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How Tucker Carlson Duped the People His Producer Called “Dumb … Cousin-Fucking … Terrorists”

In response to Tucker Carlson’s misleading propaganda claiming that Jacob Chansley was just a peaceful tourist escorted at all times by his own dedicated cop, a number of January 6 defendants are demanding mistrials because of claimed Brady violations.

Dominic Pezzola’s attorneys, for example, argued that the video released by Tucker shows that the Senate never had to recess, which (they claim) undermines the government’s obstruction claim against the Proud Boys.

Never during this trial has there been any evidence of any raucous or extremely disruptive or violent demonstration in the Senate chamber. (There have been a few images of demonstrators sitting on chairs or standing in the well of the Senate.)

Then came the Tucker Carlson show on the evening of March 6, 2023.

On March 6, Tucker Carlson released shocking footage from January 6th, 2021 that showed “QAnon Shaman” Jacob Chansley walking calmly through the halls of the Capitol with two Capitol Police officers. At one point, one of the officers appears to try opening a door or elevator, and then turns and leads Chansley in another direction. Later in the video clips, Chansley is seen walking past nine police officers gathered in a hallway intersection. Chansley and his police escorts walk right past the nine officers without any resistance.

And then the Tucker Carlson show presented footage of officers calmly escorting Chansley (and apparently other protestors) into the Senate chamber. The Washington Post wrote that Albert Watkins, Chansley’s attorney through sentencing in November 2021, said he had been provided many hours of video by prosecutors, but not the footage which Carlson aired Monday night. He said he had not seen video of Chansley walking through Capitol hallways with multiple Capitol Police officers.

“What’s deeply troubling,” Watkins said Tuesday, “Is the fact that I have to watch Tucker Carlson to find video footage which the government has, but chose not to disclose, despite the absolute duty to do so. Despite being requested in writing to do so, multiple times.” [emphasis original]

The government’s response lays out that, in fact, both Chansley’s attorneys and Pezzola’s received this video in global discovery (there was a 10-second segment not released until January that was not exculpatory, which likely shows a Senator fleeing even as Pezzola stands just feet away — see below).

Pezzola’s motion describes “shocking footage” of Chansley “walking calmly through the halls of the Capitol” with two police officers who purportedly “escort[] Chansley (and apparently other protestors) into the Senate chamber.” ECF 679, at 4. Pezzola quotes Chansley’s former attorney for the proposition that the government “withheld” this footage from discovery in Chansley’s and Pezzola’s cases. Id. The footage is not shocking, and it was not withheld from Pezzola (or Chansley, in any material respect, for that matter).

The footage in question comes from the Capitol’s video surveillance system, commonly referred to as “CCTV” (for “closed-circuit television”). The Court will be familiar with the numerous CCTV clips that have been introduced as exhibits during this trial. The CCTV footage is core evidence in nearly every January 6 case, and it was produced en masse, labeled by camera number and by time, to all defense counsel in all cases.3 With the exception of one CCTV camera (where said footage totaled approximately 10 seconds and implicated an evacuation route), all of the footage played on television was disclosed to defendant Pezzola (and defendant Chansley) by September 24, 2021.4 The final 10 seconds of footage was produced in global discovery to all defense counsel on January 23, 2023. Pezzola’s Brady claim therefore fails at the threshold, because nothing has been suppressed. United States v. Blackley, 986 F. Supp. 600, 603 (D.D.C. 1997) (“For an item to be Brady, it must be something that is being ‘suppress[ed] by the prosecution.’”) (quoting Brady v. Maryland, 373 U.S. 83, 87 (1963)).

While discovery in this case is voluminous, the government has provided defense counsel with the necessary tools to readily identify relevant cameras within the CCTV to determine whether footage was produced or not. Accordingly, the volume of discovery does not excuse defense counsel from making reasonable efforts to ascertain whether an item has been produced before making representations about what was and was not produced, let alone before filing inaccurate and inflammatory allegations of discovery failures.

3 The productions excluded a limited set of footage that the Capitol Police designated as security information, such as X-Ray machine feeds and views of evacuation routes and Sensitive Compartmented Information Facility (“SCIF”) office lobbies.

4 The remaining CCTV was disclosed in global discovery on January 23, 2023. It similarly – as with other CCTV – depicts defendant Chansley outside of the Senate Chamber with law enforcement, after his initial breach of the Chamber.

It’s hard to overstate how much this exchange vindicates DOJ’s decision to make all the January 6 video available to all defendants, which delayed trials for probably six months, but which ensured that at the moment defendants like Chansley and Pezzola started claiming they didn’t get something, DOJ could point to when they in fact did receive it.

DOJ rebuts Pezzola’s argument that any of this is exculpatory, relying, in part, on former Army Staff Sergeant Joe Biggs’ description of overwhelming the Capitol.

Pezzola’s argument seems to be that the snippets of Chansley’s movements that were televised by Carlson establish that there was no emergency necessitating the suspension of proceedings. The televised footage lacks the context of what occurred before and after the footage. Chansley entered the building as part of a violent crowd that gained access as a result of Pezzola’s destruction of a window and he traveled with Pezzola during the initial breach. And just as Defendant Biggs had recounted in a recorded statement after January 6, 2021, by the time Pezzola forcibly breached the Capitol and Chansley rode his coattails, the mob—through the sheer force of its size and the violence of those within it—had wrested control of portions of the Capitol grounds and the Capitol itself from a vastly outnumbered U.S. Capitol Police force. 5 As a result, for a period that afternoon, those defending the Capitol were in triage mode—trying to deal with the most violent element of those unlawfully present, holding those portions of the Capitol that had not yet been seized by rioters, and protecting those Members and staffers who were still trapped in the Capitol.

5 Biggs stated, in part: “When you’re holding a position, like a fort, and you’re being overrun, if there’s three of you or four of you, and you’re outnumbered a hundred to one, are you gonna sit there and just go, ‘I’m holding the door’? No, you’re just gonna get your ass beat. That’s already gone. if that many people show up to your house, there’s nothing you can do about it.” Gov’t Ex. 611B. Biggs later continued, “You’re gonna stand up to [] tens of thousands of people storming that? No, that’s stupid. You step [] aside. That puts less chance of anyone getting hurt or anything like that, and you allow it to happen.” Id.

DOJ also lays out specifically how Tucker chose to release only video from after the damage — in the form of the violent breach of the Capitol and the decision to flee the Senate — had been done.

Chansley piggybacking on Pezzola’s violent breach of the Capitol provides more than enough evidence of his corrupt intent to interfere with Congress that day. But there is much more evidence of his and others’ conduct. The televised footage shows Chansley’s movements only from approximately 2:56 p.m. to 3:00 p.m. Prior to that time, Chansley had, amongst other acts, breached a police line at 2:09 p.m. with the mob, entered the Capitol less than one minute behind Pezzola during the initial breach of the building, and faced off with members of the U.S. Capitol Police for more than thirty minutes in front of the Senate Chamber doors while elected officials, including the Vice President of the United States, were fleeing from the chamber. Chansley then entered the Senate Gallery, where he proceeded to scream obscenities while other rioters rifled through the desks of U.S. Senators on the floor below. All these actions were captured by Senate floor and/or CCTV cameras. In sum, Chansley was not some passive, chaperoned observer of events for the roughly hour that he was unlawfully inside the Capitol. He was part of the initial breach of the building; he confronted law enforcement for roughly 30 minutes just outside the Senate Chamber; he gained access to the gallery of the Senate along with other members of the mob (obviously, precluding any Senate business from occurring); and he gained access to and later left the Senate floor only after law enforcement was able to arrive en masse to remove him. It is true that a sole officer, who was trying to de-escalate the situation, was with Chansley as he made his way to the Senate floor after initially breaching the Chamber, as the televised footage reflects.6 But the televised footage fails to show that Chansley subsequently refused to be escorted out by this lone officer and instead left the Capitol only after additional officers arrived and forcibly escorted him out.

6 Notably, this officer’s statement regarding these events was also disclosed in discovery to Chansley’s attorney on May 19, 2021.

It’s a classic lesson in how propaganda is made, by focusing on the least damning part of a story and suppressing the rest. It happens to have been released in the same period where the Dominion lawsuit revealed that Tucker’s then investigative producer, Alex Pfeiffer, likened Tucker’s own viewers to “dumb,” “cousin-fucking” “terrorists.”

“Might wanna address this, but this stuff is so f—— insane. Vote rigging to the tune of millions? C’mon,” Shah wrote.

Carlson’s producer, Alex Pfeiffer, responded: “It is so insane but our viewers believe it so addressing again how her stupid Venezuela affidavit isn’t proof might insult them.”

Shah advised that Carlson should mention the affidavit noting it was “not new info, not proof” but then quickly “pivot to being deferential.”

Pfeiffer, who has since left the network, answered that the delicate dance was “surreal.”

“Like negotiating with terrorists,” he added, “but especially dumb ones. Cousin f—– types not saudi royalty.”

The kerfuffle also gave journalists an opportunity to go back and ask for the video used in the Chansley case to be released to journalists.

One of the videos newly released to journalists shows the mob closing in on the Senate and — I suspect this may be the 10-second clip that was originally withheld — one or more Senators fleeing as a single cop holds off the mob by yelling “back off” repeatedly.

Kyle Cheney, who first pointed to this segment, suspects the fleeing Senator may be Chuck Grassley.

In other words, what we’ve learned from this incident is that Tucker is the one lying about what happened. DOJ, in fact, had been withholding some of the most damning video from the public but not defense attorneys, and Tucker’s propaganda effort has provided yet another glimpse of how many close calls the police managed to avert on January 6.

How J6C’s Obstinance on Transcripts Enabled Dominic Pezzola’s Attempt to Sow Conspiracy Theories

On Friday, lawyers for Proud Boy Dominic Pezzola (who are among the more conspiratorial of the Proud Boy defense attorneys) filed a motion for a mistrial claiming that the “Winter Palace” document Enrique Tarrio received from one of his at least three girlfriends was created by the government. Here’s how the document was admitted as evidence last Thursday.

At issue is testimony that Samuel Armes provided to the January 6 Committee (and, as we’ll see, a grand jury) regarding his recognition that a document he created as part of imagining how an attack on the electoral certification would happen was altered to become the Winter Palace document.

Pezzola’s lawyer, Robert Root (who joined his team days before trial started) argued that when Judge Kelly ruled the document was admissible back in December, defense attorneys had not yet seen Armes’ testimony, and so could not argue that Armes — who claimed he had been trained to be a spook — was a government agent framing the Proud Boys.

According to the Politico article, Ms. Flores also gave an interview to the Jan. 6 Committee. And Ms. Flores reportedly testified that Armes was the author of the entirety of “1776 Returns” and that this FBI and CIA member or associate asked her to share it with Tarrio.

If true, this means that the most damning document in this trial was authored by the intelligence community—someone “groomed” by the FBI itself. And this CIA and FBI asset requested Tarrio’s friend to share the document with Tarrio just prior to January 6. [emphasis original]

The filing relies heavily on this Politico story, which extrapolates about a communication the January 6 Committee had with the girlfriend in question, Eryka Flores, but which was not released as a transcript.

In my opinion, this filing was designed first and foremost as bait for Jim Jordan to claim that even the Proud Boy prosecution is just the Deep State trying to frame Donald Trump, and only secondarily as yet another of the often frivolous motions for a mistrial defense attorneys have lodged in this case.

But the government has responded in here, partly by (inappropriately, in my opinion) mocking the illogic of Pezzola’s challenge, before going on to explain how the testimony of Armes, at least, totally rebuts Pezzola’s claims.

The government strongly disagrees with Pezzola’s characterization of both the facts and the record with respect to these assertions. The government robustly agrees with defendant Pezzola that it would have been egregiously improper for a member of the U.S. Intelligence Community to have conducted a domestic intelligence operation targeting Enrique Tarrio, a U.S. Person, and providing him with a plan to “storm” (or “occupy” or “sit in”) House and Senate Office Buildings on January 6. It would have been even more improper for a member of the U.S. Intelligence Community to send this plan to the leader of the Proud Boys when, just months before, then-President Trump had exhorted the Proud Boys to “stand back and stand by” during a nationally televised debate. And it would have been egregious indeed for a member of the U.S. Intelligence Community to send such a document to the leader of the Proud Boys in advance of January 6, in the wake of the violent attacks the Proud Boys were associated with in Washington, D.C., on November 14, and December 12, 2020. Surely, had the government planted such a document in the inbox of defendant Tarrio (ECF 660 at 5), one would hope that the U.S. Intelligence Community would have hewed to the truth of what happened on January 6 and included the Capitol as one of the targeted buildings.

The filing notes that, contrary to the claimed late notice with the release of the transcripts, the Proud Boys already received October 7 grand jury testimony from Armes that tracks his J6C testimony, a transcript from Flores’s May grand jury testimony showing her invoking the Fifth repeatedly, and a third witness describing receiving the document from Flores on a date that would be before she sent it to Tarrio on December 30.

The information that Samuel Armes drafted a document that inspired portions of the Government Exhibit 528-1 was disclosed to defense counsel by the government on November 16, 2022, when it provided counsel with a copy of Armes’ October 7, 2022, grand jury testimony.

[snip]

Armes testified that he shared his “wargaming” exercise in the form of a three- to five-page Google document with “Erika Flores” sometime between August 2020 and January 2021. 7/18/2022 HSC Tr. at 12; 10/6/2022 Grand Jury Tr. at 26. When asked why Flores told the House Select Committee that Armes had drafted the document, he testified “I guess she is just blame shifting.” 7/18/2022 HSC Tr. at 20. Armes surmised that Flores had taken his “ideas as an inspiration, and her or some group of people then turned it into ‘1776 Returns.’” Id. Indeed, when subpoenaed to testify before the Grand Jury in this case on May 3, 2022, Flores answered only brief biographical questions and then invoked her fifth amendment right not to testify repeatedly in response to more than 50 transcript pages worth of questions by the government about the “1776 Returns” document. That transcript was provided to defense counsel on November 16, 2022.1

1 On that same day, counsel were provided with the grand jury transcript of another witness who testified that a girlfriend of Enrique Tarrio known as “Erika” had messaged a document to the witness about two weeks before January 6 and asked the witness to fill in the names of people to participate in an “infiltration plan.” The witness further recalled that the individuals were to dress like they belonged in the buildings and to have set up prior meetings to gain access. Compare Government Ex. 528-1 at pages 3, 6.

The third witness may be Jeremy Liggett, whom J6C investigators suggested had some tie to the document as well.

There are just three problems with this.

First, as Politico reported today, Flores didn’t invoke the Fifth to the J6C.

Two investigators familiar with her interview — an informal, untranscribed appearance in early 2022 — say that while she was a reluctant witness and initially planned to plead the Fifth, she ultimately agreed to answer some questions about the document.

“Instead of pleading the Fifth, we did an interview with her,” one of the investigators said, speaking on condition of anonymity to describe information the committee had not publicly released. “She gave us the name of Samuel Armes as the name of the individual who wrote the document.”

[snip]

The select committee investigators said they found Armes to be more forthcoming than Flores, who they said exhibited a “general apprehension.” Flores didn’t respond to messages and emails seeking comment.

“She acted like she didn’t know what it was at all,” said one of the investigators.

The two investigators said Flores indicated she had shared the document with Tarrio to impress him during a sensitive phase in their relationship and disclaimed specific knowledge about its contents.

The Stone-related witnesses very carefully manipulated the J6C, and Flores’ decision to testify may be an example. At the very least, Pezzola may have basis to demand that Kelly immunize Flores.

Another problem is that Jocelyn Ballantine is formally on the government response. I’ve noted before how insanely stupid it is for DOJ to have her in an increasingly senior role in the January 6 committee, and discovery disputes like this are precisely why.

The third problem with all this is that DOJ should be able to get Google metadata associated with the document to provide more clarity about the document. Perhaps a later witness will explain efforts to do so (thus far, it has just been introduced as an attachment to a Telegram text). But there are outstanding questions that may have answers.

In any case, this is now the second time that J6C’s refusal to turn over transcripts has endangered this prosecution.

Litigating “‘Normies’ Smash[ing] Some Pigs to Dust” in the Proud Boy Leader Conspiracy

Ten months ago, I wrote a post describing how the Proud Boys were a key part of the overall assault on the Capitol, because they took “normies” and made sure they were deployed to maximal advantage, including having them do the dangerous job of “smash[ing] some pigs to dust.”

The plan required six types of participants to make it work:

  • People (Trump, Rudy, and Mo Brooks) to rile up large numbers of normies
  • Someone (Alex Jones) to guide the normies to the Capitol, probably while communicating with the Proud Boys as they kicked off the riot
  • People at the Capitol (Proud Boys and associates) to tactically deploy the normies as a weapon, both to occupy the Capitol and to create a very real risk to the members of Congress
  • Members of Congress (Paul Gosar and others) willing to create conflict that could be exploited in any of a number of ways
  • Masses and masses of people who, starting even before the election, had been led to believe false claims that their country was under threat; those masses did two things:
    • Enter the Capitol, with a varied level of vocal enthusiasm for the mayhem occurring, and make it far more difficult for cops to put down the assault
    • “Smash some pigs to dust”

Whether or not that conception is true — and just as importantly, whether DOJ can introduce the evidence to prove it at trial — has been the subject of recent pretrial litigation in the Proud Boy Leader case that may determine the outcome of the trial:

As I’ve been saying for 14 months, whether this approach succeeds at the Proud Boy trial will determine the degree to which higher ranking people who were conspiring with Joe Biggs and Enrique Tarrio can be implicated in a conspiracy with those who attacked the Capitol, as opposed to an incitement or aid and abet theory of criminal exposure. And whether it succeeds is neither an easy legal question nor, for a jury assessing guilt beyond a reasonable doubt, evidentiary one.

The opening filing in this dispute argues that even if the subordinate Proud Boys and affiliates who marched on the Capitol didn’t know all the plans and objectives of the conspiracy, they were still part of it. As DOJ describes, the Proud Boy leaders, including John Stewart (Person 3), who secretly entered into a plea deal, probably in June, intentionally aimed to get lower ranking Proud Boys to obey unthinkingly.

It is important to note that it does not matter whether all these members of the conspiracy understood and “agreed on the details” of the scheme, so long as they agreed on the “essential nature of the plan.” United States v. Gatling, 96 F.3d 1511, 1518 (D.C. Cir. 1996); cf. ECF 71 at 46 (Court’s ruling on Nordean and Biggs detention, explaining that “even if someone who was a part of the conspiracy expressed surprise at the way events unfolded that day or what the ultimate outcome was . . . that does not necessarily mean there wasn’t a conspiracy of the kind alleged.”). And in fact, the evidence will show that the conspiracy’s leaders purposefully kept subordinates in the dark about the precise details, urging them to “turn off [their] brains” and “follow the . . . guys you’re with.” ECF 475 at 15 (Statements Motion, quoting statement from Person 3 to MOSD members). In assembling their group of foot soldiers, the leader defendants sought loyal followers, not co-equal partners. Cf. United States v. Mahdi, 598 F.3d 883, 891 (D.C. Cir. 2010) (finding that evidence of defendant exercising “organization control” to keep “the worker bees in line” was intrinsic evidence of conspiracy). Willing followers all, the fact that each may not have been fully privy to the entire plan in no way negates their being co-conspirators.1 Co-conspirators need not share all of the charged criminal objectives of the conspiracy, so long as they formed some agreement with the defendants. Hypothetically, if a particular member of the marching group lacked sufficient understanding of what was happening in Congress to make him part of a conspiracy to corruptly obstruct an official proceeding in violation of 18 U.S.C. § 1512, he could still be part of a conspiracy to use force to oppose the lawful transfer of Presidential power in violation of 18 U.S.C. § 2384 or a conspiracy to forcibly prevent law enforcement officers from discharging their duties in violation of 18 U.S.C. § 372. His conduct is relevant regardless. [my emphasis]

Based on that logic, the filing argues that the tactically important violence of a number of Proud Boys (plus Robert Geiswein, who is being prosecuted by Proud Boy prosecutor Erik Kenerson) was part of the conspiracy.

  • Daniel Lyons Scott, aka “Milkshake,” a Proud Boy, led a crowd in shoving a line of officers to force their way up a set of steps leading to the Capitol.3
  • Alan Fischer and Zachary Johnson, both Proud Boys, were part of a crowd trying to force its way through a line of officers defending an entrance to the Capitol building known as the “tunnel” on the Lower West Terrace. Johnson passed weapons up to rioters on the front line of the crowd, including a sledgehammer and a can of chemical spray.4
  • Edward George, a Proud Boy, engaged in a shoving match with an officer while trying to force his way into the Capitol through the Senate Carriage Door.5
  • Steven Miles, a Proud Boy, shoved and threw punches at officers in an altercation at the west front of the Capitol, and used a plank of wood resembling a two-byfour to break a window to make entry into the Capitol building.6
  • Christopher Worrell, a Proud Boy, sprayed a chemical irritant while in the restricted area of the Capitol grounds.7
  • Robert Gieswein, who is not a Proud Boy but who joined the marching group and wore orange masking tape as insignia showing affiliation with the marching group, sprayed officers with chemical irritant at multiple times and places inside the Capitol.8

Note, I believe all of these defendants are still awaiting trial (though Milkshake was for a time plea-curious), and thus far, only Milkshake and Worrell have been charged with conspiracy, with each other. All the rest, and their co-defendants, could well be superseded with conspiracy charges if this structure succeeds at trial.

Also of note, this government argument preceded (and to some degree explains) the leak about Proud Boy informants who had no knowledge of a plan to attack the Capitol. The defendants want to argue that if Proud Boys didn’t know of the plan to attack the Capitol, there must have been no conspiracy to do so. DOJ argues that, particularly given the hierarchy and the planned close hold on the plan imposed in advance, it doesn’t matter if they knew the overall plan and in fact the ignorance of lower level Proud Boys was actually part of the plan.

But the government is not relying just on the actions of Proud Boys and affiliates. It argues that the Proud Boys “harnessed” others who were at the attack.

Evidence of the conspiracy is not bound by the actions of the co-conspirators. As the evidence will show, on January 6, the defendants sought to harness the actions of others to achieve their objective of forcibly opposing the lawful transfer of Presidential power. In so doing, the defendants used these individuals as “tools.”

That the government is arguing this is unsurprising. As I’ve noted repeatedly, senior Proud Boys discussed doing this explicitly the morning of the attack.

UCC-1: I want to see thousands of normies burn that city to ash today

Person-2: Would be epic

UCC-1: The state is the enemy of the people

Person-2: We are the people

UCC-1: Fuck yea

Person-3: God let it happen . . . I will settle with seeing them smash some pigs to dust

Person-2: Fuck these commie traitors

Person-3 It’s going to happen. These normiecons have no adrenaline control . . . They are like a pack of wild dogs

But the two sentence paragraph, above, is all that the opening motion describes with respect to “harnessing” “normies.”

Nordean’s short response on this point notes that the government had not yet proven the bulleted list of defendants were co-conspirators, much less provided any precedent to introduce the actions of people not alleged to be co-conspirators as evidence of the conspiracy.

Even more inappropriate is the government’s attempt to show the jury countless actions by nondefendants on January 6 who the government concedes are not “co-conspirators” even under its relaxed standards. Gov’t Mot., pp. 6-7. Although the government has no evidence that these protesters joined the charged conspiracies, it says their actions are somehow admissible because they are “tools” of the conspiracy. The government cites no rule or case law holding that the criminal actions of nondefendant “tools” of a conspiracy—conceded nonmembers—can be admitted against defendants in their criminal case. There is none. The government’s novel “tools” concept has no discernable limiting principle.

This argument accompanies Nordean (and Zach Rehl’s) First Amendment argument that the poor Proud Boys were simply engaged in a non-violent protest outside the Capitol when a bunch of unaffiliated people showed up and violently attacked the Capitol.

After which the Proud Boys took credit for what those purportedly unaffiliated people had done.

(Nordean’s filing also anticipated the extended sealed argument about a bunch of informant materials that he would later claim to be surprised by.)

In reply, the government uses analogies for other types of crime. This interlocking conspiracy, DOJ argues, is like a complex drug scheme where someone might be involved in delivering the drugs but not the money laundering.

An analogy illustrates the fallacy of Nordean’s argument. Imagine a defendant charged with one count of conspiring to possess cocaine with the intent to distribute and one count of laundering the proceeds of that drug trafficking. Imagine that an uncharged co-conspirator transported narcotics on the defendant’s behalf but had no involvement in, or knowledge about, the laundering of the money. On Nordean’s reasoning, the co-conspirator’s conduct would be excluded at trial because it was only related to “a conspiracy” to traffic drugs and not “the conspiracy” to commit both object offenses. ECF 505 at 2 (emphasis Nordean’s). See Joint Proposed Jury Instructions (submitted to the Court on 11/2/2022), at 18 (“To have guilty knowledge, the defendant need not know the full extent of the conspiracy or all of the activities of all of its participants. It is not necessary for the defendant to know every other member of the conspiracy.”).

Before DOJ describes how the “normies” “harnessed” in the attack are like “money mules” in a financial transaction, it cites the discussion in advance of inciting the “normies” or leading them as the tip of a spear.

Contrary to Nordean’s telling, though, there is nothing novel about the principle that the actions of third parties can advance a conspiracy even if those parties are not full members of the conspiracy. The notion that the conspiracy could operationalize other individuals as a force multiplier is not an invention of the government; to the contrary, the conspirators expressly discussed it. See, e.g., ECF 440-1 at 20 (Transcript of MOSD meeting where Bertino explains: “[T]hey’re gonna follow us now because, you know, we’re the tip of the spear.”); ECF 111-1 at 4 (discussion on morning of January 6 about hopes that “normies burn that city to ash today” and “smash some pigs to dust,” which was “going to happen” because normies “have no adrenaline control . . . They are like a pack of wild dogs.”).

Indeed, for example, it is common for financial schemes to involve the use of “money mules” who knowingly conduct transactions at the perpetrators’ direction while remaining unwitting to the essential nature of the arrangement. See, e.g., United States v. Thomas, 999 F.3d 723, 727-28 (D.C. Cir. 2021). The conduct of those “money mules” is relevant evidence of the financial scheming defendant’s criminal intent and unlawful conduct. This case is factually different, but the basic theory is the same. The limiting principle is whether, on the evidence at trial, a jury could reasonably find a factual nexus between the actions of the conspirators and the actions of the tools. See Fed. R. Evid. 104(b) (“When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist.”). [my emphasis]

There was a hearing on all this on November 18 at which the government introduced a new angle to its argument about “harnessing” the “normies” (it was live so there was no call-in). Joe Biggs (whose lawyers are representing few other January 6 defendants, and so many not appreciate how many January 6 defendants — whether trespassers or assailants — claim they just got “caught up,” including a bunch who cited the Proud Boys as inspiration) describes the argument this way:

The Government asserted at argument that what guns were to the Oath Keepers on January 6, non-party protestors were to the Proud Boys. It further attempted to explain what it meant by this clumsy analogy when it asserted that the Proud Boys “weaponized” third parties.

[snip]

Perhaps mindful of the difficulties its arguments presented, the Government asserted that the defendants had “weaponized” third parties, either fellow members of the Proud Boys, members of other groups, or so-called “normies” unaffilated with any group, to engage in acts of violence. The Government did not argue just how percipient agents were transformed into little more than zombies, or tools, at the disposal of the defendants.

[snip]

The analogy to “mules” in narcotics cases in unavailing. In the case of passive mules, that is a party unknowingly carrying a prohibited item from one location to another, the mule lacks knowledge and intent to commit a crime. They are used as a transportation device. They are agents acting on purposes all their own but used by others to accomplish unlawful aims The Government is unclear whether it seriously intends to argue that protestors on January 6, 2021, were used without their knowledge, forced, somehow, to carry on as foreign objects the ideas of another. One suspects the Government cannot mean this, otherwise why would they prosecute the nearly 1,000 individuals charged with crimes requiring intent?

Nordean, whose lawyers do represent a slew of other defendants (though usually those who had more culpability themselves), responds this way.

[T]he government proposes to show the jury the criminal actions of individuals on January 6 who are (a) nondefendants, (b) not members of the charged conspiracies, (c) not members of the Proud Boys, and (d) not linked to the Defendants through a recognized principle of liability such as conspiracy, aiding and abetting, solicitation, or “willfully causing an act to be done.” ECF No. 494, pp. 3-7. The government describes the relevance of such evidence as follows: “the ‘tools’ of the conspiracy [were] deployed by the defendants in furtherance of their criminal objectives.” Id., p. 3 (emphasis added). “These ‘tools’ served as instruments of the defendants to carry out their criminal objective. While unwitting to the criminal objective, they were employed to take action on behalf of and in furtherance of the criminal objective.” Id. (emphasis added). According to the government, this group includes all “normies” whom the Defendants “sought to ‘let [] loose’ on January 6.” Id. Although the government does not say it in plain English, its “tools” argument aims to show the jury any and all criminal acts by any actor on January 6 on the contradictory relevance theory that these Defendants caused all of those acts and yet, at the same time, are not “criminally liable” for any of them. ECF No. 494, p. 7.

In the November 18 hearing, the Court indicated that the “tools” evidence might satisfy the test of relevance even if the government could not establish that the Defendants are legally responsible for the “tools’” actions under a recognized theory of liability.2 The Court suggested that relevance may lie in the following argument: the government alleges that the Defendants conspired to use “normies” to further their conspiratorial aims and thus the “jury should be permitted to see” what Defendants “achieved by mobilizing the crowd.” ECF No. 494, p. 4.

However, embedded in the government’s argument is a factual premise failing which the test of relevance cannot be satisfied. Whether acts of violence on January 6 by “normies” were caused or “mobilized” by the Defendants is a fact question. If those acts were not caused by the Defendants’ “mobilization,” they are not relevant under the government’s novel argument. A counterfactual shows this to be the case. Suppose Normies 1-4 rushed past barriers, ran into the Capitol, and assaulted police officers. They have never heard of the Proud Boys, nor did they see or hear the Defendants on January 6. Displaying their actions to the jury cannot demonstrate the “manner and means of the defendants’ conspiracy,” ECF No. 494, p. 3, as there is no causal relationship to speak of.

In response, the government will try to contend that even absent any causal relationship between the Defendants’ actions and those of “normies,” the latter are relevant inasmuch as the Defendants allegedly dreamed of being or aspired to be an instigator of the normies on January 6. But while Defendants’ alleged pre-January 6 comments about riling up the normies may in that case still hold relevance as to the nature/scope of the alleged criminal agreement, the actions of the normies themselves would not be relevant. Absent any causal relationship between the Defendants’ actions and the normies’ criminal acts, the latter can logically show neither that the conspiracy “succeeded” nor that the Defendants’ alleged agreement somehow “planned” the normies’ actions even where unilaterally undertaken without knowledge of Defendants’ desires.

[snip]

Here, the government has adduced no evidence to show that the actions of the “normies” or other nondefendants were caused by the Defendants’ actions. ECF No. 494, pp. 3-7. None exists. The government has not adduced the statement of any “normie” or other nondefendant to the effect that their acts were “caused” by the Defendants. [my emphasis]

The bolded language may be the only place in the papers where the Proud Boy defendants address the repeated explicit reference in their Telegram threads to riling up “the normies.” But Nordean gets at a critical issue: The government has proof that the Proud Boys intended to “harness” the “normies.” He’s arguing they don’t have proof, perhaps in the form of witness testimony, that hundreds of other January 6 defendants did what they did because of actions of the Proud Boys. (If pressed, the government could come up with at least a dozen witnesses who did talk about following the Proud Boys, but I trust from Nordean’s claim that they haven’t committed to doing so, and one subtext of this fight is the aborted effort by DOJ to get Ryan Samsel to enter a cooperation agreement in which he would testify about what Biggs told him before Samsel set off the entire attack.)

The government, partly because Nordean is also challenging the reliance on earlier evidence and events at the two earlier MAGA Marches, describes first how the Proud Boy Leaders cultivated a certain kind of recruit leading up to the attack, using comms to show senior Proud Boy leaders picked members who had embraced violence to be part of MOSD and anticipated needing a lot of bail money.

The escalation of both violence and violent rhetoric among the Proud Boys from November through January is not only highly probative to the charged conspiracy, it cannot be separated therefrom. After the Ministry of Self Defense was approved as a chapter, the defendants in leadership set about hand-selecting other individuals to join the group. In deciding who to admit, the defendants drew on their knowledge and experience with them at prior rallies. The fact that some of the recruits came into the chat and nearly immediately made references to violence, without rebuke by Nordean or any other leader, is additional evidence both (1) why they were chosen for MOSD, and (2) what they had come to understand about MOSD’s purpose based on  their prior communications with the defendants and other leaders of the conspiracy.4 See Ex. 3 (proposed trial exhibits comprising messages from MOSD recruits upon joining group, expressing (1) willingness to “log into Minecraft”; (2) shared experience of previous “seek and destroy” mission in DC “where we had a target which was Black Lives Matter plaza”; (3) expectation that members were going to need “a lot of bail money”; (4) understanding that “protest time” means “punch ‘em in the face”; and (5) appreciation that “to be in this group, you need to . . . be able to fucking kick ass if you need to kick the fuck ass.”).

It responds to the complaints about the government’s theory of “riling the normies” by pointing to specific moments when the Proud Boys opened the way through which hordes would swarm.

To be clear, the government does not plan to argue that every member of the crowd on January 6 was a tool of the defendants’ conspiracy. The tools will consist primarily of those Proud Boys members and affiliates whom the defendants recruited and led to the Capitol as part of their marching group. As the government explained, many of these individuals would also qualify as co-conspirators who shared a criminal objective with the defendants (even if, as far as the followers understood, that objective was only to commit assault). See 11/18/22 Tr. at 66 (“[W]e would argue, first, that these people are co-conspirators.”); 119 (“[P]art of what the tools theory does is says, even if these people were just signed up to commit violence without knowing why or against whom it would be directed, that’s still relevant.”). In some other instances, of course, the tools will be apparent strangers whose conduct nonetheless has a causal relationship with the defendants. For example, video evidence at trial will show that numerous rioters surged toward the Capitol as a result of Nordean, Biggs, and others destroying a black metal fence that was obstructing the crowds’ progress. Video will likewise show that many rioters entered the Capitol through a window that Pezzola smashed. All these facts lend credence to Tarrio’s own evaluation of the causal relationship at work: “Make no mistake, we did this.”

Stated thusly, it is a more modest argument than the government could have made and may one day make. There’s no reference to Alex Jones delivering the mob created by Donald Trump to his allies (and former employee, in the case of Biggs) in the Proud Boys, for example. Instead, the government seems to be looking barrier by barrier to show that the Proud Boys created the breach through which thousands ran.

I’ve been expecting an argument like this for months. But I admit it’s a close legal call.

I keep thinking about two things as I read this: First, a chilling line in cooperating witness Matthew Greene’s statement of offense, where he likened the moment on January 6 when things turned from peaceful to violent to his time in Afghanistan.

Greene noticed that during and following the chanting, the mood in the crowd changed, and it reminded him of his time in Afghanistan while stationed there with the U.S. Army, when protests changed from peaceful to violent.

While I don’t know the military experiences of Joe Biggs or other Proud Boy veterans, what Greene was describing was the Proud Boys deliberately stoking an insurgency the likes of which many of the men present (both Proud Boys and others) had fought in Iraq and Afghanistan. Some of these guys know how to incite an insurgency because they fought them for so long overseas.

The other thing that’s not clear is who DOJ will have as witnesses. I don’t think Pezzola’s lawyers have submitted an active filing for weeks or months, a possible sign Pezzola is close to or has already flipped; given that he literally breached the Capitol, making way for everyone else, if he were a cooperating witness at trial it would be far easier to make this argument. And while the very first filing in this series described Aaron Whallon-Wolkind (Person 2) as part of the core conspiracy…

Specifically, the jury will be called upon to evaluate whether the defendants and their co-conspirators – including Enrique Tarrio, Joseph Biggs, Ethan Nordean, Zachary Rehl, Charles Donohoe, Jeremy Bertino, Persons 2 and 3, and Dominic Pezzola – entered into an agreement to accomplish an unlawful objective. The defendant’s own words, and those of their co-conspirators, reveal (1) their motive to stop the lawful transfer of power; (2) their agreement to use force to do so, including against law enforcement and elected officials; (3) their efforts to recruit individuals to carry out the criminal objective of the conspiracy; 1 and (4) their efforts to encourage other individuals present on January 6 to use force to achieve their objective.

… unlike Bertino (who formally pled guilty the day before this filing) and John “Blackbeard” Stewart (Person 3), who pled guilty in June, it’s unclear what AWW’s status is. That’s important because he was part of the plan to, “see thousands of normies burn that city to ash” on January 6.

The status of Ron Loehrke, another former Marine who played a key role in directing the attention of the rioters, is also unclear. A year ago, he was arrested on civil disorder and trespassing charges — but not obstruction or conspiracy — with co-defendant Jimmy Haffner (Haffner was also charged with a tactically important assault, at the East Door), but AUSA Kenerson has gotten three pre-indictment continuances of their case, through January 10, probably right in the middle of the Proud Boy Leader trial.

In other words, DOJ’s arguments about the way the Proud Boys deployed “normies” to carry out the bulk of the attack on the Capitol make a ton of sense given the evidence from the attack. This approach also helps to explain a lot of the oddities and apparent delays about the larger Proud Boy prosecution.

What’s unclear is whether DOJ will succeed in introducing it as evidence at trial.

Spy Versus Spy Amid the Proud Boys, Again

In the plea hearing for Nicholas Ochs and DeCarlo, Chief Judge Beryl Howell asked prosecutor Alexis Loeb whether the defendants had sat for the interview required by the standard plea deals. Loeb explained that, Ochs had but, for reasons pertaining to the ongoing investigation, FBI did not do such an interview with DeCarlo. I wondered, then, whether DOJ wanted to avoid discovery obligations to other Proud Boy defendants.

It’s something I had in mind as I read the various filings (Zach Rehl, Ethan Nordean, Enrique Tarrio, Joe Biggs, Nordean reply) that — NYT reported the other day — pertain to discovery about informants that the FBI had or developed among the Proud Boys. The gist of the complaints (as noted in the Biggs filing), which treat this as a Brady violation that merits dismissing the case, is that the FBI had records relating to Proud Boys who said they did not know of a plan to attack the Capitol in advance.

Biggs notes here on the open record that the Brady violations the parties continue to dispute — beginning with the dispute triggered by the Government’s late disclosure of a significant cache of Brady materials on August 13, 2021, or fifteen months ago — consistently go to a structural feature in all three of the Department of Justice’s superseding indictments in 21-cr-175. That feature and overarching issue is whether a Proud Boy conspiracy plan to obstruct the Biden-Harris vote certification or to commit sedition ever existed or could have existed. The Brady materials and discussions most at play now and since mid-2021 point up the increasing doubtfulness and high unlikelihood of the existence of a conspiracy. That is troublesome, and glaring. It continues to be the ‘elephant in the room’ of 21-cr-175.

It’s hard to know how seriously to take this. Some of these defense attorneys have been crying wolf from the start, claiming something turned over in timely fashion is exculpatory when it in fact shows really damning information.

In the August instance cited by Biggs, which NYT also wrote about, the informant was low-level and claimed to have shown up to insurrection late. Except Statements of Offense from members of the Kansas City suggest that the informant falsely told the FBI that violence had not come up in a meeting the night before the attack.

In the evening on January 5, 2021, defendant attended a meeting with co-defendants William Chrestman, Kuehne, and Ashlock, and others during which group safety was discussed. At some point during the meeting, another individual said that he did not come to Washington, D.C., to just march around and asked, “do we have patriots here willing to take it by force?” Defendant was shocked by this and understood that the individual was referring to using force against the government. Co-defendant Kuehne responded to the question by saying that he had his guns with him and, in essence, that he was ready to go. The individual who posed the question said that they should “go in there and take over.” [my emphasis]

That said, the statements of offense making such claims — here from Enrique Colon — come from defendants receiving really sweet plea deals in hte process, in multiple cases avoiding weapons charges or enhancements as well.

In the case of the two Nicks, they definitely coordinated with each other and premeditated a plan to stop the vote certification. But they appear not to have been part of any larger plan (they even attended Trump’s rally, which most Proud Boys did not). In other words, one thing that may be going on is that Biggs and Nordean implemented a plan developed along with Tarrio and some senior Proud Boys who weren’t in DC (such as the cooperating Jeremy Bertino), but didn’t tell the greater number of Proud Boys what that plan is in advance, something that makes the testimony of others appear exculpatory only because the Proud Boy leaders had kept a close hold on their plans.

According to Nordean’s reply to DOJ’s entirely sealed 21-page response, the government believes it was justified in withholding the documents under Rule 16(a)(2), which only requires sharing the documents if the pertinent witnesses testify.

The government argues that the sensitive materials were exempt from its discovery obligations under Rule 16(a)(2). ECF No. 538, p. 11. That is false because (1) the records at issue were not made by a government agent or attorney for the government in connection with investigating or prosecuting “the case,” i.e., United States v. Nordean, 21-cr-175, and (2) it is not just “internal government documents” Nordean seeks but the underlying information merely reproduced in government documents.

Nordean seems to be playing games about the bounds of “this” investigation here, and if the documents genuinely are not exculpatory, that would probably be a reasonable response. It’s a matter of whether this is an investigation into just the Proud Boy leaders, all the Proud Boys, or everyone involved in attacking the Capitol.

Separately, these are the files that (in a recent hearing), the defense attorneys were complaining about the heightened security procedures to access the documents, as Nordean lays out in his original filing.

[T]he government has made the extraordinary argument that these exculpatory materials cannot be produced directly to defense counsel. It has argued, successfully, that counsel must comply with the following procedure in order to access Brady information in this case:

(1) counsel must travel to an FBI office to review the materials in person;

(2) counsel may not receive copies of the materials but must take handwritten notes;

(3) counsel must then move the Court to produce the materials to the defendants, based on summary descriptions of the materials in their handwritten notes; and

(4) counsel must then file additional motions to secure this evidence for trial.

The complaint would be more convincing if the details of the earlier informant had not been published by the NYT, making it easy for investigators (and presumably all the other Proud Boys) to identify the informant. In the Oath Keeper case, too, the government is trying to hunt down which attorney(s), if any, sourced a NYT story about an Oath Keeper informant. (h/t Kyle Cheney)

Meanwhile, all this question about who is informing on whom leads me to return to the question of what happened to

Whallon Wolkind in all this (he’s the one top Proud Boy leader not known to have been charged or flipped), not to mention why Dominic Pezzola, alone among the remaining defendants in this case, didn’t join the challenge to access the informant files.

The usual suspects are wailing about how long this investigation is taking. Meanwhile, cases like this reveal the complexity of trying to prosecute key defendants while processing through a thousand others.

Forty Feet: Trump Sicced a Murder Weapon on Mike Pence

Harry Litman observed after yesterday’s January 6 Committee hearing that you might be able to charge Trump with the attempted murder of Mike Pence.

This was not new news yesterday though.

I reported on the DOJ and the Committee’s mutual focus on the targeting of Pence on January 5. In a piece that described that Marc Short had not yet agreed to cooperate and Pence might never cooperate, NYT reported on the same focus of DOJ filings days later. Though, as sometimes happens, NYT got the timeline wrong; Gina Bisignano swore to her focus on Pence in August (and has not reneged on that point even as she attempts to withdraw her guilty plea), and Josiah Colt described how he and two co-conspirators responded to news that Pence would not stop the vote count by breaching the Senate in July 2021, almost a year ago.

DOJ has been focused on the effect of Trump’s targeting of Pence for over a year. In fact, to substantiate the seriousness of the threat facing Pence that day, the Committee cited witness testimony that has been public since January 13, 2021, in Proud Boy Dominic Pezzola’s original arrest affidavit.

W-1 further stated that members of this group, which included “Spaz,” said that they would have killed [Vice President] Mike Pence if given the chance. According to W-1, the group said it would be returning on the “20th,” which your affiant takes to mean the Presidential Inauguration scheduled for January 20, 2021, and that they plan to kill every single “m-fer” they can.

The allegation actually doesn’t show up in the Proud Boy sedition indictment, though Proud Boy Matthew Greene’s plea allocution talked about how the militia swarmed the Capitol with the intent of adding pressure to Pence.

To be sure, yesterday’s hearing laid out the following additional pieces of proof that Trump was specifically targeting Pence:

  • Jason Miller and Greg Jacob’s description of Trump’s deliberate misrepresentation, overnight on January 5, falsely claiming Pence agreed with him about the vote count
  • Descriptions about Trump calling Pence on around 11 on January 6 and calling him a whimp and a pussy, a call that distressed Ivanka because, “It was a different tone than I’ve heard him take with the Vice President before”
  • Trump’s addition references to Mike Pence in his January 6 speech, both in the prepared script and ad-libbed along the way
  • Details from White House aides confirming that Mark Meadows had informed Trump about the violence at the Capitol and how, instead of a tweet calling for calm, Trump instead “pour[ed] gasoline on the fire” (as Former White House Deputy Press Secretary Sarah Matthews described it) by calling out Pence again in a tweet at 2:24 the day of the insurrection
  • Greg Jacob’s testimony about tensions with the Secret Service about evacuating the Capitol
  • Marc Short’s description of conversations with Kevin McCarthy expressing frustration that Trump wasn’t taking the circumstances seriously
  • Reconfirmation that Trump never called Pence to check on the Vice President’s safety
  • Tracking of Jacob’s “Thanks to your bullshit we are now under siege,” to events at the Capitol

Committee member Congressperson Pete Aguilar explained that at the moment Pence was evacuated from his ceremonial office, he and the mob were just forty feet apart.

The Committee looked at the threat posed by the Proud Boys to Pence.

It doesn’t look at something far more substantive, though potentially far more complex. Immediately after Trump’s tweet, the Oath Keepers indictment describes communications between Roger Stone associate Kelly Meggs and Stewart Rhodes, followed by a conference call involving those two and operational lead Mike Simmons. The Oath Keepers converged, and then the first Stack and the second (made up of men who had been providing security to Roger Stone that morning) breached the East doors, along with Joe Biggs and the mob brought by Alex Jones.

Once inside, the first Stack broke up, with Meggs and others heading towards Speaker Pelosi’s office to hunt her down.

103. Shortly thereafter, WATKINS and other members ofStack One exited the Rotunda through the northbound hallway toward the Senate Chamber.

104. Around this time, a member of Stack One yelled “the fight’ s not over” and waved !rioters down the hallways toward the Senate Chamber.

105. At 2:45 p.m. and afterward, WATKINS and other Stack One members joined the imob in pushing against a line of law enforcement officers guarding the hallway connecting the Rotunda to the Senate Chamber, as WATKINS commanded those around her to “push, push, !push,” and to, “get in there, get in there,” while exclaiming, “they can’t hold us.” When officers responded by deploying a chemical spray, the mob-including WATKINS and other Stack One members-retreated.

106. At 2:45 p.m., MEGGS, HARRELSON, HACKETT, MOERSCHEL, and other Stack One members walked southbound out of the Rotunda and toward the House of Representatives in search of Speaker Pelosi. They did not find Speaker Pelosi.

The others attempted to get to the Senate, whence Mike Pence had, minutes earlier, been evacuated.

As I’ve noted, with the sedition indictments, DOJ also added 18 USC 372 charges, conspiracy “to prevent, by force, intimidation, or threat, any person … from discharging any duties thereof.”

DOJ may never show that Trump and the mob he sicced on his Vice President conspired to kill him, or even that Trump’s 2:24PM tweet aided and abetted the attempts to find and assassinate Pence — though the judge presiding over the Oath Keepers case has deemed the possibility Trump could be held accountable for aiding and abetting to be plausible, at least for a lower civil standard. But there’s little doubt that Trump, his lawyers, two militias, and the mob entered into a common effort to prevent Pence from doing his duty that day. And with the militias, you can draw a line between Trump, his rat-fucker, Alex Jones, and the men at the Capitol to the threat and intimidation Trump sicced on his Vice President.

Why January 6 Committee Transcripts Are Urgent: Proud Boy Jeremy Bertino

On June 6, DOJ charged the Proud Boy Leaders with sedition. As I noted at the time, the single solitary new overt act described in the indictment involved Jeremy Bertino, Person-1, seeming to have advance knowledge of a plan to occupy the Capitol.

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

Just days earlier, as part of a discovery dispute, prosecutors had provided this (dated) discovery index. For several reasons, it’s likely that at least some these entries pertain to Bertino, because the CE ones are from the Charlotte office, close to where he lives, because he’s one of the three uncharged co-conspirators of central importance to the Proud Boys efforts, and because we know FBI did searches on him.

In a hearing during the day on June 9, the Proud Boys’ attorneys accused DOJ of improperly coordinating with the January 6 Committee and improperly mixing politics and criminal justice by charging sedition just before the hearings start. In the hearing there was an extensive and repeated discussion of the deposition transcripts from the committee investigation. AUSA Jason McCullough described that there had been significant engagement on depositions, but that the January 6 Committee wouldn’t share them. As far as he knew, the Committee said they would release them in September, which would be in the middle of the trial. Joe Biggs’ attorney insisted that DOJ had the transcripts, and that they had to get them to defendants.

Judge Tim Kelly ordered prosecutors that, if they come into possession of the transcripts, they turn them over within 24 hours.

Hours later, during the first (technically, second) January 6 Committee hearing, the Committee included a clip from Bertino describing how membership in the Proud Boys had tripled in response to Trump’s “Stand Back and Stand By” comment.

His cooperation with the Committee was not public knowledge. I have no idea whether it was a surprise to DOJ, but if it was, it presented the possibility that, in the guise of cooperating, Bertino had just endangered the Proud Boy sedition prosecution (which wouldn’t be the first time that “cooperative” Proud Boys proved, instead, to be fabricators). At the very least, it meant his deposition raised the stakes on his transcript considerably, because DOJ chose not to charge him in that sedition conspiracy.

Today, in response to a bid by Dominic Pezzola and Joe Biggs to continue the trial until December, DOJ acceded if all defendants agree (Ethan Nordean won’t do so unless he is released from jail). With it they included a letter they sent yesterday to the Committee — following up on one they sent in April — talking about the urgency with which they need deposition transcripts.

We note that the Select Committee to Investigate the January 6th Attack on the United States Capitol (“Select Committee”) in its June 9, 2022 and June 13, 2022, hearings extensively quoted from our filings in active litigation and played portions of interviews the Select Committee conducted of individuals who have been charged by the Department in connection with the January 6th Attack on the United States Capitol.

It is now readily apparent that the interviews the Select Committee conducted are not just potentially relevant to our overall criminal investigations, but are likely relevant to specific prosecutions that have already commenced. Given this overlap, it is critical that the Select Committee provide us with copies of the transcripts of all its witness interviews. As you are aware, grand jury investigations are not public and thus the Select Committee does not and will not know the identity of all the witnesses who have information relevant to the Department’s ongoing criminal investigations. Moreover, it is critical that the Department be able to evaluate the credibility of witnesses who have provided statements to multiple governmental entities in assessing the strength of any potential criminal prosecutions and to ensure that all relevant evidence is considered during the criminal investigations. We cannot be sure that all relevant evidence has been considered without access to the transcripts that are uniquely within the Select Committee’s possession.

The discovery deadline for the Proud Boy case is tomorrow. If DOJ put Bertino before a grand jury and he said something that conflicts with what he told the Committee, it could doom his reliability as a witness, and with it the Proud Boys case, and with it, potentially, the conspiracy case against Trump.

The fact that Matt Olsen, National Security Division head, is on this letter suggests the concern pertains to the militias (and, indeed, the charged militia witnesses who appeared were Tarrio and Stewart Rhodes). Similarly, Nick Quested’s testimony may be inconsistent with other information DOJ has obtained.

Some pundits who’ve never done any original reporting on the topic claimed upon seeing this letter that it’s proof DOJ has been “twiddling its thumbs” while the Jan6 Committee has been doing all the work.

They’re saying that, though, when DOJ fairly explicitly said that grand juries have interviewed witnesses that Jan6 — and so, by association, lazy pundits — may not be aware of.

These are the kinds of surprises that can kill entire cases, after a year and a half of painstaking investigation.

Back Was Stood, And By Was Stood: The Passive Voice Behind the Top Down Structure of the Charles Donohoe Statement of Offense

As I’ve been expecting for some time, Proud Boy Charles Donohoe pled guilty today — to one count of 18 USC 1512(k) (the obstruction conspiracy statute) and one count of assault.

There are few new details in his statement of offense. The most important ones are that:

  • Enrique Tarrio fast-tracked the membership of Dominic Pezzola, the Proud Boy who would be the first to break through a Capitol window with a stolen riot shield on January 6, into the Proud Boys, thereby putting Tarrio directly on the hook for Pezzola’s action
  • Donohoe originally didn’t intend to attend the riot, but did to fill in a leadership gap once he learned Tarrio would be arrested

Most of the rest of the statement of offense is designed to implicate the entire, strictly-enforced hierarchy of the Proud Boys in several kinds of criminal exposure.

First there’s the plan to use violence to obstruct the vote count — something that was planned before Tarrio was arrested, and so something in which he is clearly implicated.

At least as early as January 4, 2021, and prior to Donohoe’s decision to travel to D.C., Donohoe was aware that members of MOSD leadership were discussing the possibility of storming the Capitol. Donohoe believed that storming the Capitol would achieve the group’s goal of stopping the government from carrying out the transfer of presidential power. Donohoe understood that storming the Capitol would be illegal.

[snip]

Donohoe was not given details of the plan referred to by Biggs, but Donohoe understood from discussions among the MOSD and other Proud Boys that the objective in Washington, D.C., on January 6, 2021, was to obstruct, impede, or interfere with the certification of the Electoral College vote. Donohoe understood from discussions that the group would pursue this through the use of force and violence, in order to show Congress that “we the people” were in charge.

[snip]

Within minutes of arriving, members of the crowd breached the barriers and advanced onto Capitol grounds. Donohoe saw Nordean and Biggs advance onto Capitol grounds and followed them. Donohoe believed these actions were intended to stop the certification of the Electoral College vote.

This implicates everyone in the chain of command in using violence to obstruct the vote certification.

Then there’s the damage to the Capitol that Pezzola did with that riot shield — and all the damage that followed.

Shortly after throwing the water bottles at officers, Donohoe encountered Pezzola. Donohoe recognized Pezzola as a Proud Boys member and confirmed that fact with another Proud Boys member. Donohoe then grabbed the riot shield that Pezzola was holding and led Pezzola to the rear of the West Plaza. After reaching the rear of the concrete area of the West Plaza, Donohoe posted a message to MOSD leaders at 1:37 p.m. that read, “Got a riot shield.” While standing at the rear of the plaza, Donohoe took a picture of Pezzola holding the riot shield and making a hand gesture associated with the Proud Boys.

Donohoe then advanced back toward the Capitol in an effort to locate other Proud Boys members. Upon arriving near the base of a set of concrete stairs, Donohoe recognized a Proud Boys member known as “Milkshake” at the front of the crowd standing opposite a line of officers. Donohoe heard shouting and other discussion among those surrounding him indicating that the crowd was preparing to push toward the Capitol. Donohoe recognized that the concrete stairs offered a path to advance further toward the Capitol. Donohoe and others in the crowd pushed up the stairs. It was reasonably foreseeable to Donohoe that the use of force to advance toward the Capitol would involve property destruction by members of the Proud Boys who had been led to the Capitol by Nordean and Biggs.

[snip]

The attack on the Capitol resulted in substantial damage, requiring the expenditure of more than $1.4 million dollars for repairs.

This is important because 18 USC 1361, willfully doing more than $1,000 of damage to a government building, can carry a terrorism enhancement if done to coerce the government, which (very loosely speaking) can add roughly 10 years to any sentence imposed. Donohoe’s statement of offense says that the foreseeable damage the Proud Boys did with the goal of obstructing the vote certification was $1.4 million.

Finally, there’s the violence that happened, starting with Donohoe’s own water bottles but including Milkshake’s assault on cops and all the other violence that was foreseeable.

Donohoe threw two water bottles at a line of law enforcement officers engaged in the lawful performance of their official duties who were attempting to prevent the mob’s advance in the West Plaza at the Capitol building. It was reasonably foreseeable to Donohoe that members of the Proud Boys who had been led to the Capitol by Nordean and Biggs would engage in assaults on law enforcement.

[snip]

Donohoe intended to use force and did, in fact, use force to obstruct, impede, or interfere with the certification of the Electoral College vote, and did forcibly assault, resist, oppose, impede, intimidate, or interfere with, officers or employees of the United States.

In taking such actions, Donohoe intended to influence or affect the conduct of the United States government. He accomplished this by intimidating and coercing government personnel who were participating in or supporting the Congressional proceeding, including Members of Congress, Congressional staff, and law enforcement officers with the Capitol Police and Metropolitan Police Department.

This language — and Dan Scott’s more serious assault and by association all the assaults that happened that day — is important because the conspiracy tied to obstruction, 18 USC 1512(k), can carry enhancements for things like attempted murder and attempted kidnapping, making the maximum penalty 30 years instead of 20.

(3) The punishment for an offense under this subsection is—
(A) in the case of a killing, the punishment provided in sections 1111 and 1112;
(B) in the case of—
(i) an attempt to murder; or
(ii) the use or attempted use of physical force against any person;
imprisonment for not more than 30 years; and

Since this post is about the passive voice, let me note that murders were attempted on January 6.

As I said, what this statement of offense does is implicate the entire chain of a very hierarchical command in criminal exposure for the intentional use of violence and the foreseeable damage to the Capitol as part of a plan to coerce Congress to halt the vote certification. Everyone from Tarrio on down is implicated in this, and several specifics about Donohoe’s statement of offense will ensure that Tarrio can’t escape responsibility because he was absent and Donohoe filled in.

But it is the foundation of that hierarchy that is so remarkable.

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

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

Close to every other filing in the January 6 case that mentions the announcement of these plans actually cites what was taken as the formal announcement: Trump’s tweet, in response to which hundreds if not thousands of rioters began to make plans to come to DC.

Peter Navarro releases 36-page report alleging election fraud ‘more than sufficient’ to swing victory to Trump https://t.co/D8KrMHnFdK . A great report by Peter. Statistically impossible to have lost the 2020 Election. Big protest in D.C. on January 6th. Be there, will be wild!

The import of that December 19 tweet was clear even in real time; the NYT and WaPo recently returned to the central role it plays in a great number of January 6 cases.

But this statement of offense instead presents what was viewed as an order from Trump in the passive voice: “Plans were announced.” Trump announced those plans, as every other charging document makes clear.

And the next day, in response to that announcement, Tarrio started building that top-down hierarchical structure that would go on to intentionally assault the Capitol and cops.

There are many things this statement of offense does with that masterful use of the passive voice. It implicates, without mentioning, people like Peter Navarro and Ali Alexander, the former because he was mentioned in the tweet and the latter because he was organizing it. The statement of offense makes clear that Tarrio told Donohoe and other Ministry of Self Defense leaders about what their plan was, but doesn’t reveal what he has shared, particularly what he shared about direct planning with people close to Trump. Indeed, the language of the statement of offense leaves open the possibility that Tarrio was moving on this even before the public launch of the riot by Trump.

But most importantly, without naming him, this structure puts Trump at the head of that hierarchy that bears top-down responsibility for the intentional violence and damage in the service of obstructing the vote certification.

This is like announcing a plan to “Stand back and stand by” using the passive voice.

Update: Yesterday, WV Proud Boy head Jeffrey Finley pled guilty in what appears to be one of the misdemeanor pleas tied to advance cooperation. His statement of the offense strongly implicates Zach Rehl, with whom he co-traveled for part of the day.

Enrique Tarrio Gets His Chance to Fit In or Fuck Off

Enrique Tarrio was finally indicted in the Proud Boy conspiracy. Effectively, this indictment adds Tarrio and Dominic Pezzola to the Leader conspiracy. William Pepe is not included, suggesting maybe he flipped.

Among the new lines in the indictment is one describing Tarrio trying to impose discipline.

On December 27, 2020, TARRIO created another encrypted messaging group to recruit potential members of the MOSD (the “MOSD Prospect Group”). TARRIO stressed that members of the chapter were expected to follow directions of MOSD leadership, which TARRIO and others emphasized by telling members, among other things, to “Fit in [] or fuck off.”

The indictment includes a meeting Tarrio had with Stewart Rhodes on January 5, before leaving DC.

It does not include any reference to his meeting at the White House.

One of the most interesting new additions is the description of Tarrio discussing a plan to occupy a few “crucial buildings” in DC with an unnamed person.

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

I’ll write more in a bit.

The Disappearing Willard Hotel and the Accused Seditionists’ Other Interlocutors

Just as sedition bears down on Roger Stone, the government has put a curtain over what they know about his role in it. The government has moved on from Stone, it seems, to other interesting Oath Keeper interlocutors.

Way back in May, I noted how judicious DOJ was being with statements from Stewart Rhodes — referred to officially as Person One back in his halcyon pre-sedition charge days — in the charging documents for Oath Keepers. Within a few days that month, DOJ added to its insurrection narrative a December 14, 2020 Rhodes post calling for Trump to invoke the Insurrection Act via James Breheny’s charging documents. The iteration of the Oath Keeper conspiracy released at the same time (the fourth) introduced Rhodes’ November 9 GoToMeeting discussion of the Insurrection Act that continues to appear in the indictments.

For eight months, in other words, DOJ has been engaged in a slow-reveal of its case against Rhodes.

Now, in the sedition indictment bearing Rhodes’ name, we get a whole lot more of what Rhodes was saying:

  • Calls for civil war as soon as a it became clear Biden should win
  • Rhodes’ adoption of a Serbian (!!!) model for his civil war
  • An oblique comment — dated to “around this time” of the Inauguration — about Rhodes messaging others to organize local militias to oppose Biden’s Administration

Most of the new comments aren’t as scintillating as the catalog describing the personal arsenal Rhodes was purchasing, though, and a few of the new Rhodes comments included were public before.

There are three comments about Rhodes’ communications, though, that I find intriguing because they seem to hint at other interlocutors with the accused seditionists that we may not know about yet.

The first doesn’t even involve Rhodes directly. Rather, it relays Roberto Minuta describing to someone else that 1) Minuta had spoken directly with Rhodes the night of December 18 and 2) Minuta was sharing with someone apparently outside the Oath Keepers how Rhodes felt.

28. Also on December 19, 2020, MINUTA messaged another individual, “Oath Keepers president is pretty disheartened. He feels like it’s go time, the time for peaceful protest is over in his eyes. I was talking to him last night.”

This wasn’t in the prior indictment and I don’t recall it appearing in any other filings in the case (Minuta was not detained, so there’s less about him in the public record). Unless this was originally on the Facebook account Minuta allegedly deleted, there doesn’t seem to be any reason DOJ wouldn’t have obtained this message when they exploited Minuta’s phone. If they’ve had it for months, then the simplest explanation for its inclusion is that this indictment is all about Rhodes, and the comment captures Rhodes’ commitment to violence. In addition, this comment exhibits a closeness between Minuta and Rhodes (which we’ve seen in earlier charging documents) that may be useful from an evidentiary standpoint.

But I suspect it serves an additional purpose. Minuta wrote it not long after the December MAGA March in DC. While there, he had been hanging out with Proud Boys, including Dominic Pezzola (who like Minuta is from upstate New York). It comes after Mike Flynn’s call for insurrection. After Trump tweeted out a promise for Wild Protests on December 19, a ton of aspiring insurrectionists, both organized and not, started making plans to come to DC. In short, this was a key time in the lead-up to the operation, and Minuta was surprisingly well-connected (for a tattoo artist!!!) within the movement. So I suspect his interlocutor here is of some interest (and it’s even possible the government obtained the text from that interlocutor, not Minuta).

An exchange that Kelly Meggs had with Rhodes on Christmas 2020 is similar.

34. On December 25, 2020, MEGGS messaged the OKFL Hangout Chat, in reference to the Joint Session, “We need to make those senators very uncomfortable with all of us being a few hundred feet away.” RHODES then wrote, “I think Congress will screw him [President Trump] over. The only chance we/he has is if we scare the shit out of them and convince them it will be torches and pitchforks time is they don’t do the right thing. But I don’t think they will listen.”

As we recently saw in Proud Boy Matthew Greene’s statement of offense, using proximity to pressure members of Congress (and Pence), became well formulated enough that even a low-level Proud Boy would understand it by the day of the insurrection. Here, both Meggs (who is the Florida-based Oath Keeper who boasted of forging an alliance with the Proud Boys) and Rhodes enunciate this goal, but do so twelve days before the actual attack. As with the Minuta comment, my guess is that the his exchange reflects communication with (at a minimum) the Proud Boys about this shared goal of — in Rhodes’ formulation — terrorizing Congress. It certainly makes it clear that the intent of mobbing the Capitol was formulated well in advance of the event.

There’s one more example. For some reason, DOJ provides the exact time (without time zone) that Rhodes wrote, “There is no standard political or legal way out of this” on December 31, 2020.

40. RHODES and his co-conspirators used the Leadership Intel Chat and other Signal group chats to plan for January 6, 2021. On December 31, 2020, at approximately 10:08 p.m., RHODES wrote to the Leadership Intel Chat, “There is no standard political or legal way out of this.”

For the purposes of the indictment, this shows mens rea that the Yale Law grad leading this insurrection recognized what they were going to do next was not legal. But it also seems to reflect a response (thus the timing) to something — one I haven’t been able to guess yet. The comment comes before Texas Congressman Louie Gohmert’s lawsuit against Mike Pence, the last of a long series of ridiculous “legal” efforts, failed spectacularly. But it comes at around the same time that even Sean Hannity was beginning to give up.

For example, on December 31, 2020, you texted Mr. Meadows the following:

“We can’t lose the entire WH counsels office. I do NOT see January 6 happening the way he is being told. After the 6 th. [sic] He should announce will lead the nationwide effort to reform voting integrity. Go to Fl and watch Joe mess up daily. Stay engaged. When he speaks people will listen.”

I’m not saying that Rhodes was in contact with Hannity: But something seems to have happened just before 10:08 PM (in whatever time zone) that elicited this response which is not dissimilar from where Hannity’s brain was at the time. And if it was non-public (as Hannity’s panic was), then it suggests Rhodes may have been responding to a well-connected interlocutor.

So it’s not so much that the sedition indictment quotes Rhodes as saying really interesting things. Rather, it seems to suggest he and others were saying things to some interesting interlocutors.

Even as the government is hinting at other interesting interlocutors of the accused seditionists, as I noted above, DOJ has entirely hidden the prior back-and-forth between the Oath Keepers and the Willard Hotel. This back-and-forth involving people who were guarding Roger Stone at the Willard that morning first started to show in the Third Superseding Indictment. Once Jonathan Walden — the guy now charged by himself — got added, the indictments included this exchange:

At 9:36 a.m., WALDEN texted JAMES, “Willard hotel?” At 9:51 a.m., WALDEN placed a phone call to JAMES, which is recorded as missed. At 9:52 a.m., WALDEN texted JAMES, “I’m here, awaiting instruction.” At 10:37 a.m., JAMES placed a phone call to WALDEN, which lasted 2 seconds.

Then last month, Kenneth Harrelson released Mike Simmons’ [Person Ten] 302s (purportedly in a desperate bid to adopt his lies, but possibly also to let others know what FBI had been investigation in May).

They revealed that Joshua James, who was in charge of the security detail at the Willard, called in several times to Simmons and seems to have cited Stone’s gripe about being treated poorly to Simmons.

This is what I was referring to in this post about the effect of disappearing Mark Grods, the one overt cooperator who was at the Willard that morning, from all last week’s indictments. Several decisions made in the structure of these most recent indictments — spinning Walden off by himself, disappearing Grods, focusing on the activities of two stacks in the sedition indictment (and thereby starting the narrative at a later point in time), remaining coy about the present status of Simmons, and eliminating James and Minuta in the Crowl indictment — had the effect of eliminating the coordination with the Willard from the sedition indictment altogether.

Poof! Where’s Roger?

Trust me. I don’t think DOJ has decided that the Oath Keepers’ presence at the Willard was unimportant. On the contrary. I think they’ve just decided to move onto making other people sweat about their communications with now-charged seditionists appearing in the indictment, while hiding how much more they’ve learned about the Willard in recent weeks.

Judge Tim Kelly Releases Opinion on Obstruction Affecting as Many as Two Dozen Proud Boys

Judge Tim Kelly released his order denying Ethan Nordean’s motion to dismiss the Proud Boys’ conspiracy indictment, a challenge largely focused on DOJ’s application of the obstruction statute to January 6 (here’s my Twitter thread on the opinion). The opinion cites Dabney Friedrich’s opinion in Sandlin seven times, Amit Mehta’s opinion in Caldwell three times, and Trevor McFadden’s opinion in Couy Griffin (on one of the trespassing charges) ten times, suggesting that DC District judges (three of them Trump appointees) are coming to a consensus approving the way DOJ has charged these January 6 cases.

Perhaps the most notable language in the opinion rejects a comparison Nordean tried to make with the Brett Kavanaugh Supreme Court protests.

Arguing that the statute invites discriminatory enforcement, Defendants repeatedly point to charging decisions and plea deals related to other January 6 defendants, see ECF No. 226 at 12– 13, and the uncharged protestors on the Capitol steps during Justice Kavanaugh’s confirmation hearings, see ECF No. 113 at 13–16. But neither provides evidence of vagueness. Both merely show “the Executive’s exercise of discretion over charging determinations.” United States v. Fokker Servs. B.V., 818 F.3d 733, 741 (D.C. Cir. 2016). And “Supreme Court precedent teaches that the presence of enforcement discretion alone does not render a statutory scheme unconstitutionally vague.” Kincaid v. Gov’t of D.C., 854 F.3d 721, 729 (D.C. Cir. 2017); see also United States v. Griffin, — F. Supp. 3d —- , 2021 WL 2778557, at *7 (D.D.C. July 2, 2021) (rejecting argument that defendant’s prosecution was discriminatory given large numbers of similarly situated, uncharged individuals from January 6 and uncharged protestors at Justice Kavanaugh’s confirmation hearings). “As always, enforcement requires the exercise of some degree of police judgment, but, as confined, that degree of judgment here is permissible.” Grayned v. City of Rockford, 408 U.S. 104, 114 (1972).

That’s because eventually Kavanaugh will get to weigh in on this issue, and because DOJ’s response to Nordean’s comparison was weaker than it should have been.

In a feat of procedural wizardry, Nordean already appealed today’s decision, yesterday, by sticking it onto an appeal of Kelly’s refusal to reopen bail.

The denial of his motion to dismiss normally would not be appealable until after trial (at which point Kavanaugh can have his say).

One reason Nordean may have done that is to attempt to stave off a flood of Proud Boys rushing to join Matthew Greene in pleading out. That’s because Judge Kelly’s decision will also apply to the following groups of Proud Boys and Proud Boy adjacent defendants whose cases he is also presiding over, as well as a number of others who might get added in if — as I expect — DOJ consolidates its Proud Boy conspiracy cases in the weeks ahead:

  • Nordean (4 defendants)
  • Pezzola (2 remaining defendants after Greene’s change of plea)
  • Chrestman (6 defendants)
  • Jackman (5 defendants charged individually with obstruction, but not with conspiracy)
  • Hughes (2 defendants)
  • Pruitt
  • Samsel (2 defendants)*

All defendants charged with obstruction have been waiting for these opinions. But as it happens, almost two dozen people currently or potentially charged with obstruction will be covered by this opinion. And if the attorneys are seeing the same signs of an imminent superseding Proud Boy indictment, if they don’t think there’ll be any fresh uncertainty from another judge, they may rush for the exits before that happens.

Thus far, with assistance from Enrique Tarrio, the Proud Boys have prevented the kinds of (visible) defections we’ve seen from the Oath Keepers. But this decision — coming at the same time as Greene’s plea deal — may change that.

*DOJ has been talking about consolidating Samsel’s case with that of Paul Johnson and Stephen Chase Randolph, along with another not-yet arrested defendant. If they do that, it would normally be kept under Judge Paul Friedman since he had the case first.

Update: Corrected McFadden’s first name.

Update: Judge Randolph Moss has also issued his opinion, similarly upholding the application of obstruction. Here’s my thread on it.