded from an upright (overhead) position and brought down upon the victim’s head”). But it is a close call whether Klein’s efforts to press the shield against officers’ bodies and shields were “likely to endanger life or inflict great bodily harm.” See Chansley, 2021 WL 861079, at *7.

But Bates ruled that there were certain things about the case against Klein — that he didn’t come prepared for combat, that he didn’t bring a weapon with him and instead just made use of what he found there, that any coordination he did involved ad hoc cooperation with other rioters rather than leadership throughout the event — that distinguished him from other defendants who (he suggested) should be detained, thereby limiting the guidelines laid out by CDC.

Bates’ decision on those points is absolutely fair. He has distinguished Klein from other January 6 defendants who, he judges, contributed more to the violence.

But there are two aspects of Bates’ decision I find shocking, especially from the guy who consistently deferred to Executive Authority on matters of national security and who sacrificed all of our communicative privacy in the service of finding hidden terrorist threats to the country. First, Bates dismissed the import of Klein’s sustained fight against cops because — he judged — Klein was only using force to advance the position of the mob, not trying to injure anyone.

The government’s contention that Klein engaged in “what can only be described as hand-to-hand combat” for “approximately thirty minutes” also overstates what occurred. See Gov’t’s Br. at 6. Klein consistently positioned himself face-to-face with multiple officers and also repeatedly pressed a stolen riot shield against their bodies and shields. His objective, as far as the Court can tell, however, appeared to be to advance, or at times maintain, the mob’s position in the tunnel, and not to inflict injury. He is not charged with injuring anyone and, unlike with other defendants, the government does not submit that Klein intended to injure officers. Compare Hr’g Tr. 57:12–18 (government conceding that the evidence does not establish Klein intended to injure anyone, only that “there was a disregard of care whether he would injure anyone or not” in his attempt to enter the Capitol), with Gov’t’s Opp’n to Def.’s Mot. to Reopen Detention Hearing & For Release on Conditions, ECF No. 30 (“Gov’t’s Opp’n to McCaughey’s Release”), United States v. McCaughey, III, 21-CR-040-1, at 11 (D.D.C. Apr. 7, 2021) (government emphasizing defendant’s “intent to injure” an officer who he had pinned against a door using a stolen riot shield as grounds for pretrial detention). And during the time period before Klein obtained the riot shield, he made no attempts to “battle” or “fight” the officers with his bare hands or other objects, such as the flagpole he retrieved. That does not mean that Klein could not have caused serious injury— particularly given the chaotic and cramped atmosphere inside the tunnel. But his actions are distinguishable from other detained defendants charged under § 111(b) who clearly sought to incapacitate and injure members of law enforcement by striking them with fists, batons, baseball bats, poles, or other dangerous weapons.

[snip]

Klein’s conduct was forceful, relentless, and defiant, but his confrontations with law enforcement were considerably less violent than many others that day, and the record does not establish that he intended to injure others. [my emphasis]

Bates describes that Klein wanted to use force in the service of occupying the building, not harming individual cops.

Of course, using force to occupy a building in service of halting the vote count is terrorism, but Bates doesn’t treat it as such.

Even more alarmingly, Bates flips how Magistrate Zia Faruqui viewed a government employee like Klein turning on his own government. The government had argued — and Faruqui agreed — that when a federal employee with Top Secret clearance attacks his own government, it is not just a crime but a violation of the Constitutional oath he swore to protect the country against enemies foreign and domestic.

Bates — after simply dismissing the import of Klein’s admittedly limited criminal history that under any other Administration might have disqualified him from retaining clearance — describes what Klein did as a “deeply concerning breach of trust.”

The government also argues that “Klein abdicated his responsibilities to the country and the Constitution” on January 6 by violating his oath of office as a federal employee to “support and defend the Constitution of the United States against all enemies, foreign and domestic.” Id. at 24–25 (quoting 5 U.S.C. § 3331). The fact that, as a federal employee, Klein actively participated in an assault on our democracy to thwart the peaceful transfer of power constitutes a substantial and deeply concerning breach of trust. More so, too, because he had been entrusted by this country to handle “top secret” classified information to protect the United States’ most sensitive interests. In light of his background, Klein had, as Magistrate Judge Faruqui put it, every “reason to know the acts he committed” on January 6 “were wrong,” and yet he took them anyway. Order of Detention Pending Trial at 4. Klein’s position as a federal employee thus may render him highly culpable for his conduct on January 6. But it is less clear that his now-former employment at the State Department heightens his “prospective” threat to the community. See Munchel, 2021 WL 1149196, at *4. Klein no longer works for or is affiliated with the federal government, and there is no suggestion that he might misuse previously obtained classified information to the detriment of the United States. Nor, importantly, is he alleged to have any contacts—past or present—with individuals who might wish to take action against this country. [my emphasis]

Bates then argues that Klein’s ability to obtain clearance proves not that he violates oaths he takes (the government argument adopted by Faruqui), but that he has the potential to live a law-abiding life.

Ultimately, Klein’s history—including his ability to obtain a top-level security clearance—shows his potential to live a law-abiding life. His actions on January 6, of course, stand in direct conflict with that narrative. Klein has not—unlike some other defendants who have been released pending trial for conduct in connection with the events of January 6—exhibited remorse for his actions. See, e.g., United States v. Cua, 2021 WL 918255, at *7–8 (D.D.C. Mar. 10, 2021) (Moss, J.) (weighing defendant’s deep remorse and regret in favor of pretrial release). But nor has he made any public statements celebrating his misconduct or suggesting that he would participate in similar actions again. And it is Klein’s constitutional right to challenge the allegations against him and hold the government to its burden of proof without incriminating himself at this stage of the proceedings. See United States v. Lawrence, 662 F.3d 551, 562 (D.C. Cir. 2011) (“[A] district court may not pressure a defendant into expressing remorse such that the failure to express remorse is met with punishment.”). Hence, despite his very troubling conduct on January 6, the Court finds on balance that Klein’s history and characteristics point slightly toward release.

In short, Bates takes the fact that Klein turned on the government he had sworn to protect and finds that that act weighs in favor of release.

Bates judges that this man, whom he described as having committed violence to advance the goal of undermining an election, nevertheless finds that — having already done that — Klein does not pose an unmanageable prospective threat.

Therefore, although it is a close call, the Court ultimately does not find that Klein poses a substantial prospective threat to the community or any other person. He does not pose no continuing danger, as he contends, given his demonstrated willingness to use force to advance his personal beliefs over legitimate government objectives. But what future risk he does present can be mitigated with supervision and other strict conditions on his release.

Again, it’s not the decision itself that is troubling. It’s the thought process Bates used, both for the way Bates flips Klein’s betrayal of his oath on its head, and for the way that Bates views the threat posed by a man who already used force in an attempt to coerce a political end. And it’s all the more troubling knowing how Bates has deferred to the Executive’s claims about the nascent threat posed even by people who have not, yet, engaged in violence to coerce a political end.

Bates similarly showed no deference to the government’s argument that Larry Brock, a retired Lieutenant Colonel who also brought zip ties into the Senate chamber, should have no access to the Internet given really inflammatory statements on social media, including a call for “fire and blood” as early as November. Bates decided on his own that Probation could sufficiently monitor Brock’s Internet use, comparing Brock to (in my opinion) two unlike defendants to justify the decision. Again, the decision itself is absolutely reasonable, but for the guy who decided the government could monitor significant swaths of transnational Internet traffic out of a necessity to identify potential terrorists, for a guy who okayed the access of US person’s content with no warrant, it’s fairly remarkable that he hasn’t deferred to the government about the danger Brock poses on the Internet (to say nothing of Brock’s likely sophistication at evading surveillance).

Again, I’m not complaining about any of these opinions. The outcomes are all reasonable. It is genuinely difficult to fit the events of January 6 into our existing framework (and perhaps that’s a good thing). Plus, there is such a range of fact patterns that even in the Munchel opinion give force to the mob even while trying to adjudicate individuals’ actions.

But either because these discussions are public, or because we simply think about white person terrorism differently, less foreign, perhaps, than we do Islamic terrorism, the very same judges who’ve grappled with these questions for the past two decades don’t necessarily have the ready answers they had in the past.

FISA Judges January 6 cases

Lamberth:

Kollar-Kotelly:

Bates:

Walton:

Hogan:

Boasberg:

Contreras:

Updated List of January 6 Assault Defendants

Back in February, I did a post listing the January 6 defendants charged with one or another type of assault against police. I’ve been updating the post (and will update this one), but that one had gotten out of date and I’ve spent much of the morning doing housekeeping on my own tracking of the January 6 defendants so I wanted to repost that list.

Since February, some known assailants have been charged:

  • Julian Khater and George Tanios in the assault on Brian Sicknick suspected of playing a role in his death
  • Albuquerque Cosper Head, Thomas Sibick, and Kyle Young — charged together — in an attack on Michael Fanone and, separately, Daniel Rodriguez for tasing him
  • An expanding group — currently including Jeffrey Sabol, Peter Stager, Michael Lopatic, Clayton Mullins, and Jack Whitton — accused of dragging a cop into the crowd and beating him with various weapons and attacking another, thwarting attempts to help Rosanne Boyland, who was dying nearby

In addition, more militia defendants are being accused of assault, including Proud Boys Christopher Quaglin and Christopher Worrell. Last week, Oath Keeper Jon Schaffer entered a cooperation agreement with the government, probably staving off an assault charge tied to his use of bear spray, and a recent detention motion claims Joshua James riled up assaults on cops as well.

Then there are the rather spectacular cases of Trump State Department official Freddie Klein and former Green Beret Jeffrey McKellop, who’ve been charged with assault.

Yet even while the FBI rounds up more of the people charged with some of the identifiable assaults from January 6, the great majority of BOLOs (Be On the Lookout for — basically, requests for tips) released by the FBI, currently numbering 360, are assault suspects who have yet to be identified. So there may be around 200 more people who could be charged with assault.

And, of course, the pipe bomber remains at large, in spite of a $100,000 reward for information leading to that person’s arrest.

  1. Daniel Page Adams, whose arrest affidavit describes engaging in a “direct struggle with [unnamed] law enforcement officers” (his cousin, Cody Connell, described the exchange as a “civil war”). Tip SM
  2. Zachary Alam, who pushed cops around as he was trying to break into the Speaker’s Lobby. BOLO 79
  3. Wilmar Alvarado, who pushed cops in the mob trying to get in from the West Terrace. BOLO 65
  4. John Anderson, who after taking two riot shields from cops, needed their assistance after getting maced.
  5. David Blair, who poked a cop with a lacrosse stick with a Confederate flag attached. Onsite arrest
  6. Nicholas James Brockhoff, who sprayed a fire extinguisher from the Terrace at cops. BOLO 255
  7. Daniel Caldwell, who was filmed macing 15 cops. SM
  8. Matthew Caspel, who was filmed charging the National Guard. Tip SM
  9. William Chrestman, who is accused of threatening a cop as Proud Boys pushed their way past the original line of defense (charged with 18 USC 115). NM
  10. Reed Christensen, who was videotaped swinging at cops. BOLO and video 191
  11. Luke Coffee, who was videotaped beating several cops with a crutch. (Tip SM and BOLO 108)
  12. Lance Copeland, who admitted to fighting with cops on the barricades.
  13. Christian Cortez, who yelled at cops behind a door.
  14. Matthew Council, who was arresting for shoving cops the day of the riot.
  15. Kevin Creek, who was filmed hitting and kicking officers on the West Terrace. BOLO 296
  16. Bruno Cua, who was filmed shoving a cop to be able to get into the Senate. Tip LE
  17. Nathan DeGrave, whom security cameras caught threatening to fight cops. Network Sandlin
  18. Daniel Egdvedt, a large man who took swipes and grabbed at several officers as they tried to remove him from the Capitol. BOLO 76
  19. Scott Fairlamb, who was caught in multiple videos shoving and punching officers (one who whom is identified but not named); Cori Bush has said she was threatened by him last summer. Tips, including SM
  20. Kyle Fitzsimons, who charged officers guarding the doorway of the Capitol. BOLO 139
  21. Michael Foy, a former Marine who was caught on multiple videos beating multiple cops with a hockey stick. Tip SM
  22. Robert Giswein, who appears to have ties to the Proud Boys and used a bat to beat cops. NM
  23. Vitali Gossjankowski, who was interviewed about whether he had tased MPD officer Michael Fanone, causing a heart attack; instead he was charged with assaulting CPD officer MM (BOLO 98 — with a second one mentioned)
  24. Bryan Gunderson, charged with assault while committing a felony on a superseding.
  25. Alex Harkrider, who after being filmed fighting with police at the door of the Capitol, posted a picture with a crowbar labeled, “weapon;” he was charged with abetting Ryan Nichols’ assault. Tip SM
  26. Richard Harris
  27. Albuquerque Cosper Head, accused of assaulting Michael Fanone.
  28. Emanuel Jackson, whom videos caught punching one officer, and others show beating multiple officers with a metal baseball bat. BOLO 31
  29. Shane Jenkins, alleged to have used a crowbar to break in a window, later threw things including a pole, a desk drawer, and a flagpole at cops.
  30. Douglas Jensen, the QAnon who chased Officer Goodman up the stairs, got charged with resisting him. NM, BOLO 10
  31. Taylor Johnatakis, charged with 111.
  32. Paul Johnson, who carried a bullhorn and was in the initial assault from the west side with Ryan Samsel. BOLO 49
  33. Chad Jones, who used a Trump flag to break the glass in the Speaker’s Lobby door just before Ashli Babbitt was shot and may have intimidated three officers who were pursuing that group. Tip NM
  34. David Judd, who threw a firecracker at cops in the tunnel. Tip and BOLO 137
  35. Julian Elie Khater, who allegedly sprayed Brian Sicknick and two others with very powerful bear spray. BOLO 190
  36. Freddie Klein, the State Department employee who fought with three different officers while trying to break through police lines. BOLO 136
  37. Edward Jacob Lang, who identified himself in a screen cap of a violent mob attacking cops and who was filmed slamming a riot shield into police and later fighting them with a red baseball bat. Tip SM
  38. Nicholas Languerand, accused of throwing a bollar, a can of pepper spray, and a stick at cops in the Lower West Tunnel.
  39. Mark Jefferson Leffingwell, whom a Capitol Police officer described in an affidavit punching him. Onsite arrest
  40. Joshua Lollar, who described fighting cops and was caught in pictures showing himself in the front lines confronting cops. Tip SM
  41. Michael Lopatic, who allegedly assaulted some cops with Stager and Sabol, then took a BWC to hide the assault. BOLO 133
  42. Clifford Mackrell, who attempted to strip an officer’s gas mask after someone else sprayed bear spray. BOLO 124
  43. Patrick Edward McCaughey III, who was filmed crushing MPD Officer Daniel Hodges in one of the doors to the Capitol. BOLO 62
  44. James McGrew, who shoved some cops in the Rotunda then bared his King James belly tattoo, Tip Network
  45. Sean McHugh, accused of spraying some yellow substance at cops and using a sign as a battering ram, BOLO 59
  46. Jeffrey McKellop, a former Special Forces guy accused of assaulting 4 cops, including one by using a flagpole as a spear. BOLO 215
  47. Jonathan Mellis, who used some kind of stick to try to jab and beat police. Tip SM
  48. Jalise Middleton
  49. Mark Middleton, the Middletons fought the cops outside the West entrance to the Capitol. BWC
  50. Garret Miller, who pushed back at cops and then threatened both AOC and the cop who killed Ashli Babbit. Tip LE
  51. Matthew Ryan Miller, who released fire extinguisher in close quarters. Tip SM
  52. Jordan Mink, who used a pole to assault the police.
  53. Brian Mock, who kicked a cop when he was down and bragged about it. BOLO and Tip SM
  54. Patrick Montgomery was charged with assault against MPD officer DJ in a follow-up indictment.
  55. Robert Morss, who in addition to tussling with a cop, was a key organizer of shield walls in the Tunnel. BOLO 147
  56. Aaron Mostofsky, possibly for stripping a cop of his or her armored vest and riot shield. NM
  57. Clayton Mullins, alleged to be part of the mob that assaulted AW and two other police. Tip
  58. Jonathan Munafo, alleged to have fought with cops in two different locations, including punching one in the Lower West Terrace. (BOLO and video 170)
  59. Ryan Nichols, who was filmed wielding a crowbar and yelling, “This is not a peaceful protest,” then spraying pepper spray against police trying to prevent entry to the Capitol. Tip SM
  60. Grady Owens, who allegedly hit a cop in the head on the Mall with a skateboard, as he was heading to reinforce the Capitol. BOLO 109
  61. Jason Owens, accused of assaulting a second officer after his son attacked one with a skateboard. Network Owens
  62. Jose Padilla, who shoved cops at a barricade, then helped use a Donald Trump sign as a battering ram against them. Tip SM
  63. Robert Palmer, who sprayed cops with a fire extinguisher then threw it at them.
  64. Dominic Pezzola, a Proud Boy who stole a shield from cops. NM (BOLO 43)
  65. Mark Ponder, filmed repeatedly attacking cops with poles.
  66. Christopher Quaglin, accused of assaulting cops both at the initial breach of the barriers and later in the Lower West Terrace.
  67. Stephen Chase Randolph, who shoved cops at the initial barricade and later bragged about a female cop’s head bouncing off the pavement. BOLO 168
  68. Daniel Rodriguez, whom videos appear to show tasing Michael Fanone. Sedition Hunter-based reporting
  69. Jeffrey Sabol, helped drag a cop from the Capitol and beat him while prone. LE arrest (erratic driving)
  70. Ryan Samsel, who set off the riot by giving a cop a concussion; he appears to have coordinated with Joe Biggs. BOLO 51 (though not IDed by BOLO)
  71. Salvador Sandoval, Jr, who went to the insurrection with his mother and shoved some cops.
  72. Robert Sanford, who was filmed hitting Capitol Police Officer William Young on the head with a fire extinguisher. Tip NM
  73. Ronald Sandlin, who tried to wrestle cops to keep the door to the Senate open. MPD tip
  74. Troy Sargent, who appears to have punched some cops holding a line. Tip SM
  75. Peter Schwartz, a felon who maced several cops. Tip NM (BOLO 120)
  76. Dan Scott, AKA Milkshake, who shoved some cops in the initial assault. Network.
  77. Christian Secor, a UCLA self-described fascist who helped shove through some cops to break into the Capitol and then sat in the Senate chamber. Tip NM
  78. DJ Shalvey. The details of the assault charged against Shalvey are not public, but he did get charged for lying about it to the FBI.
  79. Barton Wade Shively, who pushed and shoved some police trying to get into the Capitol, punched another, then struck one of those same cops later and kicked another. BOLO 55
  80. Thomas Sibick, accused of being among a group of men who attacked Michael Fanone and stole his badge.
  81. Audrey Southard-Rumsey, the talented singer deemed one of the main agitators in the Statuary Hall Connector. Tip SM
  82. Peter Francis Stager, who was involved in beating a prone cop with a flagpole. Tip SM
  83. Ezekial Stecher, whom videos showed pushing in the Lower West Tunnel.
  84. Tristan Stevens, who fought cops with a shield and baton. Video
  85. Isaac Sturgeon, who is accused of using a barricade to attack some officers.
  86. George Pierre Tanios, who allegedly conspired with Julian Khater to attack Brian Sicknick and two other cops. BOLO 254
  87. Kenneth Joseph Owen Thomas, who organized a MAGA Caravan from AL and then selfied himself attacking cops. BOLO 214
  88. Christopher Warnagiris, the Marine Major who fought to keep the East door open. BOLO 241
  89. Thomas Webster, who attacked a cop with a flagpole (BOLO 145)
  90. Wade Whitten, accused of dragging AW down the steps of the Capitol and hitting him with a crutch (BOLO 130)
  91. Duke Wilson, accused of assaulting several officers in the Lower West Tunnel (BOLO 87)
  92. Christopher Worrell, a Proud Boy who apparently sprayed pepper spray at a line of police.
  93. Kyle Young, accused of attacking Michael Fanone and another officer, and stealing Fanone’s weapon.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Christopher Quaglin: Illuminating the Gaps in the January 6 Panopticon

In this post, I suggested several of the people recently arrested on trespass charges were likely arrested as a way to facilitate evidence collection about other insurrectionists. Collecting their recordings of events may be necessary to fill certain gaps within the government’s own evidence of the attack.

The court filings for Christopher Quaglin shows the significance of two of those gaps. They show how the failure to outfit the Capitol Police with Body Worn Cameras means there’s lower quality evidence for assaults on them than on DC cops, who wear BWCs. The Quaglin filings also show the limits of the Facebook and Google GeoFence warrants that have gotten a lot of attention.

Capitol Police weren’t protected by Body Worn Cameras

Quaglin was originally arrested on probable cause of assault, resisting cops during a civil disorder, and obstruction of the vote count — not the two trespassing charges charged against almost all defendants.

He’s actually accused of two sets of assaults. First, starting at 1:36, he yelled at some DC Metropolitan Police Department officers guarding one of the barriers. Then, before 2:40, he allegedly started shoving Capitol Police officers guarding the Lower West Terrace. Later, filings against him allege, he sprayed officers from both agencies guarding the Lower West Terrace tunnel with pepper spray.

In other words, he was such a prolific brute, he allegedly assaulted both MPD and CP officers in at least two different places, both outside the building and inside the Tunnel on the Lower West Terrace.

The narrative of the first assaults in his arrest affidavit switches from sourcing to MPD Body Worn Cameras to what those initial filings call Capitol Police surveillance footage.

For some of the interactions, the FBI admits that the evidence is inconclusive (here, whether after Quaglin pushed an unidentified CP officer he or she fell down).

In a subsequent USCP surveillance footage, QUAGLIN walks through the crowd and approaches the USCP Officers located at the police line. QUAGLIN then begins to verbally engage a USCP Officer. QUAGLIN continues to get closer to the USCP Officer while appearing increasingly agitated and pointing his finger towards USCP Officer. QUAGLIN then proceeds to hold and push USCP Officer by the neck, which appeared to contribute to USCP Officer starting to fall. (Note: Due to obstructions in the view of this portion of the event, it is unclear to the affiant whether USCP Officer completed the fall). A still from this video is shown below with a red arrow above QUAGLIN.

In a filing last night, the government described what previously had been called CP “surveillance video” as, “a video of the crowd believed to taken by a USCP officer around 2:14 p.m.” The other “surveillance video” is similarly described as video believed to be taken by USCP officers. In other words, for interactions like this one — where Quaglin shoves a Capitol Police officer — the FBI can’t say whether the cop falls as a result, because the evidence comes from someone generally filming the crowd rather than a BWC on the assaulted officer’s person.

At other times, these filings rely on fairly distant MPD BWC footage of assaults on CP officers.

Then, around 2:34 p.m., as captured on BWC footage, an unidentified rioter pushes down a USCP officer. Another officer steps in front of the fallen officer. QUAGLIN can then be seen lunging forward and pushing that officer down. Multiple officers then drop their shields as they begin to retreat backwards. QUAGLIN and other unidentified individuals can then be seen picking up the shields and passing them backwards, as captured in the stills below with a red box around QUAGLIN.

Compare that with the clear image, from a BWC video worn by an MPD officer,  showing him at the front of the pack mobbing the tunnel.

And here’s the MPD BWC still from which the FBI IDed what Quaglin was spraying.

The BOLO image that an acquaintance of Quaglin cited as one of the things — but not the primary thing — that placed Quaglin at the insurrection also came from a BWC.

Among the weaknesses in Capitol security that General Russel Honoré’s Capitol Security Review described was that BWCs were not, on January 6, part of Capitol Police gear on the day of the attack.

We also recommend the USCP be equipped with Body-Worn Cameras (BWC), an item not currently in their inventory, to improve police accountability and protect officers from false accusations of misconduct. BWC also provide visual and audio evidence that can independently verify what happened in any given situation, leading to better investigations and prosecutions when needed.

The Quaglin filings show pretty clearly how much easier it is to reconstruct some attacks on MDP officers than CP officers because of the differential equipment (though for some reason, later interactions with MDP officers inside the tunnel are sourced to two videos sourced to YouTubes posted to the Internet).

The real risks of such gaps are made clear by the filings against the men alleged to have sprayed Brian Sicknick with bear (not pepper) spray that may have contributed to his death. As with Quaglin’s alleged assaults, the evidence consists of fairly direct BWC (in this case from a named officer standing next to Sicknick and the other officers affected).

But to see what happened to Sicknick himself, you have to refer to “surveillance” video that happened to pick up the after-effect of the attack.

It’s no wonder it took so long to identify what happened to Sicknick: the government had to rely on other video to understand what had happened to him. These and other filings make it clear that CPD’s lack of BWCs has created key gaps in the understanding of what happened on January 6.

The limits of the Facebook and Google GeoFence warrants

As noted above, one of two Quaglin tipsters learned of his presence at the Capitol via several means, including the BOLO based off a MDP BWC.

But that tipster — and another anonymous one who contacted the FBI even earlier — also pointed to some livestreaming that Quaglin did of his participation. In addition to videos taken from his hotel after the event, an anonymous tipster shared and the acquaintance confirmed viewing a video of Quaglin approaching the Capitol and chanting Proud Boy slogans.

Law enforcement received a tip from an anonymous source providing four “Live” videos recorded from a Facebook account with the vanity name “Chris Trump.” The videos did not list the URL of the Facebook account or the official user name. (A Facebook user can display a vanity name that is different than their official user name and a Facebook user can change their vanity name without changing the official user name.) Each video was a selfie-style video showing an individual identified by the anonymous tipster as “Christopher QUAGLIN, NJ. Extremist.” In one of the Live videos provided by the tipster, QUAGLIN, as shown in the still below, can be seen walking towards the Capitol in the same outfit that QUAGLIN is seen wearing in the footage described above and holding a gas mask. QUAGLIN states “Trump is speaking and everyone is walking there. And I am walking there [showing Capitol building to camera]. And I am ready [showing gas mask in hand]. We will see how it goes. Proud of your boy.”

[snip]

In addition, law enforcement interviewed a witness, Witness 1, who has known QUAGLIN for years, although Witness 1 had not seen him in person for several years. Witness 1 has followed and corresponded with QUAGLIN on social media for years. Witness 1 saw QUAGLIN’s Live videos on January 6, 2021 on his account with the vanity name “Chris Trump.” Witness 1 confirmed that the Live videos described above are some of the same videos Witness 1 saw on January 6, 2021 and that those videos all show QUAGLIN. Witness 1 also stated that he/she saw a photograph that the FBI had published seeking additional information from the public and that he recognized that individual as QUAGLIN. (The photograph, “Photograph 58 AFO” below, was taken from BWC footage described in paragraph 40 above.)2

Witness 1 noted that QUAGLIN used multiple accounts on Facebook and Instagram and was frequently been banned for inflammatory posts online. Witness 1 indicated that QUAGLIN frequently posted on his social media accounts about the 2020 Presidential election, about going to the Capitol on January 6, 2021, and pictures of firearms. Many of QUAGLIN’s posts were deleted on January 7, 2021. Witness 1 indicated that QUAGLIN posted multiple pictures of himself prior to the January 6, 2021 events where he was visible with a beard and consistent in appearance with the “Photograph 58-AFO.”

As I’ve described elsewhere, the government asked Facebook for information on everyone who livestreamed or uploaded video from the Capitol itself, and then they IDed the person who uploaded the video from the subscriber information.

The government received information as part of a search warrant return that Facebook UID 100047172724820 was livestreaming video in the Capitol during these events. The government also received subscriber information for Facebook UID 100047172724820 in response to legal process served on Facebook. Facebook UID 100047172724820 is registered to Chris Spencer (“SPENCER”). SPENCER provided subscriber information, including a date of birth; current city/state, and a phone number to Facebook to create the account. [my emphasis]

A recent arrest affidavit makes it clear that FBI obtained this warrant on January 11.

On January 11, 2021, a search warrant was served upon Facebook to identify Facebook accounts utilized to live stream video in a geographic area that included the interior of the United States Capitol building. One such account identified by Facebook was Facebook user ID 100009155779709, an account in the name of “Michael Joseph.”

But there’s good reason to believe that FBI obtained a preservation order on everything uploaded from the Capitol earlier than that, probably within a day.

As yesterday’s filing makes clear, Quaglin deleted his videos before the FBI could collect them directly from Facebook, even though they served warrants on his accounts to Facebook.

(Because the related social media account was deleted shortly afterwards, law enforcement was not able to determine the exact time this video was recorded, although it would have been presumably before he reached the line and was captured on the BWC in Exhibit A.)

More importantly, by description, he did no livestreaming from the Capitol (he was too busy fighting with cops). That’s the right choice from a civil liberties perspective; livestreaming from the Mall or a nearby hotel room is not proof a crime. But in this case, it likely permitted the destruction of evidence pertaining to how closely Quaglin coordinated his efforts — including sustained assaults on cops — with the Proud Boys.

The FBI got a ton of inculpatory evidence from a Facebook warrant. They even got the message on one social media account recording his deletion of the one he used to livestream that day.

A message sent on January 7, 2021 indicating that he had deleted his other account; and

But did not get those livestreams (or anything else he posted on that alternative account).

Likewise, a warrant to Google showed Quaglin in DC, but location data does not place him at the Capitol.

Google location data places the phone belonging to QUAGLIN in and around Washington, D.C. from January 5-7; specifically, at the Motto Hotel, at the Washington Monument, and at the United States Capitol. On January 5, 2021, QUAGLIN conducted multiple searches for “Motto by Hilton Washington DC City Center” and pulled up driving directions for two Chick-fil-A restaurants in Northeast Washington, D.C. On January 6, 2021 Quaglin conducted multiple Google Maps queries for areas near the National Mall in Washington, D.C.

There are many possible explanations for this: He never entered that far into the Capitol, so he may never have been included in the Google GeoFence at all. But given the mob of people inside that tunnel, it’s also likely that cell service (if Quaglin’s phone was on at all) was really overloaded.

That said, Quaglin’s Google searches do show that he was monitoring the news for references to himself.

QUAGLIN’s Google account history shows multiple Google searches indicating his involvement in the storming of the Capitol. For example, on January 8, 2021, it includes multiple searches for “guy gets bear sprayed at capital.” On January 20, 2021 QUAGLIN’s Google account history shows visits to a webpage titled, “Countries where you can buy citizenship, residency, or passport.” QUAGLIN’s Google account history shows eight visits to the FBI’s “seeking information” for Capitol violence between January 28, 2021 and January 31, 2021. Further, a review of QUAGLIN’s Gmail accounts show multiple purchase notifications from a Costco credit card in Washington, D.C. — specifically, multiple charges at the Motto Hotel on January 5, 2021, multiple charges at a Walgreens convenience store at 801 7th St NW, Washington, D.C. on January 6, 2021, and $128.80 spent at China Town Liquor in Washington, D.C. on January 7, 2021 – both businesses that are a short walking distance from the Motto Hotel.

There’s still a ton of evidence against Quaglin. But the video evidence of his multiple alleged assaults on cops are not terrifically clear (and thus far, they haven’t been IDed by name as some of the other officers assaulted have been). And the government has thus far barely mentioned Quaglin’s association with the Proud Boys, even though Ethan Nordean has pointed to his filing to suggest his attempts to hold off Quaglin’s assaults prove he wasn’t a leader of this riot. Nordean disclaims knowing Quaglin.

The January 6 insurrection was one of the most filmed events in history. It was tracked in damning detail across a range of social media platforms.

But even with a notably dressed, prolific user of social media like Quaglin there are gaps in that panopticon.

86 Minutes: Two Arrests Thwarted and Three Cops Disabled by “Bear Shit”

In the 86 minutes after the Capitol Police first asked for help from the National Guard on January 6, police had to drop two arrests of violent rioters, and three cops — including Brian Sicknick — were temporarily disabled after being sprayed with “bear shit.”

At 1:49 on January 6, Capitol Police Chief Steven Sund asked the Commander of the DC National Guard, General William Walker, for urgent help pushing back the riot attacking the Capitol. According to Walker’s testimony, he loaded Guardsmen onto busses to be able to respond as soon as he got authority, but that approval was not granted and communicated to him for over three hours. Walker testified that he could have reinforced the Capitol within 15 minutes, and indeed, once DOD granted approval, according to Walker’s testimony the Guard arrived within 20 minutes (DOD says it took almost 40 minutes).

At 1:49pm I received a frantic call from then Chief of U.S. Capitol Police, Steven Sund, where he informed me that the security perimeter at the Capitol had been breached by hostile rioters. Chief Sund, his voice cracking with emotion, indicated that there was a dire emergency on Capitol Hill and requested the immediate assistance of as many Guardsmen as I could muster.

Immediately after the 1:49pm call with Chief Sund, I alerted the Army Senior Leadership of the request. The approval for Chief Sund’s request would eventually come from the Acting Secretary of Defense and be relayed to me by Army Senior Leaders at 5:08pm – 3 hours and 19 minutes later. We already had Guardsmen on buses ready to move to the Capitol. Consequently, at 5:20pm (in under 20 minutes) the District of Columbia National Guard arrived at the Capitol.

Had DOD worked the way they had in the past then, the Capitol Police might have had reinforcements from the Guard at the Capitol by around 2:10 PM.

About five minutes after the time General Walker says the Guard could have arrived, around 2:15, Hunter Ehmke allegedly started trying to punch through a window from a ledge outside the Rotunda.

Officer Fluke observed Ehmke pointing towards the window, followed by looking at the crowd to his south and waving his hand as if to summon others over to his position. Ehmke repeated the sequence of gestures again. Officer Fluke shouted out, “They’re going to break the window” during this time in hopes to bring attention from fellow officers.

An officer who saw what Ehmke was doing looked at the hundreds of rioters he was trying to repel then back towards Ehmke, only to see that Ehmke had punched the window and broken it.

Officer Fluke looked east to focus back on the crowd pushing on the shields and gave orders for the growing crowd to get back. Officer Fluke turned to look north again and observed Ehmke with a balled fist, pulling his arm back and twisting his upper body. Ehmke then swung forward striking a pane of the window about shoulder level of Ehmke. Officer Fluke began to run toward Ehmke while continuing to hold his shield in both hands.

Officer Fluke managed to knock Ehmke down and two other officers came to help arrest him. Others attempted to set up a perimeter to protect the now-broken window and create space for an arrest. But as confrontations elsewhere grew more urgent and a crowd started demanding that the cops let Ehmke go, police released him and told him not to come back.

As the officers discussed an action plan, the disturbance caused individuals of the crowd facing the Rotunda doors to divert their attention towards the approximately 10 officers in the northwest corner of the landing. Individuals in the throng began to show aggression by pointing fingers and shouting obscenities. One unidentified individual threatened Officer Fluke and the other officers, stating “you’re not leaving with him”, while pointing in the direction of Officer Fluke and Ehmke. Due to the growing aggression of the large crowd that far outnumbered the officers and the exigent circumstances at the time, officers made the decision to allow Ehmke depart under his own power.

Eight minutes after the confrontation with Ehmke began, at 2:23, Julian Khater and others were wrestling with police over a set of bike rack barriers. Khater appears to have sprayed what he had called, “bear shit” towards the cops. Three cops, including Brian Sicnick, withdrew from their position. All three took at least 20 minutes recovering from the toxic spray before they could return to the fight against the insurrectionists.

Officer Chapman’s BWC shows that at 2:23 p.m., the rioters begin pulling on a bike rack to Chapman’s left, using ropes and their hands to pull the rack away. Seconds later, KHATER is observed with his right arm up high in the air, appearing to be holding a canister in his right hand and aiming it in the officers’ direction while moving his right arm from side to side. Officer Chapman’s BWC confirms that KHATER was standing only five to eight feet away from the officers.

[snip]

In reviewing the surveillance footage and BWC video, your affiant observes that Officers Sicknick, Edwards and Chapman, who are standing within a few feet of KHATER, all react, one by one, to something striking them in the face. The officers immediately retreat from the line, bring their hands to their faces and rush to find water to wash out their eyes, as described in further detail below and as captured in the following screen shots.

While Sicknick returned to his work, that spray may have contributed to his death.

About eight minutes after Khater sprayed Sicknick and two others, starting at 2:31, Mark Ponder appears on camera beating an officer’s shield with a pole. After he broke that pole, he found another more substantial one.

Moments later, shortly before 2:32 p.m. PONDER reemerges from the crowd holding another long pole. This second pole appears to be thicker than the first pole and is colored with red, white, and blue stripes.

17 minutes after Ponder first grabbed the pole, at 2:49, he started swinging it more aggressively at individual cops, striking one.

As PONDER swings the pole in the direction of the officers, he struck Officer #3 once in the left shoulder.

Officer 3 and others tackled Ponder and started moving to arrest him. They found his ID at 3:03, but Ponder apparently lied about where he currently lived. By 3:15 — 86 minutes after Sund first requested assistance — the officers learn there’s no transport available to complete the arrest of Ponder at that time. So, as happened with Ehmke less than an hour earlier, the cops let him go, instructing him not to come back.

Ponder remained at the riot for almost two more hours.

At 4:32, according to DOD’s timeline, Acting Secretary of Defense Christopher Miller approved a deployment of the Guard to help at the Capitol. General Walker didn’t receive that order for another 30 minutes. Sometime between 5:20 (per Walker) and 5:40 (per DOD), the Guard arrived at the Capitol and started to help.

That is, in the first 86 minutes of the three hour period between when Sund asked for help and the Guard showed up, police moved to arrest two violent insurrectionists, only to be forced to let them go, and (as NYT had noted in a story some time ago), Brian Sicknick was sprayed with a toxic substance that may have led to his death.

It took 70 days for the FBI to track Ponder down after he was first released, and almost as long — 67 days — to arrest Julian Khater (likely delaying efforts to identify of the substance used against Sicknick in the process). Part of that delay must be attributed to the three hours it took DOD to provide relief to the Capitol Police.

The FBI Was Still Collecting Evidence Yesterday that Might Explain Brian Sicknick’s Death

I want to make some observations about timing that may help to explain why the government wasn’t prepared to charge Julian Khater and George Tanios in Brian Sicknick’s death, if indeed they ever will be able to, when they arrested the men yesterday.

The investigation really seems to have come together in recent weeks and the FBI seems to have spent much of the last ten days investigating Tanios, who brought the substance Khater allegedly sprayed at Sicknick to the Capitol.

The arrest affidavit suggests it would have been difficult to have IDed Khater (much less establish probable cause) without the footage from MPD Officer Chapman’s body camera.

On the video, KHATER continues to talk animatedly with TANIOS. At approximately 2:20 p.m., KHATER walks through the crowd to within a few steps of the bike rack barrier. KHATER is standing directly across from a line of law enforcement officers to include U.S. Capitol Police (“USCP”) Officers B. Sicknick and C. Edwards, and Metropolitan Police Department (“MPD”) Officer D. Chapman, who was equipped with a functioning body worn camera (“BWC”) device.

Officer Chapman’s BWC shows that at 2:23 p.m., the rioters begin pulling on a bike rack to Chapman’s left, using ropes and their hands to pull the rack away. Seconds later, KHATER is observed with his right arm up high in the air, appearing to be holding a canister in his right hand and aiming it in the officers’ direction while moving his right arm from side to side. Officer Chapman’s BWC confirms that KHATER was standing only five to eight feet away from the officers.

That’s some of the video that has taken longest to exploit (or longest for the FBI to be willing to share publicly), not least because there wasn’t a publicly curated set like the Parler videos released by ProPublica that allowed open source investigation.

Chapman’s BWC video would permit the FBI to ID Khater (the guy who actually used the spray). Still, he’s got a fairly late FBI Be On the Lookout number: 190, meaning it took some time for the FBI to isolate a still to release.

Once the FBI IDed Khater, though, they would have seen that he was clearly working in tandem with Tanios (which is effectively what the arrest affidavit says). Not only was Khater working with him, but Tanios was the guy carrying the bear spray, and so is more likely to be the guy who’d have another can of the substance in his backpack at home or receipts to identify precisely what was used.

The FBI tweeted out Tanios’ BOLO on March 4 (they released it with the pictures of two other guys; I’m not sure what to make of that).

The arrest warrant for the two men was approved on March 6, which would be quick work if they really were working off a BOLO released March 4 (though they likely got a warrant as soon as they obtained probable cause in case they had to arrest the men quickly).

That said, the arrest warrant wasn’t executed until March 14. That’s not that surprising–the FBI would have wanted to get this arrest right, coordinating teams so that both men would be arrested at the same time. This warrant for Tanios’ house, business, car, and devices, shows that the FBI was physically surveilling Tanios from March 5 through March 8 to identify his movements, his home, his business, and his car.

As late as March 14, the day FBI obtained the warrant, they were still waiting to receive returns from a warrant served on AT&T for Tanios’ phone records. Interestingly, Tanios called Khater at 2:42PM on January 6, less than twenty minutes after Khater allegedly sprayed Sicknick and others (another cop sprayed Khater, so he may have been recovering from pepper spray himself, but Tanios didn’t stick around to help Khater — they were separated by then).

Still, the FBI has been working all of these January 6 cases on an arrest first, further investigate later basis, partly because of the timing of the attack, and partly because FBI had done so little investigation into almost all the subjects of investigation. As Chris Wray said in testimony recently, the arrest of these subjects (sometimes just for trespass crimes) is often just the beginning of the investigation into them. With virtually all the defendants, the FBI is getting enough to arrest them, then doing the kind of investigation that normally precedes in an arrest, such as subpoenaing social media, to say nothing of searching the smart phones where subjects store much of the evidence about intent.

All of which is to say that the FBI likely only obtained evidence that would be needed to charge Khater and Tanios in Sicknick’s death yesterday — including, possibly, identifying what substance Khater allegedly sprayed at Sicknick — and that will take some weeks to fully exploit.

So it’s too soon to know whether the FBI will be able to tie that bear spray to Sicknick’s death.

Two Arrested in Officer Sicknick Assault

On Sunday, the government arrested two men, Julian Elie Khater and George Pierre Tanios, on charges of conspiring to attack three police officers, including Brian Sicknick.

According to the affidavit in support of the criminal complaint, Khater and Tanios were at the U.S. Capitol on Jan. 6, 2021, and were observed in video footage working together to assault law enforcement officers with an unknown chemical substance by spraying officers directly in the face and eyes.  During the investigation, it is alleged that law enforcement discovered video that depicted Khater asking Tanios to “give me that bear s*it.” Tanios replied, “Hold on, hold on, not yet, not yet… it’s still early.”  Khater then retrieved a canister from Tanios’ backpack and walked through the crowd to within a few steps of the police perimeter.  The video shows Khater with his right arm up high in the air, appearing to be holding a canister in his right hand and aiming it at the officers’ direction while moving his right arm from side to side.  The complaint affidavit states that Officers Sicknick, Edwards, and Chapman, who were all standing within a few feet of Khater, each reacted to being sprayed in the face.  The officers retreated, bringing their hands to their faces and rushing to find water to wash out their eyes.

The substance Khater allegedly sprayed caused scabs on the face of one of the officers hit, Officer Edwards, for weeks. All struck with it said the substance was as strong as anything they’ve encountered in their experience as police officers. In addition to assault charges, both were charged with conspiracy to assault police reflecting a degree of planning and intentionality.

Some Key Gaps in the January 6 Story [Updated]

DOJ continues to roll out arrests of people involved in the January 6 coup attempt.

But there are some obvious gaps in the (public) story so far.

Arrests relating to over 100 police assaults

In a filing submitted over the weekend, the government asserted that 139 cops were assaulted during the insurrection.

In the course of the insurrection, approximately 81 Capitol Police and 58 MPD officers were assaulted,

In its website tracking the people arrested so far, DOJ describes assault charges being filed against 12 people (updated on 2/1 to total 17 people):

  1. Daniel Page Adams, whose arrest affidavit describes engaging in a “direct struggle with [unnamed] law enforcement officers” (his cousin, Cody Connell, described the exchange as a “civil war”).
  2. Zachary Alam, who pushed cops around as he was trying to break into the Speaker’s Lobby.
  3. Matthew Caspel, who charged the National Guard.
  4. Scott Fairlamb, who was caught in multiple videos shoving and punching officers (one who whom is identified but not named); Cori Bush has said she was threatened by him last summer.
  5. Kyle Fitzsimons, who charged officers guarding the doorway of the Capitol.
  6. Alex Harkrider, who after being filmed fighting with police at the door of the Capitol, posted a picture with a crowbar labeled, “weapon;” he was charged with abetting Ryan Nichols’ assault.
  7. Michael Foy, a former Marine who was caught on multiple videos beating multiple cops with a hockey stick.
  8. Robert Giswein, who appears to have ties to the Proud Boys and used a bat to beat cops.
  9. Emanuel Jackson, whom videos caught punching one officer, and others show beating multiple officers with a metal baseball bat.
  10. Chad Jones, who used a Trump flag to break the glass in the Speaker’s Lobby door just before Ashli Babbitt was shot and may have intimidated three officers who were pursuing that group.
  11. Edward Jacob Lang, who identified himself in a screen cap of a violent mob attacking cops and who was filmed slamming a riot shield into police and later fighting them with a red baseball bat.
  12. Mark Jefferson Leffingwell, whom a Capitol Police officer described in an affidavit punching him.
  13. Patrick Edward McCaughey III, who was filmed crushing MPD Officer Daniel Hodges in one of the doors to the Capitol.
  14. Ryan Nichols, who was filmed wielding a crowbar and yelling, “This is not a peaceful protest,” then spraying pepper spray against police trying to prevent entry to the Capitol.
  15. Dominic Pezzola, a Proud Boy who stole a shield from cops.
  16. Ryan Samsel, who set off the riot by giving a cop a concussion; he appears to have coordinated with Joe Biggs.
  17. Robert Sanford, who was filmed hitting Capitol Police Officer William Young on the head with a fire extinguisher.
  18. Peter Schwartz, a felon who maced several cops.
  19. Barton Wade Shively, who pushed and shoved some police trying to get into the Capitol, punched another, then struck one of those same cops later and kicked another.

While a number of these men — Fairlamb, Jackson, Nichols, Shively, among others — allegedly assaulted multiple cops, that’s still far below the total of 139 alleged assaults.

That says the FBI is still looking for a significant number of people in assaults on police. Over the weekend, the FBI released BOLO posters showing 12 other men believed to have assaulted police — including two targeting individuals specifically.

The murder of Brian Sicknick

Of particular note, while the FBI has released a BOLO poster focused on the men who assaulted MPD Officer Michael Fanone, no such post has identified suspects as those suspected of killing Brian Sicknick (though note that Robert Sanford did assault a different officer with a fire extinguisher). There are many possible explanations for why his murder might be treated differently (not least that the culprits are more likely to flee).

But we haven’t seen anything to suggest who assaulted Sicknick badly enough to lead to his death.

The DNC and RNC bomber

On January 21, the FBI increased their reward for information leading to the guy believed to have planted pipe bombs at the DNC and RNC. But there’s no sign they’ve found the guy yet.

Rudy’s interlocutors

On January 15, Rudy Giuliani posted texts involving “James Sullivan” claiming he was going to blame the riot on “John,” that he had gotten “my agent out of trouble along with three other” Utahans, and mentioning “Kash.”

“John” is James’ brother, John Sullivan, someone long ago IDed by leftist activists as a provocateur who had been charged two days earlier. He was arrested on January 14, but bailed the next day.

“Kash,” is Kash Lee Kelly, whose parole officer IDed him at the scene. His bail in the gang-related drug conviction he was awaiting sentencing for in IL was revoked on January 14.

John Sullivan is the only Utahan that GWU identifies as being from Utah, meaning the three Utahans, in addition to James Sullivan, he claims to have gotten out of trouble thus far are (publicly at least) still not in trouble. No one yet arrested is identifiable as his “agent,” either.

That means, key people who might be a pivot between the rioters and Rudy Giuliani, who was coordinating events in Congress with an eye to how much time the rioters would give him, remain (again, publicly at least) at large.

There are around 73 sealed cases in the DC District, many of which probably having nothing to do with the January 6 insurrection and some of which are surely defendants already publicly charged whose cases have not yet been unsealed in the DC docket. The reasons for unsealing could vary — though the most common would be that someone hasn’t been arrested yet). Still, some of these sealed cases may be people who’ve already moved to cooperate.

Update, 2/1: I’ve updated the list of those charged with assault.

OpSec Shaming Misses the Terrorists for the Forest of Bozos They Hid Behind

It has been amusing reading the affidavits justifying the arrest of the January 6 insurrectionists to see how easy many of them made it for the FBI.

Yesterday’s favorite example is Samuel Camargo. He posted a picture with some kind of trophy stolen from the Capitol building to his Instagram account and a confession that he had been in the riot on Facebook. After some of his associates reported him and then an FBI agent interviewed him, Camargo posted to his Facebook account claiming — notwithstanding the agent’s view that, “Camargo [had become] uncooperative, questioning your affiant’s loyalty to the constitution, and advised the interviewing agent he had no information to provide” — that he had been cleared of any crime related to the insurrection.

It didn’t work out that way.

InfoSec and cyber journalists are beginning to report on it, too. This happens to be one example, though I’m seeing a number of examples.

But while federal law enforcement has significant legal and technical resources at its disposal — like the ability to get warrants to phone or tech companies to see whose phones were in an area at a specific time, for instance — that’s proven unnecessary for a number of people who have been charged so far.

It goes on to review the OpSec failures of nine different coup-conspirators (and Camargo is not one of them).

I get the sense of schadenfreude that the seeming certainty among insurrectionists that they would not only be victorious but their victory celebrations would be risk-free has instead led to their arrests. I’m especially sympathetic to communities of color for whom similar behavior might have gotten them killed.

But with a few exceptions, notably the identification of “zip tie guys” Larry Rendall Brock (by his ex-wife) and Eric Munschel, as well as the identification of Proud Boys member, “Spaz,” as the retired Marine Dominic Pezzola (the latter of whom was arrested with the help of two seeming insider cooperating witnesses), few of the arrests so far have been of the most dangerous insurrectionists.

For example, even though the FBI posted this image of the person suspected of placing bombs at both the RNC and DNC on the day of the attack, there’s no public indication that the FBI has any leads on who it is.

According to former Capitol Police Chief Steven Sund, the discovery of the bombs distracted his leadership team from the growing riot at a key moment on January 6.

Sund told NPR on Friday that he increasingly believes the insurrection was part of a coordinated, planned attack on the Capitol. Specifically, Sund believes that reports of pipe bombs planted at the headquarter offices of the Republican National Committee and the Democratic National Committee in southeast Washington were part of an effort to distract police as the violent mob approached the Capitol complex.The Justice Department said it has “no direct evidence of kill or capture teams” but is still looking into what kind of planning there was.

Sund said moments before those reports came through, he was in the operations center for Capitol Police and watching the rally with President Trump at the Ellipse.

“We had the volume up a little bit so I can kind of hear what was going on, listening for anything — anything that was going on down there,” Sund said. Then “we had to turn the volume down to, you know, again, to direct our attention toward the first pipe bomb that was over at the Republican National Committee.”

The FBI has said the first pipe bomb was reported at 1 p.m. ET at the RNC in southeast Washington, followed by a report of a second pipe bomb at the DNC at 1:15 p.m. A suspect in that case has not be identified.

“I think that’s all part of the concerted and coordinated efforts that led to the violent attack,” Sund said. “Those were diversionary tactics to pull resources away from the Hill in advance of that attack. I honestly believe that.”

Likewise, I’ve seen no indication that the FBI has leads on members of a team of men who quietly snaked through the loud mouths on the stairs and into the Capitol in military formation, even though they wore insignia from the Oath Keepers, one of the most closely watched right wing terrorist groups.

As President Donald Trump’s supporters massed outside the Capitol last week and sang the national anthem, a line of men wearing olive-drab helmets and body armor trudged purposefully up the marble stairs in a single-file line, each man holding the jacket collar of the one ahead.

The formation, known as “Ranger File,” is standard operating procedure for a combat team that is “stacking up” to breach a building — instantly recognizable to any U.S. soldier or Marine who served in Iraq and Afghanistan. It was a chilling sign that many at the vanguard of the mob that stormed the seat of American democracy either had military training or were trained by those who did.

[snip]

A close examination of the group marching up the steps to help breach the Capitol shows they wore military-style patches that read “MILITIA” and “OATHKEEPER.” Others were wearing patches and insignias representing far-right militant groups, including the Proud Boys, the Three Percenters and various self-styled state militias.

Thus far, most of the charges involve involve illegal entry and interfering with cops. It would be easy for law enforcement to focus on the chum along with the murderers of Brian Sicknick, while concentrating less closely on the people whose good OpSec has not only allowed them to delay capture, but seems to have succeeded in ensuring the Capitol would be as vulnerable as possible. Worse still, with limitations on resources in the DC District Court — most notably a scarcity of grand jury time because of COVID — the flood of idiots entering the system might delay the pursuit of more dangerous terrorists.

Yes, let’s have our fun. Let’s use the ease with which some have been caught as a way to scare the terrorism tourists from showing up on Inauguration Day or in their state capitals, to say nothing of exposing them to shame in their communities.

But let’s remember that, to a significant extent, the people taking selfies and trophies from the Capitol building were largely the camouflage behind which more dangerous men appear to have hidden.

Update: After I posted on Sunday, the government arrested several more more dangerous people. Most were all still identified via public videos. But working through these networks will likely lead to those who avoided closer video scrutiny.

Investigate Tommy Tuberville’s Pre-Speech and Debate Actions

There has been a lot of press focus in the last two days on the role that Josh Hawley and Ted Cruz played in Wednesday’s insurgency. Hawley even lost his book deal for playing a part in inciting the mob.

There should be more focus, in my opinion, on Tommy Tuberville.

I say that for two reasons.

First, by all appearances, Hawley and Cruz were just being disgusting opportunists. They saw the populist mantle, which until Wednesday was assumed to be critical to winning a 2024 presidential primary, and ran to claim it. It’s unknown how closely they coordinated with Trump in their cynical attempts to exploit the moment.

Tuberville, however, appears to have been actively coordinating with Trump during the uprising.

And his involvement in this conspiracy dates to mid-December, weeks before he was sworn in, and so a time when his activities would have somewhat less investigative protection under the speech and debate clause. After he first floated serving as the then sole Senator who would challenge the certification of the vote, Trump reached out to Tuberville directly.

On Sunday, Trump said in a radio interview that he had spoken with Sen.-elect Tommy Tuberville (R-Ala.) about challenging the electoral vote count when the House and Senate convene on Jan. 6 to formally affirm President-elect Joe Biden’s victory.

“He’s so excited,” Trump said of Tuberville. “He said, ‘You made me the most popular politician in the United States.’ He said, ‘I can’t believe it.’ He’s great. Great senator.”

Tuberville’s campaign did not respond to a request for comment on Trump’s statement, which the president made in an interview with Rudolph W. Giuliani, his personal lawyer, on New York’s WABC radio station.

Trump’s conversation with Tuberville is part of a much broader effort by the defeated president to invalidate the election. He is increasingly reaching out to allies like Giuliani and White House trade adviser Peter Navarro for ideas and searching his Twitter feed for information to promote, according to Trump advisers, who spoke on the condition of anonymity to discuss private conversations.

And we know that Tuberville remained in direct contact with the conspirators because on Wednesday, the geniuses trying to pull of this coup tried to call him twice. First, literally at the moment Senators were being evacuated because rioters had breached the building, Trump attempted to call Tuberville directly but instead dialed Mike Lee’s cell phone.

With a mob of election protesters laying siege to the U.S. Capitol, Sen. Mike Lee had just ended a prayer with some of his colleagues in the Senate chamber when his cellphone rang.

Caller ID showed the call originated from the White House. Lee thought it might be national security adviser Robert O’Brien, with whom he’d been playing phone tag on an unrelated issue. It wasn’t O’Brien. It was President Donald Trump.

“How’s it going, Tommy?” the president asked.

Taken a little aback, Lee said this isn’t Tommy.

“Well, who is this? Trump asked. “It’s Mike Lee,” the senator replied. “Oh, hi Mike. I called Tommy.”

Lee told the Deseret News he realized Trump was trying to call Sen. Tommy Tuberville, the newly elected Republican from Alabama and former Auburn University football coach. Lee walked his phone over to Tuberville who was talking to some colleagues.

“Hey, Tommy, I hate to interrupt but the president wants to speak with you,” Lee said.

Tuberville and Trump talked for about five to 10 minutes, Lee said, adding that he stood nearby because he didn’t want to lose his cellphone in the commotion. The two were still talking when panicked police ordered the Capitol to be evacuated because people had breached security.

As police were getting anxious for senators to leave, Lee walked over to retrieve his phone.

“I don’t want to interrupt your call with the president, but we’re being evacuated and I need my phone,” he said.

Tuberville said, “OK, Mr. President. I gotta go.”

Then, hours after Rudy Giuliani called for “trial by combat,” after the mob had already breached the building, after one of the insurgents had been killed, hours after Trump had released a video pretending to oppose the violence, possibly even after Capitol Police officer Brian Sicknick suffered injuries that would ultimately kill him, Rudy attempted to call Tuberville. He also dialed the number of a different [unidentified] Senator. Rudy left a message suggesting that he expected Tuberville would heed his requests, a message that seemed to suggest the entire process was an attempt to buy President Trump’s disinformation teams a day to put together new false allegations.

Senator Tuberville? Or I should say Coach Tuberville. This is Rudy Giuliani, the president’s lawyer. I’m calling you because I want to discuss with you how they’re trying to rush this hearing and how we need you, our Republican friends, to try to just slow it down so we can get these legislatures to get more information to you. And I know they’re reconvening at 8 tonight, but it … the only strategy we can follow is to object to numerous states and raise issues so that we get ourselves into tomorrow—ideally until the end of tomorrow.

I know McConnell is doing everything he can to rush it, which is kind of a kick in the head because it’s one thing to oppose us, it’s another thing not to give us a fair opportunity to contest it. And he wants to try to get it down to only three states that we contest. But there are 10 states that we contest, not three. So if you could object to every state and, along with a congressman, get a hearing for every state, I know we would delay you a lot, but it would give us the opportunity to get the legislators who are very, very close to pulling their vote, particularly after what McConnell did today. It angered them, because they have written letters asking that you guys adjourn and send them back the questionable ones and they’ll fix them up.

So, this phone number, I’m available on all night, and it would be an honor to talk to you. Thank you.

This message is the most direct piece of evidence, thus far, that Trump and his co-conspirators planned to use the insurgency as a delay tactic to buy time to try to concoct new claims about the results. It shows that Rudy remained engaged with the attempt to obstruct the lawful counting of the vote after the violence that had delayed it.

Admittedly, both of these calls, like all communications involving either Hawley or Cruz, would be otherwise (if Trump and Rudy hadn’t fucked up) difficult to access given Tuberville’s speech and debate protections. But his communications with the President prior to being sworn in just days earlier would not have the same presumptive protections. And since Rudy was calling him directly, that wouldn’t be privileged either.

The place to start the investigation into Trump’s role in the coup attempt is not with Hawley and Cruz. It’s with Tuberville.