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The Eight Month Investigation into the January 6 Investigation Didn’t End in March

I was going to hold off responding to this Spencer Ackerman op-ed in the NYT — which attempts to superimpose conclusions of his book onto ensuing events that have disproven some of his predictions — until I finish a half-written review of the book itself (tl;dr: it’s a great history of the war on terror, but entirely unpersuasive as to its main argument and especially sloppy when it attempts to discuss politics). But I got a bit fed up by the way he claims to be speaking about the response to January 6 with an op-ed that doesn’t incorporate anything more recent than March.

“Eight months later, there is no political response to the insurrection at all,” — Spencer claims, linking an article dated March 26 reporting, “Dem Hearings Bend Over Backward to Ignore GOP Complicity in Capitol Riot –“only a security response aimed at its foot soldiers.” That’s his most recent reference in the entire op-ed, as demonstrated by the links he uses:

Elissa Slotkin: 2/1/21

Somali plot: 1/25/19

Somali plot: 10/14/16

Mike Flynn: 7/9/16

Trump on terrorism: 8/15/16

Trump’s birtherism: 9/19/15

How the January 6 insurrectionists saw themselves: 1/5/21

Veterans: 2/4/21

Non-veteran Mariposa Castro declaring war: 1/21/21

Describing the Jan 6 investigation based on what Michael Sherwin’s comments about sedition, while ignoring what he said about holding everyone accountable: 1/13/21

[Sherwin’s resignation: 3/23/21]

Trump sent them: 1/9/21

Opting against 14A: 2/3/21

Dems on empowering the FBI: 2/5/21

DOJ seeking new domestic terror powers: 2/26/21

Slotkin again on monitoring domestic extremists: 3/23/21

“I am not a terrorist:” 1/13/21

Spencer makes no mention of any of the developments you’d look at to understand how the Biden Administration was responding to January 6, including:

  • A new domestic terrorism response that includes social media monitoring of the sort that might have prevented the attack on the Capitol, but few of the other things Spencer and others have never stopped predicting since January 6.
  • A discussion of the actions of the January 6 Select Committee, on which committee Elissa Slotkin (the Democrat Spencer quoted twice and on whom his book focuses) doesn’t sit. The committee has provided a way around the need to placate Republicans trying to avoid angering Trump, to say nothing of committees (like the House Oversight Committee) packed with key figures in the events of January 6. The committee has already moved to obtain the records of the people that Spencer claims have escaped accountability.
  • A description of Merrick Garland’s repeated comments, starting in his February 22 confirmation hearing and continuing since, that DOJ would go where the evidence leads, including to those who incited it. Garland’s DOJ has also found important ways to avoid sheltering Mo Brooks (and by association all other people who were Federal employees the day of the riot, as Trump was), and to waive executive privilege to allow multiple investigations into Trump’s actions to proceed.
  • How DOJ under Merrick Garland and Lisa Monaco has approached the January 6 investigation, notably with its use of the unpoliticized obstruction statute to charge felonies rather than (thus far at least) sedition, the use of interlocking conspiracies that have already started incorporating some organizers and which could easily be used with Trump and his flunkies, and the possibility of terrorism enhancements that would be decided at sentencing, by judges, rather than by categorical application at the start of investigation.

There are definitely ways that the two decade war on terror played a big role on January 6.

More important than the 22 veterans charged by early February is which figures in the organizing conspiracies applied their military experience to ensuring the success of the operation. Key among those is former Staff Sargeant Joe Biggs, who served in both Iraq and Afghanistan before he went on to play a key propaganda role in the 2016 election; as I’ve described, Biggs was at the head of both major fronts (East Side, West Side) of the attack, and his network incorporates the key organizers of the larger event. Charles Donohoe, Dominic Pezzola, Gabriel Garcia, Jessica Watkins, and Joshua James are other veterans who allegedly turned their war on terror training to play key roles leading an attack on the Capitol. The second front of the attack on the Capitol that Biggs seemed to have anticipated was opened — either coincidentally, or not — by a bunch of Marines, including one on active duty.

If you’re going to talk about the import of the war on terror on January 6, you also have to talk about the mental scars that veterans have brought back. That was made spectacularly clear by Landon Copeland’s PTSD-driven meltdown in a detention hearing. But even Jacob Chansley’s mental illness has ties to his service. These two are not alone among the men and women whose service scars led them to embrace the false promises Donald Trump was offering.

In his book, Spencer rightly complains about the Wanted Dead or Alive rhetoric motivating the War on Terror. He also complains about an, “obsession with the baroque, fragmentary details of what became #Russiagate,” (mistaking the equally baroque counter-propaganda hashtag for those focusing in varying degrees of obsessiveness on the investigation itself) that nevertheless ended with Bill Barr corruptly intervening to protect Trump. But Spencer apparently feels the best way to deal with something else — a plodding, but ambitious, attempt to conduct a law enforcement investigation from the attack itself to its kingpins — is to largely ignore it even while claiming to speak for it.

The January 6 investigation, even in conjunction with the Select Committee, will not fix all the problems with the War on Terror. The two together may not hold the most powerful culprits for January 6 accountable — but that’s not for lack of ambition to do just that. But — in large part because this is an investigation of mostly-white people, which goes to the core of how America’s racism and other demons almost brought down its democracy and still could — it looks more like how the US should have responded to the 9/11 attack and not the caricature that Spencer arrives at by ignoring the last six months.

Following 600 cases as DOJ meticulously obtains the camera footage to see how Alex Jones lured unwitting participants to a second front or attempts to document whether key militia members made an attempt on Nancy Pelosi’s life is not sexy. But it’s what Spencer claims we should have done in response to 9/11.

How a Trump Prosecution for January 6 Would Work

Jeffrey Toobin wrote a shitty piece arguing — seemingly based exclusively on Trump’s request to Jeffrey Rosen to delegitimize the election results in Georgia and Trump’s January 6 speech — that Merrick Garland should not prosecute Trump.

Toobin’s piece sucks for the same reason that all the mirror image articles written by TV lawyers, the ones explaining how DOJ might prosecute Trump, also suck: because none exhibit the least familiarity with how DOJ is approaching January 6, much less what allegations it has already made in charging documents. They are, effectively, nothing more than throwing a bunch of laws at the wall to see whether any stick (and in Toobin’s estimation, none do).

Almost none of these TV lawyers engage with how DOJ is applying obstruction as the cornerstone of its January 6 prosecutions. For example, Toobin considers whether Trump obstructed justice, but he only analyzes whether, when, “Trump encouraged the crowd to march to Capitol Hill but he did not explicitly encourage violence,” Trump obstructed the vote certification. Of around 200 January 6 defendants charged with obstruction, I can think of few if any against whom obstruction has been charged based solely on their actions on the day of the riot, and Trump is not going to be the exception to that rule. As with other January 6 defendants, DOJ would rely on Trump’s words and actions leading up to the event to prove his intent.

In this post, I want to lay out how a DOJ prosecution of Trump for January 6 would work. I’m not doing this because I’m sure DOJ will prosecute. I’m doing it to make the commentary on the question less insufferably stupid than it currently is.

Assumptions

The piece makes three assumptions.

First, it assumes that DOJ’s current application of 18 USC 1512(c)(2) to cover the vote certification survives judicial review. It’s not at all clear it will, either because the courts (this will go to SCOTUS) don’t believe Congress intended to include Constitutionally-mandated official proceedings like the vote certification in a law covering official proceedings, because the courts will decide that rioters had no way of knowing that interrupting Constitutionally-mandated official proceedings was illegal, or because courts will decide that rioters (all of them, as opposed to one or another making a compelling case to a jury) did not have the requisite corrupt purpose. There are currently at least nine challenges to the application of the law (at least two more have been raised since Judge Randolph Moss had prosecutors put together this list). If TV lawyers want to argue about something, this might be a more productive use of their time than arguing about whether Trump can be prosecuted more generally, because the question doesn’t require knowing many actual facts from the investigation.

This piece also assumes that DOJ would apply two things they asserted in a filing pertaining to Mo Brooks to Trump as well. That filing said that the scope of federal office holder’s job excludes campaign activity, so any campaign activity a federal office holder engages in does not count as part of that person’s duties.

Like other elected officials, Members run for reelection themselves and routinely campaign for other political candidates. But they do so in their private, rather than official, capacities.

This understanding that the scope of federal office excludes campaign activity is broadly reflected in numerous authorities. This Court, for example, emphasized “the basic principle that government funds should not be spent to help incumbents gain reelection” in holding that House or Senate mailings aimed at that purpose are “unofficial communication[s].” Common Cause v. Bolger, 574 F. Supp. 672, 683 (D.D.C. 1982) (upholding statute that provided franking privileges for official communications but not unofficial communications).

DOJ also said that conspiring to attack your employer would not be included in a federal office holder’s scope of employment.

Second, the Complaint alleges that Brooks engaged in a conspiracy and incited the attack on the Capitol on January 6. That alleged conduct plainly would not qualify as within the scope of employment for an officer or employee of the United States, because attacking one’s employer is different in kind from any authorized conduct and not “actuated . . . by a purpose to serve” the employer. Id. § 228(1)(c).

These two principles, taken together, would get beyond some of the challenges involved in investigating someone covered by Executive Privilege and making orders as Commander-in-Chief. Importantly, it would make Trump’s activities in conjunction with the January 6 rally subject to investigation, whereas they broadly wouldn’t be if they were done in Trump’s official capacity.

Finally, if DOJ were to charge Trump, they would charge him in a conspiracy to obstruct the vote count that intersected with some of the other conspiracies to obstruct the vote count, possibly with obstruction charges against him personally. In general, I don’t think DOJ would charge most of Trump’s discrete acts, at least those conducted before January 20, as a crime. There are two possible exceptions, however. His call to Brad Raffensperger, particularly in the context of all his other efforts to tamper in the Georgia election, would have been conducted as part of campaigning (and therefore would not have been conducted as President). It seems a clearcut case of using threats to get a desired electoral outcome. It’s unclear whether Trump’s request that Mike Pence to commit the unconstitutional action — that is, refusing to certify the winning electoral votes — would be treated as Presidential or electoral. But that demand, followed closely with Trump’s public statements that had the effect of making Pence a target for assassination threats, seems like it could be charged on its own. Both of those actions, however, could and would, in the way DOJ is approaching this, also be overt acts in the conspiracy charged against Trump.

The other conspiracies

If DOJ would only charge Trump in the context of a conspiracy to obstruct the vote (with whatever other charges added in) that intersects with some or all of the other conspiracies charged, it helps to understand what DOJ has done with those other conspiracies. Here’s what the currently charged conspiracies look like:

DOJ has been treating the multiple Proud Boy conspiracies as one (about which Ethan Nordean is complaining); I think they’re doing that — and excluding other key players who could be in one of the conspiracies, including all the most serious assaults committed by Proud Boy members — as a way to show how the cell structure used on the day worked together to serve a unified purpose, while also managing visibility on different parts of their ongoing investigation. For my purposes here, I’ll focus on the Leadership conspiracy, with the understanding that (notwithstanding Nordean’s complaints) DOJ credibly treats the others as the implementation of the conspiracy the Proud Boy Leaders themselves have laid out.

All of these conspiracies, as well as a disorganized militia conspiracy DOJ has been saying they’ll charge, share the same object: to stop, delay, or hinder Congress’ certification of the Electoral College win. Basically, all these conspiracies, as well as a hypothetical one that DOJ might use against Trump, would involve ensuring that he still had a route to remain in power, that he lived to fight another day. By themselves they did not involve a plan to remain in power (though Trump could be charged in a broader conspiracy attempting to do that, too).

They also all allege common Manners and Means (to be clear, these defendants are all presumed innocent and I’m speaking here of what DOJ claims it will prove). Those include:

  • Agreeing to plan and participate in an effort to obstruct the vote certification
  • Encouraging as many people as possible, including outside their own groups, to attend the operation
  • Funding the operation
  • Preparing to make participants in the operation as effective as possible, in all cases including communication methods and in most cases including some kind of defensive or offensive protections
  • Illegally entering the Capitol or its grounds and occupying that space during the period when Congress would otherwise have been certifying the vote

While all of those conspiracies follow the same model, there are some unique characteristics in four that deserve further mention:

Proud Boy Leaders Conspiracy: Operationally, those charged in the Proud Boy Leaders conspiracy managed to assemble a mob, including Proud Boy members (many organized in sub-cells like the Kansas City cell Billy Chrestman led), fellow travelers who met up and marched with the Proud Boys that morning, and those who knew to show up at 1PM (while Trump was still speaking). With apparent guidance from the charged co-conspirators, the Proud Boys managed to kick off the riot and — in the form of the Proud Boy Front Door co-conspirator Dominic Pezzola wielding a stolen shield — break into the building. Thus far (probably in part because Enrique Tarrio is not currently charged in this or any conspiracy), the government has been coy about what evidence it has of coordination with others, including at a December MAGA March in DC. Key planning steps, however, involve deciding not to show Proud Boy colors the day of the riot and fundraising to buy gear and support travel (Christopher Worrell got to DC on a bus paid for by the Proud Boys but that has not yet been charged in any conspiracy). On top of radios and blow horns, two Telegram channels — the larger of which had 60 members — appear to have played key roles in organizing events the day of the riot. To the extent that Proud Boys came armed, they appear to have done so individually, and thus far, DOJ has not included the worst assaults committed by Proud Boys in any of the conspiracies. Several of the charged co-conspirators started talking about war in the days and weeks after the election and those who gathered with the Proud Boys on the morning of the riot skipped Trump’s rally, making their focus on the vote certification much clearer than many others that day.

Oath Keeper Conspiracy: The indictment alleges this conspiracy started on November 9 with a plan both to use Antifa as a foil to excuse violence and in expectation that that violence would be Trump’s excuse to invoke the Insurrection Act and/or respond to that call. The conspiracy used the promise of serving as security — both at the rally and for Roger Stone and other “dignitaries” — to recruit people to come to DC, and in fact a number of the charged co-conspirators were present with Stone the morning of the riot. In addition to kitting out in various Oath Keeper gear at different events on the day of the event, the militia had a serious stash of weapons at the Ballston Comfort Inn in case things did turn violent. The key thing, operationally, this conspiracy achieved was to provide organized brawn to an effort to open a second front to the attack via the East Door of the Capitol. The nominal head of this conspiracy, Florida State head Kelly Meggs, claimed to have set up an alliance with other militias in Florida (he first made the claim a day after the militia had provided “security” for Stone at an event in Florida). Over the course of the investigation, the government has also gotten closer to alleging that Meggs expressed the desire to and took steps to target Nancy Pelosi personally while inside the Capitol.

3%er Southern California Conspiracy: The men charged in this conspiracy — who occupy the overlap between 3%ers and the anti-mask community in Southern California — organized themselves and others to come armed to the Capitol. As alleged, they started organizing formally in explicit response to Trump’s December 19 advertisement for the event. Both online and in an appearance by Russell Taylor at the rally on January 5, they called for violence. They organized in advance via Telegram chat and on the day with radios. Operationally, these men personally participated in the fighting on the west side of the Capitol (most never went in the building but the government contends they were in restricted space outside). But from a larger standpoint, these men form one intersection between the more formal Trump organization behind the rallies and a group of radicalized Trump supporters from across the country.

Disorganized Conspiracy: You’ve likely never heard of Ronnie Sandlin and Nate DeGrave, nor should you have. Their conspiracy (DOJ has not yet charged it but has been planning to do so since April) started when Sandlin responded to Trump’s calls for people to attend the event on December 23 and started looking online to join up with others. “Who is going to Washington D.C. on the 6th of January? I’m going to be there to show support for our president and to do my part to stop the steal and stand behind Trump when he decides to cross the rubicon.” They’re an excellent example of a bunch of guys — along with Josiah Colt, who entered into a cooperation agreement against the other two — who got radicalized via a messy stew of ideologies online, armed themselves for insurrection, raised money and traveled to DC together planning for violence, and allegedly engaged in assaults at two key points inside the Capitol that allowed the occupation of the Senate chamber, and in Colt’s case, Mike Pence’s chair itself. Here’s a video of the two (in orange and all black) fighting to get into the Senate just released today:

Colt has admitted (and may have GoPro video showing) that the three went from learning that Pence had refused Trump’s demand — the government doesn’t say whether they learned this via Trump’s tweet — to forcibly occupying the Senate in response. So while you haven’t heard of them and they’re not members of an organized militia, they still played a tactically critical role in forcibly occupying the Capitol in direct response to Trump’s exhortations.

Questions

There are still a slew of questions about Trump’s actions that have — publicly at least — not been answered. Some that would be pertinent to whether he could be charged with conspiracy include:

  • When Trump said, “stand back and stand by” to the Proud Boys on September 29 — after they had already threatened a Federal judge to serve Trump’s interest, and whose threats had been dismissed by Bill Barr as a technicality — did he intend to signal some kind of relationship with the Proud Boys as the Proud Boys in fact took it to be? Was this part of an agreement to enter into a conspiracy?
  • When both the Proud Boys and the Oath Keepers started planning their January 6 operation in the days after the election, speaking already then of being called by the President to commit violence, was that based on any direct communications, or was it based on things like the earlier Proud Boys comment?
  • When Proud Boys and Oath Keepers who would later lead the operation on January 6 formed an alliance to keep Trump in office in December at an event with Roger Stone, was Stone involved?
  • What conversations did Trump and Stone have about his pardon even as these militia plans were being put in place?
  • What evidence does DOJ have about the Proud Boys’ decision — and their communication of that decision to at least 60 people — not to attend the Trump speech but instead to form a mob that would later march on the Capitol and lead the breach of it while Trump was still speaking?
  • Did Trump time the specific lines in his speech to the Proud Boys’ actions, which were already starting at the Capitol?
  • What orders were given to the Park Police about various crowd sizes and planned events that explains their failure to prepare?
  • Trump told Acting Secretary of Defense Christopher Miller to use the National Guard to protect his protestors on January 3. On January 6, some Proud Boys expressed surprise that the Guard was not protecting them. Did the Proud Boys have reason to believe the Guard would not protect the Capitol but instead would protect them? Why was the Guard delayed 4 hours in responding? Why was there a 32 minute delay during a period when the Proud Boys and Oath Keepers were considering a second assault in relaying an order from Miller to the Guard Commander who had the Guard in buses waiting to deploy? Did the militias call off their second assault based on advance information that the Guard was finally being deployed?
  • Both Rudy and Trump made calls to Members of Congress on January 6 making specific asks for delays at a time when the rioters had already breached the building. Did that include a request to Paul Gosar, and did that result in the delay in evacuating the House side that led to Ashli Babbitt’s death, which Gosar (and Trump) have been key figures in celebrating? Would DOJ be able to get either Gosar or Tuberville’s testimony (they already have the voice mail Rudy left for Tuberville, and because Rudy’s phones have otherwise been seized, if they can show probable cause they have access to anything on his phone).
  • Rudy had texts from a Proud Boy affiliate within 9 days after the riot about implementing a plan to blame it all on Antifa. That guy  had, in turn, been in contact with at least six people at the riot. Were they in contact before and during the riot? Again, DOJ has the phones on which Rudy conducted those conversations, and they happen to have his cell location for other purposes, so the question is do they have probable cause to get the same data for the Jan 6 operation?

What a Trump conspiracy might look like

Even without answers to those questions, however, there are a number of things that Trump did that might form part of a conspiracy charge against him (this timeline from Just Security has a bunch more, including magnifying threats from people who would later take part in the insurrection). The Manners and Means would mirror those that appear in all the charged conspiracies:

  • Agreeing (and ordering subordinates) to plan and participate in an effort to obstruct the vote certification
  • Encouraging the Proud Boys to believe they are his army
  • Personally sowing the Big Lie about voter fraud to lead supporters to believe Trump has been robbed of his rightful election win
  • Asking subordinates and Republican politicians to lie about the vote to encourage supporters to feel they were robbed
  • Encouraging surrogates and campaign staffers to fund buses to make travel to DC easier
  • Using the January 6 rally to encourage as many people as possible to come to DC
  • Applauding violence in advance of January 6 and tacitly encouraging it on the day
  • Recruiting members of Congress to raise challenges to the vote count
  • Asking members of Congress to delay evacuation even as the rioters entered the building, heightening the chance of direct physical threat (and likely contributing to Ashli Babbitt’s death)
  • Asking Mike Pence to do something unconstitutional, then targeting him after he refused, virtually ensuring he would be personally threatened
  • Possibly muddling the line of command on which civilian agency would coordinate response, ensuring there would be none
  • Possibly taking steps to delay any Guard response at the Capitol
  • Possibly ignoring immediate requests from help from leaders of Congress

DOJ knows exactly what happened with Trump’s requests that DOJ serve as the civilian agency to lead response on Janaury 6, and some of the witnesses have given transcribed interviews to Congress and probably DOJ IG. Some details about which there remain questions — who delayed the National Guard — would be available to subpoena. The big question, and it’s a big one, is what kind of communications Trump had with members of Congress to ensure there was maximal conflict and physical risk on that day.

But much of this, including the illegal request of Mike Pence and the specific targeting of him in the aftermath, which directly affected the actions of the disorganized conspiracy, are already public. Both the computer Enrique Tarrio brought to DC and Rudy’s phones have been accessible if DOJ wanted to obtain a warrant for them.

None of this addresses the complexities of whether DOJ would charge a former President. None of this guarantees that DOJ will get key charged defendants to flip, whose cooperation might be necessary to move higher in the conspiracy.

I’m not saying DOJ will charge Trump.

But if they were considering it, it’s most likely this is how they would do so.

Update: Per Quake’s suggestion I’ve added the funding of buses.

Update: Reuters reports that FBI has found “scant” evidence of central coordination in the attack, specifically naming Stone.

Three Tea Leaves in Judge Tim Kelly’s Matthew Greene Detention Decision

Judge Tim Kelly, the judge presiding over most of the Proud Boy cases, just ruled that Matthew Greene must remain detained until his trial as a threat to the community. Greene’s defense attorney Michael Kasmarek made a compelling argument that the things Greene did at the Capitol weren’t as bad as some other defendants and a witness who testified that Greene had suggested they would have killed Nancy Pelosi if they had found her is unreliable (here is his brief). Prosecutor Erik Kenerson argued that the things Greene did since January 6 — such as stocking up on ammunition and calling for war — were the things that merited detention (here’s the government brief).

It didn’t help Greene that since these filings New York State indicted him because some of the guns he possessed when the FBI showed up were not legal in NY.

But I found the hearing most interesting for how Kelly got to the decision and something he said along the way.

First, after Kenerson said that two of the defendants were at least considering pleading, Kelly said he didn’t think he’d rule on the co-defendant William Pepe’s pending motions — a motion to dismiss the obstruction count, a motion to sever Pepe from Greene and Dominic Pezzola, and a motion to transfer the case out of DC — until after defendants decided they were going to trial.

Given my focus on pending challenges to the obstruction count, it’s significant that Kelly would defer ruling on it. According to a list of all the pending 1512 challenges submitted to Judge Randolph Moss by Brady Knowlton, Kelly has similar challenges from Ethan Nordean (which I wrote about here) and Joshua Pruitt.

But two other comments Kelly made suggest it may not matter.

As he began his analysis of the detention decision for Greene, he noted that the obstruction charge he and the others face may carry a sentence of up to 20 years; he characterized the charged crime as the obstruction of the peaceful transfer of power and described it as a gravely serious crime.

That doesn’t sound like the language of a judge who finds the obstruction charge inapt.

And then from that discussion Kelly described how the damage to the window of the Capitol he is charged with as a co-conspirator of Pezzola carries a terrorism enhancement.

It does — I’ve written about it several times, and such allegations have been before Kelly since a detention dispute for Pezzola in February. But I don’t remember Kelly emphasizing it as much in the past.

To be very clear: Kelly was talking about these legal implications in terms of what the grand jury had decided to charge these Proud Boys with. He wasn’t judging that the Proud Boys are terrorists; rather, he is noting that the grand jury charged them in such a way to be treated as such.

Still, it reflected a thought process I don’t recall him expressing in the same way before. And that’s of particular interest, because Kelly ruled Greene should stay in jail almost entirely because of the risk he — and the Proud Boys — posed going forward.

Darrell Youngers, Christopher Warnagiris, and Jason Dolan: Marines at the East Door

Among the many January 6 insurrectionists whose arrests became public yesterday were George Tenney, from Anderson, SC, and Darrell Youngers, who lives in Cleveland, TX. Tenney is involved with a right wing website, The PowerHouse Patriot. It’s not clear what Youngers does for a living, but according to a witness who IDed him, he has been involved with leadership courses. Ostensibly, they were charged via the same epic 30-page arrest affidavit because they traveled through the Capitol together on the day of the insurrection. They appear to have met that day.

In the weeks leading up to the insurrection, Tenney tried to figure out how to join an armed militia group.

Even prior to the January 6 riot, TENNEY discussed “armed militia patriots” and stated that “we” may siege the U.S. Capitol Building. On December 14, 2020, TENNEY wrote to Person1, “Where and how do I get involved or a part of one of these patriot revolution groups? Like proud boys, or any of the other American Patriot militias??” Person-1 responded that Person-1 would “ask around.”

By December 28, Tenney appeared to know that there was a plan to siege the Capitol.

On December 27, 2020, TENNEY wrote, “I heard over 500k armed militia patriots will be in DC by the 4th. And will start early waiting for the rest of us on the 6th. They already predict over [a] million people will be in DC the 6th.” The next day, he wrote, “We need to talk about the trip to D.C…It’s starting to look like we may siege the capital building and congress if the electoral votes don’t go right….we are forming plans for every scenario.” On December 29, TENNEY wrote a message that included the following: “I’ve been watching these pod cast things from this guy. He says Pence is a traitor and will betray the US on the 6th.”

Even before they entered the Capitol, Tenney and Youngers were moving together.

They entered the Senate Wing door at 2:19PM — the door first breached by former Marine Dominic Pezzola. The camera catches Youngers’ Marines jacket shortly after the two enter.

They went from there through the Rotunda into the East Foyer, with Tenney in the lead. Which means he was the first to get to the East Door to open it, letting the assembled rioters outside in as Youngers looks on.

Youngers, who’s involved in leadership training, lets Tenney do the hard work of wrestling with a cop and getting charged with civil disorder. They retreat for a bit, but then return to pushing cops again just as Marine Major Christopher Warnargiris is among the first to enter, as if he was just waiting for the door to open (I believe Youngers is standing to the right of the door).

Here’s Youngers and Warnargiris at that East door, standing within a few feet of each other, as both help to ensure rioters will succeed in keeping this door open.

Just outside that door, of course, is former Marine and Oath Keeper Jason Dolan, also standing at the top of the stairs as if he knew the door was going to open, waiting for a Stack of militia members to help force the door open.

This is believed to be a picture Kenneth Harrelson took of Dolan filming just after the doors opened.

At a time Dolan probably suspected he might be arrested, the government suspects, he went on Gateway Pundit to claim that he and everyone else couldn’t have been trespassing, because the magnetic doors couldn’t have opened unless someone unlocked it.

As part of this story, the anonymous source believed to be Dolan claimed that the Marine who opened the doors first went inside and then opened the doors from the inside.

Retired Marine: We’re on the top level now – about 15 feet from the doors just before they opened up. People are yelling and screaming. Everyone’s cheering, all kind of stuff. It’s chaotic. But we’re just kind of there. And then all of the sudden the doors open up from the inside. I have a picture taken about two seconds before the doors opened. And then I have a picture taken about six seconds later and the doors were open.

Jim Hoft: And they were not opened from the outside?

Retired Marine: They were opened from the inside. Now one of the stories I read recently was that some Marine, some Marine Major, went inside and managed to run around and open up the doors. And I think that was on your website, as well. But here’s what I can tell you about magnetic locks. If a door is locked by a mag lock it cannot be opened from the outside or the inside unless the person controlling that door opens that door by turning off the magnetic lock which those doors according to the photos I took are equipped with. [my emphasis]

The story doesn’t make sense if Dolan was talking about Warnargiris. But the government accuses Youngers, also a former Marine, of being one of the people who entered the West side only to go within minutes to the East side to open a second front.

That’s a lot of Marines who seemed to know that door was going to open.

In [Legal] Defense of the Nazi

The biggest known investigative fuck-up in the January 6 investigation thus far was when the FBI raided the home of Marilyn and Paul Hueper believing that Marilyn was a woman that the FBI suspects, based off surveillance video, may have been part of stealing Nancy Pelosi’s laptop. The Hueper’s claims about their actions on January 6 don’t seem to be entirely forthright, but Marilyn has made a solid case that the FBI mistook her for the woman in question.

I think the FBI did have probable cause for that search, but I also think the FBI did not use available tools — most notably the Google and GeoFence warrants they’ve used in many other cases — that should have been able to exclude Marilyn as the suspect.

I think it likely that DOJ has made an error, of another sort, with Nazi sympathizer Timothy Hale-Cusanelli, detaining him for four months based off a mistaken belief he played a more important role in January 6 violence than he did.

Hale-Cusanelli was arrested on January 15, three days after a co-worker of his, who was already an NCIS informant, alerted the FBI that Hale-Cusanelli took part in the riots and had, in the past, espoused fairly extreme white supremacist views. On January 14, the informant recorded Hale-Cusanelli describing giving hand signals to the mob and taking a flag that Hale-Cusanelli described as a “murder weapon” to destroy.

Hale-Cusanelli’s arrest warrant, which charged him with the misdemeanor trespassing charges everyone gets charged with along with a civil disorder charge, included no video from the day of the attack. When the government indicted him, they added obstruction charges and abetting.

When the FBI arrested Hale-Cusanelli, he admitted in an interview that he gave hand and voice signals — which could be no more than waving people forward — to encourage others to “advance” past cops. But the government’s primary basis to keep him jailed, when they first succeeded in doing so back in January, seems to have been that, once you cut him off from the military network he worked in as a Navy contractor, he was bound to turn to war.

Releasing Defendant from custody will only reinforce his belief that his cause is just. Given his impending debarment from Naval Weapons Station Earle, and his potential Administrative Separation from the U.S. Army Reserve, Defendant’s release will likely leave him with nowhere to go and nothing to do except pursue his fantasy of participating in a civil war. If nothing else, the events of January 6, 2021, have exposed the size and determination of right-wing fringe groups in the United States, and their willingness to place themselves and others in danger to further their political ideology. Releasing Defendant to rejoin their fold and plan their next attack poses a potentially catastrophic risk of danger to the community.

When they made a more substantive (and successful) argument he should remain detained, they focused on two things: his choice of a third party guardian was also an extremist who had helped him try to game reporting from the Navy on his extremism, and his extremism itself, including that he groomed to look like Hitler.

They also argued that Hale-Cusanelli poses a threat to the informant who IDed him.

Hale-Cusanelli is appealing his detention. But both he and his attorney, Jonathan Zucker, are getting fed up. Last week, Zucker submitted a motion asking to be replaced, but also claiming that he has received nothing in discovery about what Hale-Cusanelli did at the Capitol.

The parties were last before the court on May 12, 2021. At that time the defense expressed concern to the court regarding the paucity of discovery in this case. To date the prosecution has disclosed the defendant’s custodial interview, a surreptitiously recorded conversation between the defendant and a cooperating witness who was wearing a recording device provided by law enforcement, two portions of text messages between the defendant and two other civilians. The prosecution has provided nothing else, particularly no evidence regarding what defendant did on January 6 either outside or inside the Capitol. Nor any other evidence regarding the defendant’s activity in relation to the charged offenses. 1

1 Defendant advises that other defendants have disclosed to him that other defendants indicated they received discovery of recordings from inside the Capitol where defendant has been seen peacefully walking in the hallways.

Yesterday, the government responded. AUSA Kathryn Fifield claimed that most of what Zucker had said was not accurate.

The bulk of Defendant’s representations to the Court regarding discovery—both in terms of what they have received and government’s response to their requests—are not accurate. To date, the government has provided the most substantial portions of the government’s evidence. That includes the CHS recordings in which Defendant makes substantial admissions regarding his criminal conduct on January 6, Defendant’s custodial interview in which Defendant makes substantial admissions regarding his criminal conduct on January 6, and a partial extraction of Defendant’s cellular phone. The partial extraction includes the extraction report and the native files, including chats, videos, and photos. Defense counsel has confirmed with the undersigned that they have access to these materials on USAfx. Further, the government separately provided Capitol CCTV video capturing Defendant inside the Capitol building on January 6 and reports of interviews conducted by NCIS. Defense counsel confirmed receipt of these materials with prior government counsel. Thus, Defendant is already in possession of the evidence most relevant to detention proceedings and to Defendant’s conduct on January 6, and has been in receipt of these materials since before the last status hearing on May 12, 2021.

She described how, because of the technical issues that occur every time the government shares large volume electronic files with defense attorneys, Zucker still doesn’t have the full content of Hale-Cusanelli’s phone.

But the accompanying discovery summary in fact seems to confirm what Zucker has said: he has received no or next to no surveillance video of his client in the Capitol, and what he has gotten appears to pertain primarily to a different person he represents (Zucker also represents Jerod Wade Hughes and Thomas Webster, and did represent Dominic Pezzola for a period).

Video recording of custodial interview of Defendant Hale-Cusanelli produced via USAfx on February 22, 2021.

Bulk report of interviews conducted by NCIS produced via email on March 7, 2021.

Report of interview conducted by NCIS of Sergeant John Getz produced via email on March 8, 2021.

Partial extraction of Apple iPhone – includes Cellebrite Extraction Report (PDF 1209 pages) and native files most relevant to Defendant’s detention proceedings and conduct on January 6, 2021. Produced via USAfx on March 11, 2021.

Capitol Surveillance CCTV produced via USAfx in connection with another defendant represented by defense counsel on March 31, 2021. Upon information and belief, you confirmed receipt of this video with prior government counsel. Reproduced in the USAfx folder for this case on May 25, 2021. The Government has designated these files Highly Sensitive under the Protective Order issued in this case.

CHS video and audio recordings produced via USAfx on May 7, 2021. The Government has designated these files Sensitive under the Protective Order issued in this case. Cellebrite Extraction Report (PDF 63073 pgs): iPhone 6s (A1633), MSISDN 7328105132, ISMI 310120163205040. Produced via USAfx on May 7, 2021.

Full extraction of Defendant’s Apple iPhone produced on encrypted zip drive on or about April 28, 2021, on Blu Ray discs on or about April 28, 2021, and on defense counsel’s hard drive on or about May 25, 2021.

One of the main images in an earlier detention memo from inside the Capitol is indexed to Pezzola, so that may be the discovery in question.

This guy has absolutely loathsome views. But they are views protected by the First Amendment — and also views shared by a goodly percentage of the other January 6 defendants, many of them out on personal recognizance. The others who, like Hale-Cusanelli, were of particular concern to the government because they held clearance on January 6 also engaged in physical assault — and Freddie Klein was released even after that. As I noted, the government spent two months confirming details of active duty Marine, Major Christopher Warnagiris’ far more important conduct from the day before arresting him, and then let him out on personal recognizance.

While the government has provided evidence that he did intend to obstruct the vote count, nothing in his conduct from the day substantiates the civil disorder challenge. Yesterday, Fifield asked for two more months to find that evidence.

This seems like a mistake that the government is simply doubling down on. But if you haven’t found more compelling evidence after four months, what are the chances you will?

In Adding Matthew Greene to a Conspiracy with Dominic Pezzola, DOJ Formally Alleges the Proud Boys Committed a Crime of Terrorism

At a detention hearing for Charles Donohoe yesterday, Magistrate Judge Michael Harvey asked a long series of questions, including what a “normie” is, what Telegram is (it is stunning that a DC Magistrate doesn’t know that, but that’s a testament they won’t accept US legal process), and whether “Milkshake,” who had been described saying a lot of really damning things in an organizational channel, was part of the conspiracy. AUSA Jason McCullough said that DOJ is still assessing Milkshake’s — whose real name is Daniel Lyons Scott — criminal liability, but since he was filmed fighting with some cops, I’d be arranging legal representation if I were him.

Along the way, however, the questions led McCullough to provide several new details on the Proud Boy conspiracy. One question he didn’t answer is whether the government knows that Donohoe succeeding in “nuking” some texts describing organizational efforts, as he described wanting to do after Enrique Tarrio got arrested.

McCullough also revealed something that was not yet public: the government had rounded up another Proud Boy, Matthew Greene, and indicted him in what I call the Proud Boy “Front Door” conspiracy along with Dominic Pezzola and William Pepe. In doing so, they did something more important for their larger case. First, they changed the purpose of the conspiracy from what it was originally charged to match all the other militia conspiracies (from busting through the first door to obstructing the vote count). Here’s what the militia conspiracies currently look like as a result:

It was probably fairly urgent for DOJ to do this (and Greene’s inclusion may have been just a convenient rationale). Here’s how the indictment changed from the original Indictment to the Superseding one (S1):

In general, the government is charging Pepe and now Greene with more than they originally charged Pepe with based on a theory that they abetted Pezzola’s alleged crimes. But the critical change is highlighted. Originally (marked in pink), just Pezzola was charged for breaking the window through which the initial breach of the Capitol happened. But in this indictment (marked in yellow), DOJ charges Pepe and Greene for abetting Pezzola in breaking that window.

The reason they did this is because 18 USC 1361 is the crime for which DOJ is arguing that all key Proud Boy defendants can be detained pre-trial, not just Pezzola, but also Joe Biggs, Ethan Nordean, Zach Rehl, and Charles Donohoe. In detention hearings, the government has argued that it counts not just as a crime of violence that allows the government to argue that a defendant is eligible for detention, but also that, because it was done to coerce the conduct of government, it triggers a terrorism designation for detention purposes.

This is how the argument looks in detention memos:

As it did before, the United States moves for detention pursuant to 18 U.S.C. § 3142(e)(3)(C), which provides a rebuttable presumption in favor of detention for an enumerated list of crimes, including Destruction of Property in violation of 18 U.S.C. § 1361. The United States also seeks detention pursuant to 18 U.S.C. § 3142(f)(1)(A), because Destruction of Property, in violation of 18 U.S.C. § 1361, is a crime of violence. Moreover, when Destruction of Property is “calculated to influence or affect the conduct of government by intimidation or coercion,” it also qualifies as a federal crime of terrorism. See 18 U.S.C. § 2332b(g)(5)(B).

This was an issue in the Monday detention hearing before Judge Tim Kelly for Biggs and Nordean. After the hearing, he required the government to submit a picture of Pezzola breaking that window.

And it will likely become an issue when Joe Biggs, at least, appeals his detention, as he noticed he would do yesterday (it would be a still bigger issue in Nordean or Donohoe’s case).

In fact, the government has been making this argument for some time.

But it wasn’t until this supserseding indictment that the government formally aligned Pezzola’s actions — including spectacularly breaking that first window with a riot shield — with the rest of the Proud Boy indictments, in fact making them (as the government has already argued) the same conspiracy, a conspiracy involving terrorism.

Anatomy of a Potential January 6 Cooperation Agreement

I’ve written in passing about Jon Ryan Schaffer, the front man for the heavy metal band Iced Earth who was arrested for involvement with spraying bear spray during the January 6 insurrection, several times. In this post I noted that there must be something more to his case because Schaffer had been sitting, uncharged, in jail for months.

Jon Ryan Schaffer: The front man for the heavy metal band Iced Earth and an Oath Keeper lifetime member, Schaffer was arrested for spraying some police with bear spray. But two months after his arrest and detention, he has not been (publicly) indicted and only arrived in DC on March 17. The government has not publicly responded to his motion to dismiss his case on Speedy Trial grounds. All of which suggests there’s something more there that we can’t see.

Yesterday I included Schaffer among those likely to get cooperation agreements (rather than straight guilty pleas), then updated the post with yet another data point suggesting I was correct.

[A]t least some of the expected pleas may be cooperation agreements. For example, Ryan Samsel — who breached the west side of the Capitol in coordination with Proud Boys Dominic Pezzola and William Pepe, knocking out a cop along the way — asked for a continuance to discuss a plea. One of the main Oath Keeper prosecutors, Ahmed Baset, asked for a continuance before indicting Oath Keeper associate Jon Schaffer, who was among the worst treated defendants and who agreed to the continuance in spite of remaining in pre-trial detention. Kash Kelly, currently charged with trespassing but also someone raised in discussions between Proud Boys affiliate James Sullivan and Rudy Giuliani, got a continuance to discuss a plea. Bryan Betancur, a Proud Boy who got jailed for a probation violation after he lied to his probation officer to attend the event, also got a continuance to discuss a plea to resolve his trespassing charges. The aforementioned Riley Williams, who was charged with obstructing the vote count and stealing a laptop from Nancy Pelosi, was filmed directing movement inside the Capitol, and has ties with Nick Fuentes, also got a continuance to discuss pleading before indictment. All five of these people likely have information that would be of use to prosecutors. All could limit their prison time (which would likely be significant for Samsel, who is accused of assault, played a key role in the insurrection, and has a criminal record) by cooperating with prosecutors. If any of these people sign plea deals — especially Samsel — it will likely provide new insight into how the conspiracy worked. Even with a plea deal, Samsel may still face a stiff sentence.

[snip]

Update: Meanwhile, Jon Schaffer just agreed to two more weeks in jail.

So the signs suggesting the government was pursuing a cooperation agreement in this case have been pretty clear.

But yesterday, DOJ made that even more clear by posting a filing to PACER — which was supposed to be sealed — making such negotiations explicit.

As stated in the Consent Motion to Continue, the government and counsel for the defendant have conferred and are continuing to communicate about this matter. This has entailed a series of debrief interviews with the defendant that began on March 2, 2021. Based on these debrief interviews, the parties are currently engaged in good-faith plea negotiations, including discussions about the possibility of entering into a cooperation plea agreement aimed at resolving the matter short of indictment. Among the contemplated plea terms upon acceptance of a plea are the defendant’s release pending sentencing.

[snip]

[T]he parties request that this filing be docketed under seal. Such an order is appropriate because the filing relates to sensitive information about the defendant’s cooperation with the government and ongoing plea negotiations that are not public. Accordingly, disclosure may reveal the existence, scope, and direction of the ongoing and confidential investigation. If alerted to this information, investigation targets against whom the defendant may be providing information about could be immediately prompted to flee from prosecution, destroy or conceal incriminating evidence, alter their operational tactics to avoid future detection, attempt to influence or intimidate potential witnesses, and otherwise take steps to undermine the investigation and avoid future prosecution. Accordingly, these facts present an extraordinary situation and a compelling governmental interest which justify sealing of this filing pertaining to this investigation that is being submitted at this time. [my emphasis]

You’ll recall that PACER was one of the targets of the Solar Winds hack, which raised concerns that sensitive documents detailing things like cooperation agreements and investigative targets might have been compromised. The Courts’ efforts to respond have bolloxed up PACER ever since, which has contributed to an unacceptable delay in postings of non-sensitive documents as the flood of January 6 filings hit.

One of the few things that DOJ has managed to post in timely fashion is this filing, which was supposed to be sealed.

This disclosure may make it harder to negotiate a cooperation agreement (or who knows? it might make it easier!). Certainly, it may present security concerns for Schaffer when he is released, whether or not he cops a plea, because he would get such a plea deal in exchange for testimony against a highly skilled armed militia, and they’ll assume he got a deal if he is released pre-trial.

Aside from the very real concerns about how this might affect the investigation into the Oath Keepers, however, the release of the filing is useful for the details it provides.

First, this cooperation deal, if it happens, will be the first of all 350+ defendants.

The government’s ongoing plea negotiations with this defendant are the first and most advanced plea negotiations involving any of the over 300 Capitol Riot defendants.

That would mean that others — like the cooperating witness with damning information on Dominic Pezzola and the un-indicted co-conspirator in the Proud Boys conspiracy — have not been charged at all (as descriptions of them in filings imply). It also suggests that for all the reporting about imminent deals, the cooperation agreements, at least, are two weeks or more away. Every other potential cooperation deal I named in this post follows the same pattern of filings that Schaffer’s does, but they have later deadlines for their continuance, though Ryan Samsel is the only other one who is in custody for January 6 (as opposed to other things), which adds urgency to any plea deal:

  • Bryan Betancur (in MD state custody): April 27
  • Ryan Samsel (in federal custody): May 7 (after being extended from April 1, moving to swap his attorney, then unmoving to do so, though currently he is represented by both)
  • Christopher Kelly (not in custody): May 10
  • Riley June Williams (not in custody): May 28
  • Kash Kelly (in Federal prison for gang-related drug crimes which he also cooperated on): indefinite

It looks like Samsel might have been the first plea deal, but an aborted swap of lawyers suggests he may have gotten cold feet. (Recall that Rick Gates did something similar before he flipped in the Mueller investigation; because of his criminal record, Samsel faces a stiffer prison sentence than Schaffer regardless of what happens).

Schaffer’s filing explains why cooperation agreements will be weeks away, too: First, plea deals are being reviewed “at various levels of government.”

Plea terms have thus required extensive review and approval at various levels of government necessitating more time than usual to approve and negotiate.

Given that Biden doesn’t have a confirmed US Attorney in DC, this likely means that at least Acting Deputy Attorney General and former National Security Division head under Obama John Carlin is reviewing these deals, if not Merrick Garland himself. Lisa Monaco should be confirmed as Deputy Attorney General imminently, and she’s likely to be interested in all this, too. That is, the level of review this filing suggests this plea deal is getting also hints at the (unsurprisingly) high level involvement in the investigation as a whole.

Perhaps one of the most damaging disclosures by the release of this document is that Schaffer’s attorneys have admitted, non-publicly, things they’ve argued against publicly. In a filing asking for pre-trial release, Schaffer’s lawyers argued that merely possessing bear spray did not make Schaffer enough of a threat to require pre-trial detention.

The Government sought “detention based on [Mr. Schaffer] carrying a dangerous weapon inside a restricted ground.” Reporter’s Transcript of Detention Hearing, p. 7: 8- 10.2 Magistrate Judge Faruqui detained Mr. Schaffer “Upon the Motion of the Government attorney pursuant to 18 U.S.C. § 3142(f)(1).” (Doc. 12, p. 1)

Mr. Schaffer cannot be detained pursuant to 18 U.S.C. § 3142 (f)(1)(E) because the Government’s allegation Mr. Schaffer simply possessed bear spray does not support a finding his case involved a dangerous weapon. The Government cannot establish a can of bear spray is dangerous weapon when it is simply possessed.

Schaffer’s arrest warrant affidavit described him to be “among” a group of “rioters who sprayed” USCP with bear spray, but didn’t say he personally had used the bear spray to assault the cops, nor did it charge him with doing so.

SCHAFFER was among the rioters who sprayed United States Capitol Police officers with “bear spray,” a form of capsaicin pepper spray sold by many outdoors retailers, as part of their efforts to push the officers back inside the Capitol and breach the Capitol Building themselves.

According to this filing, however, Schaffer’s lawyers conceded during a closed session that he could be charged, presumably including assault for spraying the bear spray, right away.

The parties agree that maintaining the current detention posture, as well as the government forestalling return of a grand jury indictment against the defendant1 , are necessary at this stage to facilitate good-faith plea negotiations.

1 As acknowledged by the defense during the sealed portion of the April 2, 2021 status hearing, the government is in a position to rapidly obtain an indictment against the defendant should plea negotiations fail.

But the filing also suggests that the grand jury may be posing another bottleneck to this process.

Additional time may also be necessary in the event plea conditions require completion of certain requirements before entering into a formal agreement before the court, such as the defendant testifying before the grand jury.

That is, if and when a plea deal is agreed, they still may require Schaffer to provide any testimony to the grand jury before they finalize the plea and release him.

As noted, the unintentional release of this filing may undermine that process from the start. But it least it provides some clarity on how this process is working for Schaffer and others.

Update: Baked Alaska (real name Anthime Gionet) is another person in whose case the government got a consent motion to delay further proceedings. I’m less confident this would involve a cooperation agreement — it may be a way to forestall questions about whether he is media.

Politico Claims It Embarrasses Joe Biden that Non-Violent Civil Disobedience Merits Little or No Jail Time

Last week, Politico reported as news that non-violent January 6 trespassers might get little to no jail time which — it further claimed — might embarrass the Biden Administration.

Many Capitol rioters unlikely to serve jail time

The cases could embarrass the Biden administration, which has portrayed the Jan. 6 siege as a dire threat to democracy.

I have tremendous respect for the reporters involved, Josh Gerstein and Kyle Cheney. Yet the fact that experienced DOJ beat reporters could claim, as news, that non-violent civil disobedience might get no jail time made me really rethink the reporting on January 6, including my own. It’s crazier still that reporters might claim — generally, or in this situation — that a Democratic President might be embarrassed by DOJ treating civil disobedience as a misdemeanor offense.

In fact, Gerstein and Cheney are reporting on a subset of all the January 6 defendants, fewer than 60 of the 230 who had been formally charged by the time they wrote this, which they nevertheless describe as “many” of them.

A POLITICO analysis of the Capitol riot-related cases shows that almost a quarter of the more than 230 defendants formally and publicly charged so far face only misdemeanors. Dozens of those arrested are awaiting formal charges, even as new cases are being unsealed nearly every day.

Then, four paragraphs later, Politico explains why (they say) this might embarrass the Biden Administration: because both Biden himself and Merrick Garland called the larger event — in which 1,000 people, including 200 for assault and 100 for roles in a militia conspiracy, many still at large, must now be suspects — as a heinous attack.

The prospect of dozens of Jan. 6 rioters cutting deals for minor sentences could be hard to explain for the Biden administration, which has characterized the Capitol Hill mob as a uniquely dangerous threat. Before assuming office, Biden said the rioters’ attempt to overturn the election results by force “borders on sedition”; Attorney General Merrick Garland has called the prosecutions his top early priority, describing the storming of Congress as “a heinous attack that sought to disrupt a cornerstone of our democracy, the peaceful transfer of power to a newly elected government.”

Nowhere in the article do they provide any evidence that the assault on the Capitol wasn’t a heinous attack.

They base their claim that Biden might be embarrassed on expectations that DOJ prosecutors set, without noting that the first charges were filed before Biden was inaugurated and long before Garland was confirmed.

Justice Department prosecutors sent expectations sky-high in early statements and court filings, describing elaborate plots to murder lawmakers — descriptions prosecutors have tempered as new details emerged.

Jacob “QAnon Shaman” Chansley was arrested on January 8 and indicted on January 11. Eric “Zip Tie Guy” Munchel was arrested on January 10 and indicted, with his mother, on February 12. Thomas Caldwell was arrested on January 19 and indicted along with Oath Keepers Jessica Watkins and Donovan Crowl on January 27. They (including Caldwell but not Watkins and Crowl) are the main defendants, of more than 350, about whom prosecutors can fairly be said to have tempered “sky-high” expectations. Their arrests and that expectation-setting happened under Jeffrey Rosen and Michael Sherwin, not under Biden and definitely not under Merrick Garland (under whom DOJ referred Sherwin to OPR for investigation after he did some expectation-setting on 60 Minutes). Even still, for all four (as well as other edge cases about whom the press set high expectations, like Riley June Williams), the investigation remains ongoing and there are reasons, including ties to the militia conspiracies, to believe there was some basis for the original suspicions about these people.

Likewise, the decision to arrest first and investigate later, a decision that led to the flood of arrests before prosecutors really knew who had done the most egregious things during the attack, also occurred under the prior Administration.

Indeed, under Garland (though not necessarily because of Garland or the departure of Sherwin), DOJ seems to have focused more of their ongoing misdemeanor arrests on suspects who might have video footage of interest to prosecutors or defense attorneys, with far more of a focus in recent weeks on arresting assault and militia suspects. And one of the reasons for the delays described in the story is that after Garland came in, DOJ asked for 60 days to catch up on discovery. We may yet learn that he and his subordinates decided to change the “arrest first, investigate later” approach adopted before he came in.

Sure, the press has claimed that the government has backed off some of its claims in the militia conspiracies. They did so, for example, when prosecutors backed off certain claims solely for the purpose of an Ethan Nordean detention hearing that, filings submitted weeks later suggested, may have been an effort to protect a pending conspiracy indictment and, probably, a cooperating witness. They’ve done so with the Oath Keepers, even though recent developments suggest even Jessica Watkins’ lawyer may now understand her role in what appears to be a larger conspiracy coordinated in Signal leadership chats is more damning than Watkins originally claimed. If anything, the Oath Keeper and Proud Boy conspiracies may be more sophisticated tactically than originally claimed, and that’s before any explanation about things like who paid for vans of Proud Boys to travel from FL and what happened at twin events in DC and Florida in December, in which conspirators (and key Trump figures) played central roles. That’s also while the person who laid a pipe bomb the night before the the attack remains at large.

To further back its claim that Biden might be embarrassed, Politico implies that all the plea deals expected in weeks ahead will be misdemeanor pleas without jail time, which will be “awkward” for DOJ to defend.

Prosecutors have signaled that plea offers for some defendants will be coming within days and have readily acknowledged that some of the cases are less complicated to resolve than others.

“I think we can work out a non-trial disposition in this case,” Assistant U.S. Attorney Emory Cole told Judge Dabney Friedrich last week in the case of Kevin Loftus, who was charged with unlawful presence and disrupting official business at the Capitol, among other offenses that have become the boilerplate set lodged against anyone who walked into the building that day without authorization.

The Justice Department will soon be in the awkward position of having to defend such deals, even as trials and lengthy sentences for those facing more serious charges could be a year or more away. [my emphasis]

Politico makes this claim even though at least some of the expected pleas may be cooperation agreements. For example, Ryan Samsel — who breached the west side of the Capitol in coordination with Proud Boys Dominic Pezzola and William Pepe, knocking out a cop along the way — asked for a continuance to discuss a plea. One of the main Oath Keeper prosecutors, Ahmed Baset, asked for a continuance before indicting Oath Keeper associate Jon Schaffer, who was among the worst treated defendants and who agreed to the continuance in spite of remaining in pre-trial detention. Kash Kelly, currently charged with trespassing but also someone raised in discussions between Proud Boys affiliate James Sullivan and Rudy Giuliani, got a continuance to discuss a plea. Bryan Betancur, a Proud Boy who got jailed for a probation violation after he lied to his probation officer to attend the event, also got a continuance to discuss a plea to resolve his trespassing charges. The aforementioned Riley Williams, who was charged with obstructing the vote count and stealing a laptop from Nancy Pelosi, was filmed directing movement inside the Capitol, and has ties with Nick Fuentes, also got a continuance to discuss pleading before indictment. All five of these people likely have information that would be of use to prosecutors. All could limit their prison time (which would likely be significant for Samsel, who is accused of assault, played a key role in the insurrection, and has a criminal record) by cooperating with prosecutors. If any of these people sign plea deals — especially Samsel — it will likely provide new insight into how the conspiracy worked. Even with a plea deal, Samsel may still face a stiff sentence.

In other places, Politico conflates the discussions about the fate of misdemeanor defendants with discussions about detention (which prosecutors have only requested with a few accused trespassers), discussions about discovery, and Speedy Trial, all different things, many more urgent issues for misdemeanor defendants not included among those the story is purportedly about.

After I went on a rant about this story on Twitter, Gerstein defended the story by saying that people (none of whom were quoted in the story) seem to be surprised.

I agree with Gerstein that people have certain expectations. But that was clear before the end end of January. The record laid out here shows that such expectations did not come from Garland or Biden. Even Sherwin, with his totally inappropriate 60 Minutes interview, also explained from the start that DOJ was arresting the low hanging fruit at first while further investigating more serious suspects.

The fault, instead, lies with journalists, myself and these Politico journalists included, for not consistently and repeatedly explaining the various different roles people played on January 6, including that there were a number — though currently a shrinking fraction of the total set of defendants — who neither pre-meditated any effort to stop the vote count nor assaulted cops. I have tried to engage in this nuance (I included a list of such posts below), but given the sheer amount of court filings, much of the focus is currently on the militia conspiracies, suggesting a gravity that the MAGA tourists don’t merit. But in this article, rather than simply laying out the full range of defendants, describing how the MAGA Tourists played a key role in the success of the more serious conspirators (explicitly so for the Proud Boys, who talked about getting “normies” to do stuff they otherwise wouldn’t have done), describing how violence spread among participants and often as not among people who aren’t militia members, this Politico piece further distorts the record, not least by using this subset of “MAGA Tourists” — calling them “many” even though they represent just a quarter of defendants who have been formally charged — to stand in for the larger investigation, while minimizing the import of those charged with obstruction (likening that role to a CodePink interruption of a congressional hearing) because, evidence shows, they premeditated an attempt to undermine the election outcome.

So even while the piece describes how both judges and prosecutors understand that the mob as a whole posed a grave threat while some individual defendants did no more than provide cover for the more dangerous defendants (and many of the DC judges presiding over these cases have made such comments), Politico claims that there’s some embarrassment to this, including some kind of political risk for Biden.

Judges are also attempting to reckon with separating the individual actions of rioters from the collective threat of the mob, which they have noted helped inspire and provide cover for violent assaults, property destruction and increased the overall terror and danger of the assorted crimes committed.

That reckoning is coming sooner rather than later, lawyers say, putting prosecutors in the position of wrist-slapping many participants in the riot despite framing the crimes as part of an insurrection that presented a grave threat to American democracy.

If the MAGA tourists provided cover and helped overwhelm cops, thereby serving a useful role in the plans of those who had a more nefarious and organized purpose, then that’s the story that should be told, not some kind of both-sides political spin, particularly one that pits Biden’s claims about the seriousness of this on the footing as Trump’s outright lies about it. In spite of the overwhelming number of defendants, the record shows, DOJ is still assessing each one on the merits, which is what should happen. Declaring that politically embarrassing is an abdication of fair reporting on the legal system.

I believe DOJ has gotten it wrong, in both directions, in some cases. In addition to those listed above, I think DOJ has gone too harshly on some people who have openly supported far right, even Nazi views. But I also think DOJ has only considered whether militia members were members of premeditated conspiracies, focusing less on localized activist networks that have been implicated in violent (often anti-mask) pro-Trump actions in the past, taken on leadership roles at the riot, and engaged in ongoing communications about plans to shut down the vote, just like militias did. I think DOJ hasn’t come to grips with the organizational import of QAnon even while arguing that individual adherents of the cult must be jailed because they are delusional. And until DOJ decides how it will treat Trump’s actions and those of some close associates — something they likely cannot do without more investigation and cooperation deals from key participants — parts of this investigation will remain unsettled.

There are definitely things DOJ has reason to be embarrassed about: Gerstein has written more than any journalist about the unforgivable delays in moving defendants around the country and getting them arraigned. This piece also focuses on one of the handful of misdemeanor defendants who has been detained since being charged. While I understand the complexity of an investigation in which so much of the evidence — both exculpatory and inculpatory — remains in the hands of participants, defendants have a right to complain about the delay, especially those in detention. Defendants — particularly those in detention — are entitled to a Speedy Trial, even if DOJ moved too quickly to arrest them. While many of these things were exacerbated by COVID, they also largely arise from a decision to arrest first on those trespassing charges, and investigate later (which also has led to more defendants being charged with obstruction after the fact).

But none of those things have to do with Biden or Garland’s views about the investigation, or even the prosecutors who made decisions that created some of these problems in the first place (in part, probably, to avoid their own embarrassment at missing all warning signs, in part because they hadn’t investigated these threats aggressively enough and so had to make mass arrests to mitigate any immediate follow-on threats).

In short, this piece is an (uncharacteristic) mess, shoehorning complexity into a simplistic claim of political conflict, one inventing embarrassment out of thin air for Biden. If Politico has evidence that this wasn’t an unprecedented disruption to Congress, one that could have had a far worse outcome, including a threat to our democracy, or that this right wing violence is less of a threat than FBI says it is, by all means they should present that. At the same time, they can reveal the identity of the pipe bomber and the role (if any) that person played in the plot, without which no one can claim to actually know how serious this was.

Until then, they and all experienced DOJ beat reporters would be far better off by simply laying out a description of the different kinds of defendants we’re seeing, the different roles they played in disrupting the vote count and assaulting or undermining law enforcement, and explaining how those defendants are the same or different from defendants that have gone before them, on a spectrum of severity that stretches from CodePink to ISIS terrorists.

If people are going to be surprised when the subset of participants in January 6 who engaged in non-violent civil disobedience are treated as misdemeanor offenders, it’s not Joe Biden’s fault. It is a failure of journalism, my own included, for not making that more clear starting in January and reiterating it since then.

Update: Meanwhile, Jon Schaffer just agreed to two more weeks in jail.

Update: Corrected Munchel’s arrest date, which was January 10.

Update: Christopher Kelly (no relation to Kash) is another person with a consent continuance to discuss what would almost certainly be a cooperation agreement. He drove to and from the insurrection with some Proud Boys.


Posts attempting to contextualize the investigation

Here are some past attempts I’ve made at explaining how the parts of the January 6 investigation fit together:

DOJ Arresting Their Way to Clarity on Joe Biggs’ Two Breaches of the Capitol

The Proud Boys Leadership conspiracy indictment describes that Joe Biggs breached the Capitol twice.

He entered first on the west side through a door opened after Dominic Pezzola broke through an adjacent window with a riot shield.

At 2:14 p.m., BIGGS entered the Capitol building through a door on the northwest side. The door was opened after a Proud Boys member, Dominic Pezzola, charged elsewhere, used a riot shield at 2:13 p.m. to break window allowed rioters to enter the building and force open an adjacent door from the inside. BIGGS and Proud Boys members Gilbert Garcia, William Pepe, and Joshua Pruitt, each of whom are charged elsewhere, entered the same door within two minutes of its opening. At 2:19 p.m., a member of the Boots on the Ground channel posted, “We just stormed the capitol.”

Then, Biggs left the building, walked around it, took a selfie from the east side, then forced his way in the east side and headed from there to the Senate.

BIGGS subsequently exited the Capitol, and BIGGS and several Proud Boys posed for a picture at the top of the steps on the east side of the Capitol.

Thirty minutes after first entering the Capitol on the west side, BIGGS and two other members of the Proud boys, among others, forcibly re-entered the Capitol through the Columbus Doors on the east side of the Capitol, pushing past at least one law enforcement officer and entering the Capitol directly in front of a group of individuals affiliated with the Oath Keepers. [my emphasis]

Understanding Biggs’ actions — including whether they were coordinated with the Oath Keepers who entered at virtually the same time as him (including fellow Floridian Kelly Meggs, who had just “organized an alliance” with the Proud Boys in December) — is crucial to understanding the insurrection as a whole.

That’s particularly true given that Biggs re-entered the Capitol and headed to the Senate, where Mike Pence had only recently been evacuated. That’s also true given how Biggs’ actions coincide so neatly with those of the Oath Keepers.

At the moment Pezzola breaks the Capitol window with a shield, Person Ten contacts Joshua James (from Alabama but seemingly affiliated with the Florida Oath Keepers). At the moment Biggs enters the Capitol, someone on the Oath Keepers’ Signal channel informed the list that “The[y] have taken ground at the capital [sic]. We need to regroup any members who are not on mission.” This is a quicker response than the Proud Boys Boots on the Ground channel itself had to the initial breach.

And that’s what happened. Both the Oath Keepers and the Proud Boys regrouped and opened a new front on the assault on the Capitol.

Rhodes called Kelly Meggs. Person Ten called James. Then Rhodes had overlapping phone calls with Person Ten and Meggs. Around that time, The Stack started making their way to an entry of the Capitol on the other side of the building from where they were. And James and Minuta hopped in some golf carts and rushed to the Capitol (I’m not sure from where). During the period when The Stack, commanded by Kelly Meggs, was making their way to the Capitol and Biggs was walking around rather than through it, Roberto Minuta arrived and started harassing the cops guarding the door through which Biggs and The Stack would shortly enter, perhaps ensuring that the cops remained at their post rather than reinforcing the east side.

I had speculated here that Proud Boys in the initial breach — most notably former Army Captain Gabriel Garcia — were live streaming with the intent of providing tactical information to people located remotely who were performing a command and control function.

If you were following Garcia’s livestreams in real time — even from a remote location — you would have visibility on what was going on inside almost immediately after the first group of the Proud Boys breached the Capitol.

In a later livestream, Garcia narrated what happened in the minutes after the Proud Boys had breached the Capitol.

GARCIA states, “We just went ahead and stormed the Capitol. It’s about to get ugly.” Around him, a large crowd chants, “Our house!”

Then, as a standoff with some cops ensued, Garcia filmed himself describing, tactically, what was happening, and also making suggestions to escalate violence that were heeded by those around him.

At minute 1:34, a man tries to run through the line of USCP officers. The officers respond with force, which prompts GARCIA to shout, “You fucking traitors! You fucking traitors! Fuck you!” As the USCP officers try to maintain positive control of the man that just rushed the police line, GARCIA yells, “grab him!” seemingly instructing the individuals around him to retrieve the man from USCP officers. GARCIA is holding a large American flag, which he drops into the skirmish in an apparent attempt to assist the individuals who are struggling with the USCP officers.

USCP officers maintain control of the line, holding out their arms to keep the crowd from advancing. At least one USCP officer deploys an asp. GARCIA turns the camera on himself and offers tactical observations regarding the standoff. [my emphasis]

Garcia’s livestream was such that you would obtain crowd size estimates from it, as well as specific names of officers on the front line, as well as instructions to “keep ’em coming,” seemingly asking for more bodies for this confrontation.

At minute 3:26, GARCIA, who is still in extremely close proximity to the USCP officer line again yells, “Fucking traitors!” He then joins the crowd chanting “Our house!” At minute 3:38, GARCIA states, “You ain’t stopping a million of us.” He then turns the camera to the crowd behind him and says, “Keep ‘em coming. Keep ‘em coming. Storm this shit.” GARCIA chants with the crowd, “USA!”

Soon after, GARCIA stops chanting and begins speaking off camera with someone near him. At minute 4:28, GARCIA says, “do you want water?” Though unclear, GARCIA seems to be asking the person with whom he is speaking. GARCIA is so close to an officer that, as the camera shifts, the only images captured are those of the officer’s chest and badge. [my emphasis]

Remarkably, Garcia filmed himself successfully ordering the rioters to hold the line — which they do — and then filmed them charging the police.

GARCIA yells, “Back up! Hold the line!” Shortly thereafter, the crowd begins advancing, breaching the USCP officer line. GARCIA says, “Stop pushing.” The last moments captured in the video are of the crowd rushing the USCP officers.

A filing arguing for detention for Ethan Nordean confirms that Proud Boys located offsite were monitoring the livestream and providing instructions.

When the Defendant, his co-Defendants, and the Proud Boys under the Defendant’s command did, in fact, storm the Capitol grounds, messages on Telegram immediately reflected the event. PERSON-2 announced, “Storming the capital building right now!!” and then “Get there.” [Un-indicted co-conspirator-1] immediately followed by posting the message, “Storming the capital building right now!!” four consecutive times.6 These messages reflect that the men involved in the planning understood that the plan included storming the Capitol grounds. This shared understanding of the plan is further reflected in co-Defendant Biggs’ real-time descriptions that “we’ve just taken the Capitol” and “we just stormed the fucking Capitol.”

6 UCC-1 and PERSON-2 are not believed to have been present on the Capitol grounds, but rather indicated that they were monitoring events remotely using livestreams and other methods.*

So at least on the Proud Boys side, there was this kind of command and control.

And the government has been arresting their way to some clarity on this point.

Sometime before March 1, the government got access to both the leadership Telegram channel the Proud Boys used to coordinate the insurrection and the “Boots on the Ground” channel, meaning they’ve got monikers for around 35 active Proud Boy participants in the insurrection who have not yet been arrested. In the weeks since the Biggs and Nordean conspiracy indictment disclosed that the government had these chats, the government has arrested several people with ties to one or another of these men (though without saying whether they identified them from the Boots on the Ground channel or whether they arrested them at this time for investigative reasons).

Two of these men just happen to be two of Joe Biggs’ co-travelers the day of the insurrection, Paul Rae and Arthur Jackman, both also from Florida. The complaints for both are very similar, possibly written by the same FBI agent. Both complaints go through the greatest hits of the Proud Boy actions that day, listing all the conspiracies already charged. While the affidavits include the testimony of acquaintances of both men (in Jackman’s case, obtained after a January 19 interview with Jackman himself, meaning that testimony couldn’t be the lead via which they IDed him), the affidavits also focus on their entries with Joe Biggs, with Rae entering the west Capitol door right next to Biggs.

And Jackman walking up steps with his hand on Biggs’ shoulder.

Each affidavit includes the photo obtained from warrants served on Biggs showing the selfie mentioned in the Leader indictment (bolded above).

In Rae’s affidavit, they’ve redacted out all but his face and Biggs’.

They use the same approach in Jackman’s affidavit, redacting the others (including Rae, who had already been arrested).

If I were one of the two other guys in this picture, I’d be arranging legal representation right now.

The affidavits show both men entering the Capitol on the east side, along with Biggs. As he did on the west side, Rae walked in beside Biggs (you can see Jackman just ahead of Rae in this picture).

And as he did elsewhere in the Capitol, Jackman walked with his hand on Biggs’ shoulder.

Jackman’s affidavit shows him in the Senate (where we know Biggs also went).

The government arrested Rae on March 24. They arrested Jackman on March 30. Again, I’d be pretty nervous if I were one of the other two guys.

Because if the government can show that this second breach by Biggs was coordinated with the Oath Keepers, with The Stack led by the guy who arranged an alliance in December, Kelly Meggs, it will make these five separate conspiracies mighty cozy (in any case, the government is already starting to refer to the multiple Proud Boys conspiracies as one).

There’s at least one other action on which both militias may have coordinated: aborted efforts to launch a second wave after 4PM, something that Rudy Giuliani seems to have had insight into.

But for now, the government seems pretty focused on arresting their way to clarity about why Joe Biggs breached the Capitol, then walked outside and around it, and then breached it again.


* I had suggested in this post that UCC-1 might be Nicholas Ochs. But that’s not possible, because the government knows he was onsite. Moreover, the government is now treating defendants in one of the Proud Boys conspiracy indictments (most notably Dominic Pezzola) as co-conspirators with those charged in other conspiracy indictments (including Nordean), so Ochs would be an indicted co-conspirator. Another — far more intriguing possibility — is that it is James Sullivan (who might have a leadership role in Utah’s Proud Boys), who was in contact with Rudy Giuliani about the insurrection, and who inexplicably hasn’t been arrested. Certainly, Rudy seems to have had the information available on those chats in real time.

Were Proud Boys Using Livestream for Command and Control … and Other Operational Questions

Mapping out both the four charged conspiracy indictments against the Proud Boys as well as some — not all — of those with links to the groups who have not been included in the conspiracy indictments, has raised specific questions for me about how the Proud Boys operated that day and how they’re being prosecuted.

Were the Proud Boys using livestreams for command and control?

I’ve had this question more generally: whether someone offsite from the Capitol was providing Command and Control guidance for the assault on the Capitol. But the new “Leadership conspiracy” indictment against Ethan Nordean and Joe Biggs mentions that Gabriel Garcia — along with Joshua Pruitt — were among those who charged on the Capitol in the first wave, along with Dominic Pezzola.

That, by itself, makes me wonder if DOJ is going to expand that “Front Door” conspiracy to include Garcia and Pruitt.

But the content of Garcia’s charging document raises more questions for me.

Garcia is a former Army Captain, so one of the higher ranking former veterans among the Proud Boy defendants. He may have been IDed by what we now know was a request that Facebook provide the IDs associated with all the livestream video uploaded during the insurrection from inside the Capitol (indeed, it was Garcia’s complaint that first led me to suspect the FBI had used one).

Based on information provided by Facebook, Facebook User ID (“UID”) 100000183142825 has a Facebook account under the name “GABRIEL GARCIA.” GARCIA uploaded to his Facebook account at least two “Facebook live” videos taken inside of the Capitol building on January 6, 2021. Additionally, GARCIA uploaded at least one video before entering the Capitol building.

[snip]

In the video, GARCIA is walking east on Constitution Avenue towards the Capitol building with a large group of people. 2

Approximately 20 minutes later, at 19:19:08 UTC, or 02:19pm, GARCIA uploaded to Facebook a video filmed from inside the Capitol building:

If you were following Garcia’s livestreams in real time — even from a remote location — you would have visibility on what was going on inside almost immediately after the first group of the Proud Boys breached the Capitol.

In a later livestream, Garcia narrated what happened in the minutes after the Proud Boys had breached the Capitol.

GARCIA states, “We just went ahead and stormed the Capitol. It’s about to get ugly.” Around him, a large crowd chants, “Our house!”

Then, as a standoff with some cops ensued, Garcia filmed himself describing, tactically, what was happening, and also making suggestions to escalate violence that were heeded by those around him.

At minute 1:34, a man tries to run through the line of USCP officers. The officers respond with force, which prompts GARCIA to shout, “You fucking traitors! You fucking traitors! Fuck you!” As the USCP officers try to maintain positive control of the man that just rushed the police line, GARCIA yells, “grab him!” seemingly instructing the individuals around him to retrieve the man from USCP officers. GARCIA is holding a large American flag, which he drops into the skirmish in an apparent attempt to assist the individuals who are struggling with the USCP officers.

USCP officers maintain control of the line, holding out their arms to keep the crowd from advancing. At least one USCP officer deploys an asp. GARCIA turns the camera on himself and offers tactical observations regarding the standoff. [my emphasis]

Garcia’s livestream was such that you would obtain crowd size estimates from it, as well as specific names of officers on the front line, as well as instructions to “keep ’em coming,” seemingly asking for more bodies for this confrontation.

At minute 3:26, GARCIA, who is still in extremely close proximity to the USCP officer line again yells, “Fucking traitors!” He then joins the crowd chanting “Our house!” At minute 3:38, GARCIA states, “You ain’t stopping a million of us.” He then turns the camera to the crowd behind him and says, “Keep ‘em coming. Keep ‘em coming. Storm this shit.” GARCIA chants with the crowd, “USA!”

Soon after, GARCIA stops chanting and begins speaking off camera with someone near him. At minute 4:28, GARCIA says, “do you want water?” Though unclear, GARCIA seems to be asking the person with whom he is speaking. GARCIA is so close to an officer that, as the camera shifts, the only images captured are those of the officer’s chest and badge. [my emphasis]

Remarkably, Garcia filmed himself successfully ordering the rioters to hold the line — which they do — and then filmed them charging the police.

GARCIA yells, “Back up! Hold the line!” Shortly thereafter, the crowd begins advancing, breaching the USCP officer line. GARCIA says, “Stop pushing.” The last moments captured in the video are of the crowd rushing the USCP officers.

In the arrest affidavit for the Kansas City Proud Boys, a footnote describes how Nicholas Ochs and Nicholas DeCarlo were similarly filming what was going on as the Kansas City Proud Boys successfully thwarted police efforts to shut down access to the tunnels.

Proud Boys Nicholas Ochs and Nicholas DeCarlo can be seen in the background recording the unlawful conduct with their phones and other devices.

While their arrest documents don’t show the two livestreaming on Facebook (and Ochs would later complain about the connectivity inside the Capitol), if they were livestreaming somewhere, it would mean live video of tactically important moments from the siege would have been available to someone outside the Capitol or even someone watching more remotely, from a hotel room or even Florida.

Certainly, Garcia’s stream would be operationally useful if someone were providing command and control remotely. Was someone?

Does DOJ now have a list of all the teams from the Telegram channels?

The latest detention motions for Ethan Nordean and Joe Biggs (as well as the Leadership Conspiracy indictment) describe the process of divvying up the Proud Boys in attendance into teams, which process involves an unindicted co-conspirator who presumably is cooperating.

January 4, 8:20 PM, unindicted co-conspirator: “We had originally planned on breaking the guys into teams. Let’s start divying them up and getting baofeng channels picked out.”

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

January 5, 9:17 to 9:20 PM, Biggs: “We just had a meeting woth [sic] a lot of guys. Info should be coming out” … “I was able to rally everyone here together who came where I said” … “We have a plan. I’m with [Nordean]. [my emphasis]

The replication of these Telegram chats, from two different channels, stops at 10AM on January 6 (they presumably continued after that time, but we know that Nordean’s phone was turned off during the day).

That suggests DOJ is likely to know what the various teams were and who led them. There were 60 people on the participants’ Telegram channel from that day, which means they may have a lot more teams to indict.

Who paid for the vans from Florida to DC?

The detention memo for Christopher Worrell, a Proud Boy who sprayed law enforcement with pepper spray, reveals that he and his girlfriend traveled to DC on vans paid for by someone else and stayed in hotels also paid for by someone else.

According to Worrell’s live-in girlfriend, who was interviewed by law enforcement on March 12, 2021, she and Worrell traveled to Washington D.C. in the days leading up to January 6, 2021, with other Proud Boys in vans paid for by another individual. Their hotel rooms were also paid for by another individual.

Particularly given that these vans were from Florida — where Tarrio, Biggs, and the key figures from the Oath Keepers all hung out (and hung out with Roger Stone) — the person that paid for these things may be on the hook for any conspiracy ultimately charged as a whole.

What kind of cooperation will DOJ get from the Front Door co-conspirators?

As of right now, just Dominic Pezzola and William Pepe are charged in what I call the “Front Door” conspiracy — the group of people who first breached the Capitol on the west side of the building. As noted above, DOJ itself identified Garcia and Pruitt to have some tie to this group (which makes me wonder if an expanded conspiracy obtained Friday will be released before I’m done with this post!).

But DOJ has not included Robert Gieswein or Ryan Samsel, who were also part of this initial assault. Neither is described as a Proud Boy in their charging documents, but both were with the Proud Boys before the operation. Both men are also on the hook for fairly serious assault charges (a cop that Samsel pushed over got a concussion and Gieswein brought a bat he used). Samsel has not been indicted and the joint request for a continuance (filed way back on February 17) explaining why explicitly states the two sides are seeking a “resolution,” (that is, a plea deal).

The government and counsel for the defendant have conferred, and are continuing to communicate in an effort to resolve this matter.

As to Gieswein, he has been indicted. But his docket has none of the proceedings that cases moving towards trial would have, such as a motion for a protective order (though given the delays on PACER postings that doesn’t definitely mean anything). And well after his magistrate docket in Colorado was closed, he submitted several sealed filings to it.

If I were someone that the government had dead to rights with not just brutal assault, but assault that was tactically important to the success of the entire operation, particularly if I had a criminal record that would add to prison time at sentencing (as Samsel does), I would sure want to help prosecutors assign some responsibility for those assaults to those who guided my actions on that day. Thus far, assault is not included in any of the conspiracy indictments (it is individually charged against Pezzola and a threatened assault was charged against William Chrestman), but if it were, it would raise the stakes of them significantly.

I’m also interested in the case of Chris Kelly. He’s not a Proud Boy. But in advance of his trip, he made it public that he was traveling to DC from NY with some members of the Proud Boys.

I’ll be with ex NYPD and some proud boys. This will be the most historic event of my life.

Kelly also made it clear the NYPD officer was his brother.

The Kelly Facebook Account also shows on January 2, 2021 KELLY messaged another user and stated, “Me and [NAME] plus a couple of others are headed down the 5th and staying 2 nights. Ill be frequency 462.662 on a ham radio if cell service goes down.” Public records databases also revealed Christopher M Kelly has a brother (“S1”) of New City, New York with the same first name used in the above statement. New York City Police Department records confirm S1 is a retired police officer. Based on this statement, and the statement above about traveling with “ex NYPD and some proud boys” your affiant believes that this comment indicated that KELLY planned to travel to Washington, D.C. with S1.

We still don’t know who a cooperating witness against Pezzola and Pepe is, who described to the FBI, almost immediately, a conversation promising that the Proud Boys would have killed Mike Pence had they found him that day. Pezzola had suspected that it was the guy who first recruited him into the Proud Boys and further speculated the conversation reported by the witness occurred on the trip home (which would help to explain how Pepe, also from NY, got included in conspiracy charges with Pezzola). That is, Pezzola believed that the cooperating witness must have been in a car with him from DC to NY.

But the government revealed that they are not prosecuting this cooperating witness.

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

Kelly can’t be that witness. He had already been charged at the time. But unless I missed his arrest, Kelly’s brother might be. And if his brother were cooperating (which would require honest testimony about what brother Chris had done), then it would raise the chances that Chris Kelly would be too. And why not? If I had traveled to DC with the people who initiated the entire insurrection, I’d want to make damned clear that I wasn’t part of that. Like Samsel, Kelly has not been indicted (publicly) yet.

For some time, the government had been saying they weren’t prepared to make plea deals yet. The inclusion of Co-Conspirator 1 in the Leadership indictment strongly suggests that’s done. And if Samsel and the government were discussing a plea over a month ago, you can be sure he has already proffered testimony to the government.

So the government likely has some cooperators in the “Front Door” conspiracy. The question is only, how much?