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Forty Feet: Trump Sicced a Murder Weapon on Mike Pence

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

This was not new news yesterday though.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

[snip]

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

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

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

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

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

[snip]

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Enrique Tarrio Gets His Chance to Fit In or Fuck Off

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

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

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

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

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

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

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

I’ll write more in a bit.

The Disappearing Willard Hotel and the Accused Seditionists’ Other Interlocutors

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Poof! Where’s Roger?

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

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

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

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

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

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

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

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

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

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

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

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

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

Update: Corrected McFadden’s first name.

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

Chekhov’s Riot Shield: How Proud Boy Matthew Greene’s Cooperation Helps Prove the Conspiracy

In a chat among the Central New York chapter of the Proud Boys on January 17, according to a June detention motion, Matthew Greene stated that, “we must stand together now or end up in the gulag separately.” Yesterday, Greene entered into a cooperation plea deal that may accelerate his transfer into a Federal prison and even contemplates witness protection.

The press has made much of Greene’s cooperation deal — and I agree that the first public cooperation agreement from a Proud Boy is newsworthy. But I think the press is overstating the singular importance of Greene’s plea deal, for two reasons.

Greene is the first (public) cooperator but there are probably more senior Proud Boys close to flipping

First, there is very good reason to believe there are other non-public Proud Boy cooperators (or people, like Greene, who have been discussing a plea deal for months but who have not yet publicly pled guilty). Tim Kelly, the Judge presiding over the most Proud Boy cases, only just revealed that he will uphold DOJ’s application of the obstruction charge (though he has yet to issue his opinion), which is likely to accelerate the public entry of plea deals from other Proud Boys close to flipping. In other words, Greene is the only cooperator we can point to docketed proof of, but there are others, almost certainly others who are better situated to expose the full contours of the senior Proud Boys’ plans for the Capitol.

The other reason Greene’s welcome cooperation is being overstated is because — as Greene’s statement of offense makes clear — the Proud Boys used a cell organization on January 6 and Greene was, by his own telling, just a “first-degree member of the Central New York chapter of the Proud Boys,” making him one of the “least senior members.” But as I show below, that also means his cooperation is a good way of showing that a low level Proud Boy was aware of and following the instructions of the most senior Proud Boys.

To be clear: Greene’s statement of offense states that it “is not intended to constitute a complete statement of all facts known by Greene.” But the things that he does and appears not to know illustrates how DOJ is either going to need to flip one of the most senior Proud Boys and/or get cooperators from multiple different parts of the network to get a full understanding (and proof beyond a reasonable doubt) to describe all that the Proud Boys did on January 6.

That said, even given what is public, Greene’s cooperation will be useful in the following ways:

  • Confirming intent to obstruct the vote count by intimidating Mike Pence and others
  • Providing first-hand evidence on the “Front Door” conspiracy
  • Tying the Front Door cell to the Leader conspiracy
  • Describing the lead-up to January 6

Confirming intent to obstruct the vote count by intimidating Mike Pence and others

As this post explains, Greene’s intent statement confirms that:

  • The goal that day was to intimidate Mike Pence and members of Congress to get them to help Trump’s cause
  • Trespassing was one way to serve that goal of obstruction because it was more intimidating
  • The damage to the Capitol was a foreseeable consequence of the plan to obstruct the vote count

These three intent statements will be important in prosecuting other Proud Boys — and indeed, other rioters in January 6. They show that even low level Proud Boy participants understood this — and not some bullshit cover story about Antifa — to be the goal.

Providing first-hand evidence on the “Front Door” conspiracy

As a reminder, Greene was indicted, along with Dominic Pezzola and William Pepe, in what I’ve dubbed the “Front Door” conspiracy. The three were indicted together, it appears, because they’re all from NY (though Pepe is from a different chapter of the Proud Boys) and DOJ has a witness who spent time with them after the riot on January 6 who shared that they had said they would have gone after Pelosi or Pence had they found them.

The FBI also spoke to a witness, referred to as W-1 for purposes of this memorandum. W1 stated that Greene was one of a group of individuals who told W-1 about what they did on January 6. According to W-1, members of this group said that anyone they got their hands on they would have killed, including Nancy Pelosi.5 W-1 further stated that members of this group, which included Greene, said that they would have killed [Vice President] Mike Pence if given the chance.

The Front Door conspiracy is utterly critical because the terrorism enhancement hanging over all the other Proud Boys charged with conspiracy goes through the stolen shield with which Pezzola broke a window in the first breach of the Capitol.

While I expect some consolidation among the Proud Boy cases in the near future, DOJ needs this prosecution to succeed because it gives them leverage over the other Proud Boys they’re using to get other conspirators to cooperate.

And Greene’s statement of offense does provide evidence that he and Pezzola and Pepe entered into an agreement to obstruct the vote count and took overt steps, in concert, to make that happen. It describes that Greene:

  • Made hotel reservations with his chapter of the Proud Boys and drove from Syracuse with them — including Pezzola — to DC.
  • Allowed Pepe, who showed up overnight, to sleep on his floor.
  • Programmed the Baofeng radios used by the Central New York Proud Boys (which also means Greene shared a channel with Pezzola and therefore heard what Pezzola was hearing).
  • Eschewed Proud Boys colors.
  • Traveled with Pezzola throughout the day, including through the first toppled barricade to a line of fences, away from there (in what researchers believe was a regrouping effort to wait for more numbers), then up the stairs.
  • Stayed at the same hotel as Pezzola and Pepe after the riot (as demonstrated by security footage from the hotel).

Tying the Front Door cell to the Leader conspiracy

As noted above, in the Proud Boys hierarchy, Greene was just a schlub, a first level Proud Boy just weeks into joining the organization.

But that makes him useful for showing that orders issued by Enrique Tarrio, Joe Biggs, and Ethan Nordean trickled down to him. The order not to wear Proud Boy colors, for example, is one Tarrio and Biggs issued publicly. Greene followed that order.

Similarly, around 9:30PM on January 5, the Leader co-conspirators agreed to set the meetup point on the side of the Washington Monument facing the White House at 10AM. This agreement is part of the proof they had entered into a conspiracy with each other.

The next day, Greene, this schlub from Syracuse, followed these instructions.

On the morning of January 6, 2021, Greene, along with Pezzola, Pepe, and the others he had traveled with from Syracuse, met up at the Washington Monument with members of the Proud Boys from across the country, as instructed by Proud Boys leadership. As also instructed by leadership, neither Greene, Pezzola, Pepe, nor any of the other individuals in their group wore the Proud Boys’ traditional colors of black and yellow.

Greene, Pezzola, and the others they traveled with from Syracuse, then followed the Proud Boys leadership in departing from the Washington Monument and marching on the National Mall towards the U.S. Capitol.

In other words, precisely because someone so low level was obviously following instructions developed in private by the Proud Boys’ top leadership, it ties the Syracuse cell with the Leadership cell in the same conspiracy.

And one remarkable moment of Greene’s testimony demonstrates this particularly well. His statement of offense describes that,

After Pezzola had stolen a riot shield belonging to the U.S. Capitol Police, Greene followed him away from the scene of the robbery, through the crowd, away from the Capitol, and to the back of the West Plaza. During this journey, Pezzola met up and traveled with at least two other individuals, one of whom jointly carried the riot shield with Pezzola.

It appears that Greene did not know — perhaps still does not know — who the person carrying the shield with Pezzola was. It was Charles Donohoe, one of the four people currently charged in the Leader Conspiracy.

This moment is like the Chekhov’s Riot Shield of the entire January 6, the moment where the crucial weapon (in this case, that would inflict the damage to the Capitol window that puts all the co-conspirators on the hook for terrorism enhancements) shows up early in the story as if foretelling where the story will (and in this case, did) go. Greene is a witness to this moment. But by witnessing it this way, with no idea of Donohoe’s seniority, Greene again demonstrates how the actions of low level Proud Boys tie directly up with its top leadership.

And Greene’s experience in DC tied to the most senior Proud Boy, Tarrio. His statement of offense notes that as Greene was setting the Baofeng’s, Pezzola told Greene that Tarrio would stop by to have his own radio programmed as well.

Pezzola told Greene that the National Chairman of the Proud Boys would stop by to have his radio programmed, but the National Chairman did not in fact stop by, nor did Greene program his radio.

This seems to prove that Pezzola was in touch, personally, with Tarrio on that confusing day as the Proud Boys attempted to regroup after Tarrio’s arrest, but not in such close touch that Pezzola knew immediately that Tarrio had moved to Baltimore after his release and stay-away order. It might suggest that Tarrio was on the Baofeng’s that day, in addition to participating in the Telegram chat. If DOJ can prove that, then it makes it a lot easier to charge Tarrio personally.

Describing the lead-up to January 6

As Greene’s statement of offense describes it, he only joined the Proud Boys after the December 12, 2020 MAGA March.

As of January 6, 2021, Greene was a first-degree member of the Central New York chapter of the Proud Boys. He had officially joined the group following a rally that took place in Washington D.C. in December 2020.

A detention filing for Pezzola suggests this was his first Proud Boy event as well.

[D]efendant’s only other “action” as a Proud Boy was that on December 12, 2020, he attended a “Make America Great Again” (MAGA) rally in support of then President Trump. There is no alleged criminal activity by defendant in relation to that event. This occurred shortly after defendant’s introduction to the Proud Boys. Upon information and belief, his only other activity as a Proud Boy was discussing politics over drinks at bars on occasion.

As Greene’s detention memo made clear, Greene met Pezzola in the early days of joining the group, possibly in DC.

The FBI also recovered a photograph of a group of Proud Boys, apparently taken inside a bar, which metadata indicates was taken in December 2020, that includes both Greene and Pezzola.

Greene’s statement of offense describes that he decided to attend January 6 in response to Trump’s call on December 19.

On December 19, 2021, when Greene saw then-President Donald Trump’s tweet referencing a “wild” protest to take place on January 6, 2021, he decided that he would attend the event, and he booked a hotel in Washington, D.C. for January 5-7, 2021.

On December 20, Greene ordered some AR-15 magazines that may cause legal trouble in NY (and was one of the key reasons why Greene was held in pre-trial detention). 

The FBI also located a camouflage tactical vest filled with eight detachable magazines for an AR-15 (Hr’g Ex. 2-4). Each of the eight magazines with loaded with 30 rounds of AR-15 ammunition. Although undersigned counsel does not practice law in the state of New York, I have been informed by a New York State Police officer, who is cross-designated to the FBI’s Joint Terrorism Task Force and participated in the search, that Greene’s possession of the AR-15 and the detachable magazines was illegal under New York state law

FBI’s review of the defendant’s Gmail account as contained on his personal phone that was seized in connection with the January 18 search warrant, revealed that the defendant placed the following orders, among others: (1) six AR-15 magazines, ordered on December 20

Over the following weeks, Greene planned with the other NY State Proud Boys (presumably including Pezzola and, given that this appears to have been state-wide, Pepe).

In advance of January 6, 2021, Greene coordinated with Pezzola and other members of the Proud Boys to make plans to come to Washington, D.C. for the events surrounding January 6. Greene used an encrypted messaging application and was part of planning channel among Proud Boy chapters from New York State whose members planned to come to Washington, D.C.

As this was happening, Pezzola appears to have deepened ties to the national organization. A government response to a Pezzola detention motion shows that Tarrio used an image of Pezzola — labeled “Lords of War” — to advertise for J6 and J20.

I have repeatedly noted that DOJ has remained coy about the role that the December MAGA March and the January 5 events had as crucial networking and planning events to prepare for January 6. But Greene was obviously part of that. Greene, in part because he shows how someone could join up and then play a role that intersected with top leaders of the group, encapsulates that process personally.

And, importantly, he shows how Trump and Tarrio were key motivators in that process.

As a cooperator, Matthew Greene won’t be able to tell prosecutors what top Proud Boys were planning. Nor will he be able to reveal how top Proud Boys networked with Trump’s associates and coordinated a plan for January 6. But he does offer proof that low level Proud Boys were in a conspiracy with the group’s top leadership. And his testimony will make it more likely that others will also cooperate.

On January 17, Greene called for the Proud Boys to stand together. His cooperation with prosecutors will make it more likely that others will “end up in the gulag,” together.

Three Crimes Included in Proud Boy Matthew Greene’s Intent Statement

I’m writing a post on the limits of Matthew Greene’s knowledge of the larger Proud Boy plot on January 6, and therefore the bounds of his value as a cooperator (though his cooperation is really important, not least because it’ll lead others to follow his lead). Before I do so, I wanted to talk about the long motive paragraph included in his statement of offense.

He attested under oath yesterday that his intent on January 6 was to cause legislators and Mike Pence to act differently — implicitly, to either not certify any winner of the electoral college or name Trump the winner.

Greene’s intent in conspiring with others to unlawfully enter the restricted area of the Capitol grounds was to send a message to legislators and Vice President Pence. Greene knew the lawmakers and the Vice President were inside the Capitol building conducting the certification of the Electoral College Vote at the time the riot occurred. Green hoped that his actions and those of his co-conspirators would cause legislators and the Vice President to act differently during the course of the certification of the Electoral College Vote than they would have otherwise. Greene believed that by unlawfully entering the Capitol grounds, he and other rioters outside the building would send a stronger message to lawmakers and the Vice President, than if Green and others had stayed outside the restricted area. Green knew that the Capitol grounds he intended to enter were lawfully guarded by U.S. Capitol Police at the time he entered. Greene agrees that a reasonable foreseeable outcome, based on all the circumstances, taking into account the actions of other individuals, including Pezzola and Pepe, of his joining with members of the Proud Boys, to charge up the pedestrian walkway, into the West Plaza, and up the stairs under the Inauguration stage was that destruction of and/or damage to the U.S. Capitol or Capitol Grounds property would occur. [my emphasis]

This intent statement ties together several crimes used against a good many of the rioters on January 6, and not just Proud Boys:

Obstruction: The intent to cause Pence and others to act differently fulfills the mens rea requirement for obstruction. It does so in a transitive way, meaning the intent was to intimidate other people to act in a way counter to what their duty and justice demanded. That’s interesting because Judge Amit Mehta’s opinion on obstruction saw the mens rea requirement as intransitive. While this intent statement has evidence of intransitive mens rea as well, I think intimidation is the strongest application of obstruction on January 6. This, then, is a low level Proud Boy stating that the point of the riot was to intimidate Pence and others to get them to act a certain way.

Damage to the Capitol: As I have discussed repeatedly, the government is using the damage done to the Capitol, specifically the window that Dominic Pezzola broke in the first breach of the Capitol, to get to a terrorist enhancement that may expose defendants to far longer sentences. DOJ needs to prove that the damage Pezzola and others did was a reasonably foreseeable outcome of their efforts to obstruct the vote count to hold all the Proud Boys charged as co-conspirators accountable for the damage that Pezzola did. Here, Greene admits that that damage was foreseeable, and therefore exposes Pezzola, along with all the Proud Boys charged as co-conspirators, to that terrorist enhancement.

Trespassing: While there are ways that Greene’s cooperation is limited, it is significant that the first Proud Boy entering into a cooperation agreement did not enter the Capitol, as Greene did not. That’s because his intent statement adopts a broader understanding of the geographic area that might be deemed to contribute to the obstruction, to include the restricted area outside the building. This means it might incorporate others, like 3%er Guy Reffitt, Oath Keeper associates Thomas Caldwell and Bennie Parker, anti-masker Alan Hostetter, and Pied Piper of insurrection Alex Jones, in the scope of obstructive behavior, even if they didn’t enter the building. To be sure, DOJ will need to similarly prove the intent of each of these people; but by adopting this intent statement, Greene adopts it as the scope envisioned by the Proud Boys, the organizers of the entire assault.

FBI Searches the Home of the Guy Who Said, “I want to see thousands of normies burn that city to ash” on January 6

I want to see thousands of normies burn that city to ash today — Telegram text from person described as UCC-1, January 6, 2021

According to NYT’s Alan Feuer, the person who participated in the Proud Boy leadership Telegram chat planning for January 6 who was described as “Unindicted Co-Conspirator 1” (UCC-1) in the Proud Boy Leaders indictment is Aaron Whallon-Wolkind, the Vice President of the Philadelphia Chapter of the Proud Boys.

As described in the indictment, in Telegram chats obtained from Nordean’s phone, UCC-1 made a comment on January 4 reflecting an existing plan. And he played a key role in setting up the radio communications that would be used on the day of the riot.

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

42. On January 5, 2021, at 1:23 p.m., a new encrypted messaging channel entitled “Boots on the Ground” was created for communications by Proud Boys members in Washington, DC. In total, over sixty users participated in the Boots on the Ground channel, including D.C. NORDEAN, BIGGS, REHL, DONOHOE, and UCC-1. Shortly after the channel’s creation, BIGGS posted a message to the channel that read: “We are trying to avoid getting into any shit tonight. Tomorrow’s the day” and then “I’m here with rufio and a good group[.]”

[snip]

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

UCC-1 also warned the others not to write their criminal plans in Telegram texts.

Specifically, the person identified in the Superseding Indictment as Unindicted Co-Conspirator (“UCC-1”) advised that participants “[s]houldn’t be typing plans to commit felonies into your phone.” UCC-1 later directed that, “if you’re talkin[g] about playing Minecraft2 you just make sure you don’t use your phone at all or even have it anywhere around you.”

2 Minecraft is a video game. Based on information provided by the FBI, the government understands that it is common for persons discussing criminal activity online to refer to such activity as occurring “in Minecraft” to conceal the true nature of the activity.

The full context of UCC-1’s comment about burning DC to ash includes a comment reflecting his belief that “the state is the enemy of the people” and a response from Person 2 describing that “normiecons” have no adrenaline control, a recognition that shows up elsewhere that the Proud Boys could and did inflame non-Proud Boy members.

DONOHOE: Are you here?

UCC-1: No I started a new job, don’t want to fuck it up yet

DONOHOE: Well fuck man

UCC-1: There will be plenty more I’m sure lol

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

Person-2: Would be epic

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

Person-2: We are the people

UCC-1: Fuck yea

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

Person-2: Fuck these commie traitors

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

DONOHOE: I’m leaving with a crew of about 15 at 0830 to hoof it to the monument no colors

Person-2 Fuck it let them loose

Person-3 I agree . . . They went too far when the [sic] arrested Henry as a scare tactic

A detention memo for Ethan Nordean revealed that UCC-1 was monitoring livestreams and using other methods to track the riot (I’ve written about how useful former Army Captain Gabriel Garcia’s live streams would have been for that purpose; given Whallon-Wolkind’s role in setting the channel for the Baofengs, it’s likely he tracked that too).

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.” UCC-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.

The centrality of UCC-1 in the indictment against the Proud Boy leaders — along with Aram Rostom’s reporting on Whallon-Wolkind’s past efforts to share information on Antifa with the FBI — fed conspiracies about the FBI seeding the entire January 6 riot.

In January 2019, a member of the Philadelphia chapter of the Proud Boys who called himself “Aaron PB” was on a Telegram chat with fellow members to gather information about Antifa, according to leaked chat screenshots whose authenticity was confirmed by a source familiar with the Proud Boys and by a lawyer for Aaron PB. Aaron PB said in a chat that he was gathering “info we want to send our FBI contact.”

A source close to the federal investigation told Reuters that “Aaron PB” is a Philadelphia Proud Boy leader named Aaron Whallon-Wolkind.

Whallon-Wolkind did not respond to phone calls or questions sent via text. Reached by a Reuters reporter, he hung up.

Patrick Trainor, a New Jersey lawyer for Whallon-Wolkind in an unrelated lawsuit, said Whallon-Wolkind and other Philadelphia Proud Boys had talked about inconsequential matters with the FBI over the years. Those contacts did not amount to anything substantive, Trainor said. Trainor represents other Proud Boys as well.

“They’ve all been approached at different times at different rallies in the city of Philadelphia,” he said. “Plainclothes FBI guys wanted to talk to them. You know: ‘We heard this happened. This happened so let’s talk about it.’”

Trainor acknowledged Whallon-Wolkind made the comments about “our FBI contact” on the Telegram chat, but believes they were not meant to be taken seriously. “I think he was just breaking balls,” Trainor said. “I think there was no contact with the FBI.”

In a May Motion for a Bill of Particulars, Ethan Nordean’s attorneys professed to need the identity of UCC-1 because key allegations in the conspiracy were attributed to him.

The government uses the statements of a person identified as “UCC-1” in the FSI to detain Nordean and to establish a conspiracy. The government has not produced evidence identifying this individual.

[snip]

The FSI cites a “UCC-1” who allegedly makes various conspiratorial remarks. FSI, ¶¶ 41, 42, 47. The government has not produced evidence identifying this individual.

But by July 15 (not long before Enrique Tarrio called Zach Rehl’s wife to sound out whether Rehl was flipping), when Judge Tim Kelly asked whether Nordean lawyer Nick Smith still wanted that identity, Smith instead emphasized a greater need for evidence linking Dominic Pezzola to his client. Smith did complain that the Proud Boys were left speculating on the identity of the person, ridiculously suggesting that his client didn’t know the identities of the around six other people with whom he was in a leadership Telegram channel. Smith then noted that there was public information (Rostom’s reporting) that UCC-1 had been a government informant. Prosecutor Luke Jones then confirmed that UCC-1 was not a CHS — that is, a paid informant of the sort that FBI might use to entrap others.

Nevertheless, in July, it appeared that prosecutors had a cooperating witness who could attest to an advance plan to storm the Capitol.

On Friday, according to a filing purporting to argue that Zach Rehl should be released on bail, FBI agents raided Whallon-Wolkind’s home.

Rehl’s attorney, Jonathon Moseley, claimed that because (he said), “Aaron Whallon-Wollkind did not join the events in the District of Columbia on January 6, 2021, whether the peaceful demonstrations or the violent attacks by a very, very few against U.S. Capitol Police … the Government has no basis for investigating or charging Whallon-Wollkind other than his connection to Zachary Rehl” [all three forms of emphasis Moseley’s], which in turn Moseley claimed was proof that the government still did not have any evidence against Rehl.

It’s a colossally stupid argument, almost as stupid as Moseley’s last two filings, in which he admitted that the Proud Boys “‘circle[d]’ (in a rectangle) the region around the Capitol to monitor the risk from counter-demonstrators,” an encirclement plan that had been publicly tied to obstructing the vote count in advance, and then argued that because Ali Alexander, a brown person who took credit for organizing the Stop the Steal rallies, had not been arrested yet, his [white] client should not have been either.

In the guise of arguing that a warrant that Judge Kelly likely knew about — if not authorized — in advance did not substantiate probable cause, Moseley laid out anything a co-conspirator might want to know about the raid of one of another co-conspirator, including the date of the search, the items listed in the warrant, the crimes under investigation, the items seized, and Whallon-Wolkind’s [wise] refusal to answer questions without an attorney present.

Before dawn on the morning of Friday, October 8, 2021, approximately 20 law enforcement agents heavily armed and wearing riot police gear, raided the home rented by Aaron Whallon-Wollkind near the Pennsylvania border. Aaron was awakened to threats, commands, and intimidation from an extremely loud loud-speaker (far more powerful than a hand-held bullhorn) ordering him to come out of his rural house with his hands up. He walked out of the door to find his girlfriend already handcuffed outdoors without any pants being guarded by the riot-gear wearing FBI agents.

On his lawn he found an armored personnel carrier which he understands to be a “Bear Cat.” The tank-like armored personnel carrier and other vehicles had torn up his lawn. There was also a roughly 15 foot long battering ram mounted on a vehicle. They were apparently all agents of the Federal Bureau of Investigation or at least led by the FBI with supporting officers.

[snip]

In the pre-dawn of Friday, October 8, 2021, Whallon-Wollkind was also handcuffed and held outside while the agents ransacked his house along with his half-naked girlfriend. After some of the roughly 20 agents had searched his house inside, some of the agents brought Whallon-Wollkind back inside where they had moved a single chair in the middle of a room like an interrogation scene from a war movie. They sat him down and began to interrogate him. He told them that he refused to say anything without the advice of an attorney.

The FBI took all of his computer and computer devices and phones, including an old broken phone.

However, Whallon-Wollkind was not arrested or charged.

[snip]

They had staked out his house and taken photographs. The only thing they did not already have is evidence of Zachary Rehl planning, organizing, or leading a poorly-defined “Stop the Steal protest” which Ari [sic] Alexander takes credit for being the National Organizer of. Counsel has reviewed the search warrant and documents given to Whallon-Wollkind yesterday morning, which was sent by text message from his girlfriend.

Counsel understands that when freely given to Wollkind and his girlfriend, the documents lost their sealed character. The paperwork was freely provided to Wollkind and his girlfriend at their house, with no instructions that any restrictions applied to them. There is nothing in the search warrant that orders anything with regard to the person whose property is being searched. We are not talking about the underlying affidavit, which was not provided and remains under seal. But the deprivation of Zachary Rehl’s liberty, being incarcerated for months of his life he will never get back, for things he did not do, outweighs any interest of the Government in continuing to perpetuate a baseless conspiracy theory against Zachary Rehl.

The search warrant is authorized to be executed by October 14, 2021, corresponding to the motions schedule for the next hearing of this Court.

The search warrant was issued on either October 1, 2021, or October 4, 2021 (the text message version is blurry).

[snip]

The SUBJECT OFFENSES are the same criminal charges for which Zachary Rehl was indicted in the First Superseding Indictment. The items to be searched and seized include:

a. Clothing items associating AARON WOLKIND with the Proud Boys organization, as described in the affidavit in support of the search warrant application.

* * *

d. Records and information relating to the identification of persons who either (i) collaborated, conspired or assisted (knowingly or unknowingly) the commission of the SUBJECT OFFENSES; or (ii) communicated about matters relating to the SUBJECT OFFENSES, including records that help reveal their whereabouts.

* * *

f. Records and information … any efforts to or questions about the legitimacy of the 2020 Presidential election, the certification process of the 2020 Presidential Election, or otherwise influence the policy or composition of the United States government by intimidation or coercion.

* * *

h. Records and information relating to the state of mind of the subjects and/or co-conspirators, e.g. intent, absence of mistake….

Moseley makes much of the fact that the FBI had correctly identified in which judicial district Whallon-Wolkind’s house is located, which he says is in a rural area close to the PA border, as well as that the FBI had a serial number and type for Whallon-Wolkind’s smart phone.

Indeed, while counsel is not revealing the judicial district where the search warrant was issued, where Wollkind resides, and where the search warrant was executed, the FBI would have to already know everything imaginable about Wollkind in order to apply to the correct judicial district, which is not what one would expect, and to include (thankfully, to avoid misunderstandings and mistakes) three photographs of Wollkind’s rented house. Thus, the FBI did not need to learn about Wollkind. They wanted to scrounge around for evidence against Rehl that they still do not have. The FBI already knew the precise type and serial number of the smart phone used by Wollkind.

It’s as if this attorney has never seen a probable cause warrant affidavit before, which describe both these things to establish probable cause for the warrant.

Moseley’s conspiracy theory is that the FBI obtained this warrant between the time Rehl first renewed his bid for pretrial release and days before the time there’ll be a status hearing exclusively to obtain evidence to use to prove what the DC Circuit Court has already said is adequate basis to detain Rehl’s co-conspirators.

Perhaps the most interesting detail in this filing, however, is a stray sentence that seems to indicate that Whallon-Wolkind may have traveled to DC in January after the riot.

Aaron Whallon-Wollkind never travelled to the District of Columbia until after the protests were over.

Whatever else Moseley argues, this filing comes after months in which his client’s alleged co-conspirators have suggested that Whallon-Wolkind either was cued by the FBI to incite the entire riot with really incriminating statements (which Jones effectively denied) or had only avoided charges for those far more damning statements because he was cooperating. That is, for months, other Proud Boys have argued that Whallon-Wolkind’s statements were badly incriminating. Now Moseley wants the judge who has been hearing that for months (Moseley repeatedly states that this investigation has been going on ten months rather than nine) to believe there’s nothing incriminating about Whallon-Wolkind’s actions leading up to and during the riot.

If Whallon-Wolkind had been cooperating before — presumably under a proffer agreement that would have prohibited the government from using his statements against him so long as they were honest — it appears that cooperation has ceased. Or perhaps the government has gotten more useful cooperators who’ve implicated Whallon-Wolkind more deeply in the planning for that day.

Whatever the reason, the FBI has recently shifted its focus to the guy who expressed his desire on the morning of the insurrection that there would be an insurrection.

The FBI’s Proud Boy Informant Showed Up Late

The Proud Boys charged with the most serious assaults on January 6 — including (at a minimum) Dan “Milkshake” Scott and Christopher Worrell — are not charged with conspiracy, though both could easily have been included as co-conspirators. Nor is Ryan Samsel, who is not known to be a Proud Boy but spoke to Joe Biggs just before he kicked off the entire riot by allegedly knocking over a cop and giving her a concussion (this may change, especially since, after a long delay, DOJ charged Samsel individually in an indictment that, either via the assignment wheel or because it was identified as a case related to the Proud Boys leadership indictment, got assigned to Judge Tim Kelly). While Dominic Pezzola is charged with assault for stealing the riot shield he used to break into the Capitol and Billy Chrestman is charged with threatening to assault a cop, their co-defendants are not implicated in those assaults, except insofar as they are overt acts in a conspiracy.

That’s why I find this detail from NYT’s blockbuster report on what a Proud Boy informant who showed up late to the January 6 riot and then entered the Capitol has told the FBI about the investigation rather interesting.

At the same time, the new information is likely to complicate the government’s efforts to prove the high-profile conspiracy charges it has brought against several members of the Proud Boys.

On Jan. 6, and for months after, the records show, the informant, who was affiliated with a Midwest chapter of the Proud Boys, denied that the group intended to use violence that day.

[snip]

On the eve of the attack, the records show, the informant said that the group had no plans to engage in violence the next day except to defend itself from potential assaults from leftist activists — a narrative the Proud Boys have often used to excuse their own violent behavior.

The government has never accused the Proud Boy conspirators of planning to use violence themselves, though there is evidence they knew their incitement could spark violence among “normies.” There’s even evidence that Ethan Nordean tried to rein in one attack (though only after he had presumably witnessed other assaults on cops).

That is, that claim is utterly irrelevant to the government’s conspiracy cases against the Proud Boys.

And yet the NYT offered it as one reason this informant’s report might, “complicate the government’s efforts to prove the high-profile conspiracy charges it has brought against several members of the Proud Boys.”

To be sure, there is one way this informant might undermine the existing conspiracy charges.

The informant’s interview reports affirmatively claim that he knew of no plans to storm the Capitol, nor did he hear any talk of the electoral college certification in his travels that day.

In lengthy interviews, the records say, he also denied that the extremist organization planned in advance to storm the Capitol.

[snip]

But statements from the informant appear to counter the government’s assertion that the Proud Boys organized for an offensive assault on the Capitol intended to stop the peaceful transition from Mr. Trump to Mr. Biden.

On the eve of the attack, the records show, the informant said that the group had no plans to engage in violence the next day except to defend itself from potential assaults from leftist activists — a narrative the Proud Boys have often used to excuse their own violent behavior.

Then, during an interview in April, the informant again told his handlers that Proud Boys leaders gave explicit orders to maintain a defensive posture on Jan. 6. At another point in the interview, he said that he never heard any discussion that day about stopping the Electoral College process.

The records show that, after driving to Washington and checking into an Airbnb in Virginia on Jan. 5, the informant spent most of Jan. 6 with other Proud Boys, including some who have been charged in the attack. While the informant mentioned seeing Proud Boys leaders that day, like Ethan Nordean, who has also been charged, there is no indication that he was directly involved with any Proud Boys in leadership positions.

In a detailed account of his activities contained in the records, the informant, who was part of a group chat of other Proud Boys, described meeting up with scores of men from chapters around the country at 10 a.m. on Jan. 6 at the Washington Monument and eventually marching to the Capitol. He said that when he arrived, throngs of people were already streaming past the first barrier outside the building, which, he later learned, was taken down by one of his Proud Boy acquaintances and a young woman with him. [my emphasis]

This guy’s testimony absolutely poses a challenge to prosecutors prosecuting the Proud Boys this guy was actually interacting with.

That said, the NYT does not say whether he was interacting with those charged with conspiracy or even obstruction (still-active Proud Boys, like Jeremy Grace, have been charged only with trespassing). Even if he was interacting with people charged with conspiracy, the fact that he showed up late and (claimed that he) did not know that some of his own acquaintances were going to breach the barriers until after the fact would, at most, show that he wasn’t privy to the plans of lower level cells.

But the way in which DOJ has charged the Proud Boy side of the conspiracies is with one leadership conspiracy, and four subconspiracies that are effectively cells that allegedly worked together to achieve smaller objectives: to breach the West door, to breach the North door, and to keep the Visitor Center gates open (the NYT misses one of the charged Proud Boy conspiracies, against the Klein brothers, for opening a North door to the building, which has acquired more tactical import with the charging of Ben Martin).

Two main things matter to the viability of the larger Proud Boys conspiracy: First, whether the four charged in the leadership conspiracy did have an advance plan. And second, whether their conspiracy interlocks with the Dominic Pezzola conspiracy that ended up breaching the front door of the Capitol and with it exposed Pezzola, his co-conspirators, and by association, the Proud Boy leaders to terrorism enhancements.

The second point is one that the Proud Boy leaders are contesting aggressively. We have yet to see evidence proving a tie between those two conspiracies. But we also have yet to see any evidence from the December rally at which the ties to Pezzola appear to have been forged. Meanwhile, William Pepe is disclaiming knowing the others, suggesting a possible weakness in that conspiracy charge.

As to the first, what we’ve seen in public evidence is that, in the wake of the Enrique Tarrio arrest on January 4, the four leaders attempted to regroup, and then, on the night before the riot, Joe Biggs and Ethan Nordean met with unnamed people and finalized a plan in seeming coordination with Tarrio, and avoided speaking of it even on their limited leadership Telegram chat.

On January 4, when Tarrio arrived in DC for the riot, he was arrested for his attack on the Black Church in December, whereupon he was found with weapons that are unlawful in DC. In the wake of Tarrio’s arrest, Ethan Nordean was supposed to be in charge of the operation. But around 9:08PM the day before the riot (these texts reflect Nordean’s Washington state time zone, so add three hours), someone said he had not heard from Nordean in hours.

Minutes later, Biggs explained that “we just had a meeting w[i]th a lot of guys” and “info should be coming out.” While redacted in these texts, the superseding indictment describes that he also notes he had just spoken with Tarrio.

He further explained that he was with Nordean and “we have a plan.”

Biggs then says he gave Tarrio a plan.

Ethan Nordean may have been in charge on January 6. But Biggs seems to have been the one working most closely with Tarrio, through whom at least some of the inter-militia coordination worked.

There’s little question they had a plan to do something (and that that plan did not include attending the Trump rally which was the primary innocent reason for Trump supporters to show up to DC that day). The question is what kind of evidence DOJ has substantiating that plan, especially after claimed efforts to flip Zach Rehl collapsed. (Nordean has also said he’ll move to suppress these texts because his spouse consented to the breach of his phone, which led FBI to obtain them, but it’s likely the FBI has a second set of the texts in any case.)

But it also is likely the case that the place to look for that evidence is not with a low-level Proud Boy who showed up late to insurrection, but with the others with whom Nordean and Biggs were meeting the night before the riot. And there’s no indication that these people were all Proud Boys, and in fact good reason to suspect they weren’t.

In the weeks before the riot, Kelly Meggs repeatedly talked about a Florida-based intra-militia alliance.

In the days after both the DC even[t] and an event involving Stone in Florida, Oath Keeper Kelly Meggs claimed he organized a Florida-based “alliance” between the Oath Keepers, Proud Boys, and 3%ers.

On Christmas Eve, Meggs specifically tied protection at the January rally, probably of Stone, and coordination with a Proud Boy, almost certainly Tarrio, in the same text.

And in the days after, the Southern California 3%ers laid out a Stop the Steal affiliated plan to surround the Capitol.

Spread the word to other CALIFORNIA Patriots to join us as we March into the Capitol Jan 6. The Plan right now is to meet up at two occasions and locations: 1. Jan 5th 2pm at the Supreme Court steps for a rally. (Myself, Alan, [and others] will be speaking) 2. Jan 6th early 7am meet in front of the Kimpton George Hotel…we will leave at 7:30am sharp and March (15 mins) to the Capital [sic] to meet up with the stop the steal organization and surround the capital. [sic] There will be speakers there and we will be part of the large effort for the “Wild Rally” that Trump has asked us all to be part of. [my emphasis]

Not only is this what happened on January 6, but Joe Biggs seemed to know that key Stop the Steal figures, including his former employer Alex Jones, would open up a second front of this attack and arrived to take part in it, entering the Capitol a second time virtually in tandem with the Meggs-led Stack.

This is one reason I keep presenting all these conspiracies together: because there’s good reason the Proud Boy conspiracies don’t just intersect with each other, but that the Proud Boy conspiracies intersect, in the person of Joe Biggs and others, with each other.

There are many reasons that the report of an FBI handler not understanding that his or her Proud Boy informant was describing the breach of the Capitol as it happened is important.

After meeting his fellow Proud Boys at the Washington Monument that morning, the informant described his path to the Capitol grounds where he saw barriers knocked down and Trump supporters streaming into the building, the records show. At one point, his handler appeared not to grasp that the building had been breached, the records show, and asked the informant to keep him in the loop — especially if there was any violence.

But, except to limited degree to which his testimony affects the case against the Proud Boys with whom he actually interacted, this report primarily provides yet more proof that the FBI, trained by Billy Barr not to investigate any subjects Trump claimed as his own tribe, had no conception of what they were looking at on January 6, not even as the Proud Boys led an attack on the Capitol.

The government has not yet publicly shown all of its evidence that the Proud Boy leaders, alone or in concert with other militias and Stop the Steal organizers, had a plan to attack the Capitol on January 6. Unless something disrupts the case, we won’t see that until next summer.

But one thing we know from the available evidence is that low-level Proud Boys who showed up late to insurrection are not the place to look for that plan.