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Trevor McFadden Rewards a White Lady for Endorsing a Revolution and Bragging about Violence against Cops

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Yesterday, Trevor McFadden blew off DOJ’s request that Jenny Cudd be sentenced to jail time as well as DOJ’s request for a continuance of Cudd’s sentence so DOJ can determine what to do given that Cudd reneged on her statement of offense. Instead, the Trump appointee sentenced Cudd to two months of probation and a $5000 fine. Given the other sentences for January 6 defendants and even McFadden’s other sentencing decisions, it’s hard to view this sentence as anything else but a reward to Cudd for endorsing a revolution and refusing to fully cooperate with the government.

I could not listen in on the sentencing hearing. It was held in person, and McFadden — perhaps because he would like to hide his naked partisanship from the public — doesn’t turn on his public line for in-person hearings. At least forty other people besides me tried to call into this hearing.

But according to Jordan Fischer, the entire hearing was about whether those — like Cudd — who participated in a violent attempt to interfere with the peaceful transfer of power are being treated differently than Portland protestors arrested blocks away from Federal property. Cudd even publicly stated that she wished the effort to interfere with the vote certification had succeeded, basically a public boast that she wanted to obstruct the an official proceeding, the original crime with which she was charged.

Cudd’s attorney, Marina Medvin, accused the DOJ of “gamesmanship” and suggested prosecutors were recommending jail time not because of her individual actions, but because of her political views. She dismissed Cudd’s social media statements as “drunken tirades” and repeatedly drew comparisons to how federal prosecutors have charged, or not charged, protestors in Portland and during the confirmation hearings for Supreme Court Justice Brett Kavanaugh. McFadden was the right audience for those arguments, having repeatedly made the same comparisons himself during other hearings in Capitol riot cases.

Before delivering his sentence, McFadden said he didn’t believe in “aggregate justice” and that he found the DOJ’s sentencing recommendation for Cudd “disproportionate” from others with similar conduct.

“It does feel like the government had had two different standards here, and I can’t abide by that,” he said.

Cudd herself delivered a short statement promising to continue to fight for “free, fair and transparent elections” and saying she’d suffered financial and social consequences from her arrest, including threats against her and her business. She also expressed regret — that the challenge to certification of electoral votes on Jan. 6 was disrupted.

“I believe we would have a very different country if that debate process had not been interrupted that day,” Cudd said.

The reason we can be absolutely certain that McFadden rewarded Cudd because she doubled down on the glee with which she interfered with the vote certification (aside from his repeated explicit promises to sentence January 6 defendants lightly) is because we can compare her sentence with that of her co-defendant Eliel Rosa, who is different from Cudd in five ways: Rosa is an immigrant from Brazil, he pled guilty to a less serious misdemeanor than Cudd (parading versus entering restricted grounds), he not only fully cooperated with the investigation but actually turned himself in, unlike Cudd he was not in communication with the Proud Boys, and unlike Cudd, he is not known to have endorsed revolution the night before the riot.

McFadden sentenced Rosa to a longer period of probation than he did Cudd.

As the government has repeatedly described, after Cudd went to the rally on January 5, she came back to her hotel room at the Willard Hotel and endorsed a revolution.

On January 5, 2021, Cudd posted a video to social media in which she said, “a lot of . . . the speakers this evening were calling for a revolution. Now I don’t know what y’all think about a revolution, but I’m all for it . . . . Nobody actually wants war, nobody wants bloodshed, but the government works for us and, unfortunately, it appears that they have forgotten that, quite a lot. So if a revolution is what it takes then so be it. I don’t know if that is going to kick off tomorrow or not. We shall see what the powers that be choose to do with their power, and we shall see what it is that happens in Congress tomorrow at our United States Capitol. So either way I think that either our side or the other side is going to start a revolution.” [my emphasis]

The next day, as she was marching to the Capitol in a bulletproof sweatshirt (reflecting pre-planning for violence), she stated that she planned to convene with the Proud Boys who were — at that moment — kicking off a violent attack on the Capitol.

The following day, on January 6, 2021, Cudd posted about marching toward the Capitol. According to a newspaper in Texas, at approximately 12:30 p.m., Cudd posted a live video to social media in which she stated that she was about 3 miles from the Capitol, that she intended to convene with the Proud Boys2 at the Capitol, and that she was wearing a bulletproof sweatshirt.

2 Cudd appears to have been communicating with a member of the Proud Boys on and around January 6; however, the government is not aware of any additional connection Cudd has to the group.

The government even cited Cudd’s boasts about the violence used against cops.

“So we get to the Capitol and some of the patriots had already broken down all of the barricades, and they had literally ripped out the fence . . . Pushing and pushing and pushing. And we got the police to back off. So we get up there and the scaffolding that they had put up for the inauguration, there were people that were starting to climb it. We had to scale a wall to get there. There were people that were starting to climb the scaffolding. And we just pushed and pushed and pushed and pushed and yelled ‘go’ and yelled ‘charge’ and on and on and on. We just pushed and pushed and pushed, okay? And we got in. We got up the top of the Capitol. There was a door that was open. We went through the door. And we were inside

In October, McFadden sentenced Rosa to twelve months of probation (he did not fine Rosa, if I recall correctly, because Rosa already lost his job as a result of his role in the insurrection).

Yesterday, Trevor McFadden rewarded Rosa’s co-defendant by giving her just two months of probation, as compared to Rosa’s year of probation.

With that sentence, then, McFadden rewarded a white lady for attacking democracy.

Update: On Twitter, Cudd claimed that my factual observation about the way McFadden coddled her arises out of white guilt.

Jenny Cudd’s Pre- and Post-Riot Endorsement of a Revolution

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Jenny Cudd and Eliel Rosa were charged with trespassing together by complaint on January 12 and arrested on January 13. The arrest affidavit tracked how the two of them walked together through the Capitol.

  • At approximately 2:35 p.m., Jenny Louise Cudd and Eliel Rosa, enter the U.S. Capitol via Upper West Terrace Door.
  • At approximately 2:36 p.m., Jenny Louise Cudd and Eliel Rosa are observed inside the Rotunda of the U.S. Capitol from the west side doorway that leads into the Rotunda. They are observed remaining inside the Rotunda until approximately 2:39 p.m. They are further observed taking pictures of the Rotunda and the surrounding area.
  • At approximately 2:39 p.m., Jenny Louise Cudd and Eliel Rosa are observed walking across the Statuary Hall area of the U.S. Capitol.
  • At approximately 2:40 p.m., Jenny Louise Cudd and Eliel Rosa are observed walking the Statuary Hall Connector and moves off camera at approximately 2:42 p.m.
  • At approximately 2:43 p.m., Jenny Louise Cudd and Eliel Rosa are observed departing from a large crowd inside the U.S. Capitol in front of the Main Door of the House Chamber and walks east toward the staircase.
  • Jenny Louise Cudd and Eliel Rosa are subsequently observed walking past the staircase and is further observed walking past the Upper House Door, going toward the other entrance to the House Chamber
  • Jenny Louise Cudd and Eliel Rosa are observed at approximately 2:54 p.m. at the Upper House Door and further observed departing the U.S. Capitol.

It described how Cudd filmed a video at the Willard after she returned, boasting that she was present when, “the new revolution started at the Capitol.”

Jenny Cudd stated on the Facebook video that she was at the Willard Hotel, located on 1401 Pennsylvania Ave. NW, Washington D.C. 20004. During the course of the video she made the following comments to confirm the location and date of the video recording, “I am sitting in front of the Willard Hotel, as I always do when I am in DC protesting,” and “I was here today on January 6th when the new revolution started at the Capitol.”

It further described an interview Cudd did a few days later, boasting of her actions.

On January 8, 2021, Jenny Louise Cudd participated in an interview with a local news station in which she describes her actions on January 6, 2021, in Washington D.C., to include her admission of entering the U.S. Capitol on the same date. Specifically, Jenny Louise Cudd states during her interview she stated the following, “we walked up the steps and walked inside an open door (referring to the U.S. Capitol).” Jenny Louise Cudd further stated, “we the Patriots did storm the U.S. Capitol.” She added in reference to entering the U.S. Capitol, “Yes, I would absolutely do it again.”

As the arrest affidavit notes, the FBI also interviewed Rosa before arresting the two of them. He confirmed that the two of them had, indeed, entered the Capitol on January 6.

On January 8, 2021, Eliel Rosa was interviewed by the FBI in Midland, Texas. During the interview, Eliel Rosa admitted that he and Jenny Louise Cudd had entered the U.S. Capitol on January 6, 2021.

The arrest affidavit focused entirely on events of January 6 and thereafter. And while both Cudd and Rosa were implicated in trespassing, the most damning evidence in the affidavit came from Cudd’s own description of their activity.

On February 3, they were both indicted with their original trespassing charges, as well as obstruction of the vote count and abetting such obstruction.

In March, Cudd moved to sever her case from that of Rosa, arguing in part that by charging them together, the government was attempting, “to create the appearance of a conspiracy or plan.” Specifically, though, Cudd wanted to sever her case from Rosa’s both to prevent his voluntary statement to the FBI from being presented against her, but also to ensure she could cross-examine him to get him to verify that she had no corrupt plan to disrupt the vote count.

Ms. Cudd will seek Mr. Rosa’s exculpatory testimony to show that there was no advance plan for Ms. Cudd to walk into the Capitol, that Ms. Cudd was not aware they were breaking the law by walking around inside, that Ms. Cudd did not act “corruptly,” that Ms. Cudd did not “picket,” that Ms. Cudd was not “disorderly,” that Ms. Cudd did not have the intent to commit any of the offenses alleged, and, more generally and most importantly, to show that Ms. Cudd did not commit any of the offenses of which she is accused. Mr. Rosa’s testimony would support reasonable doubt for each count of the Indictment. Furthermore, Ms. Cudd would be able to examine Mr. Rosa on redirect, to place any government cross examination into context for the fact finder.

In the government response, they largely recited the same facts shown in the arrest affidavit, then noted that Cudd and Rosa traveled from Midland, TX, stayed at the same hotel, and traveled through the Capitol together.

Cudd and Rosa both live in Midland, Texas, and they knew each other prior to January 6, 2021. They checked into the same hotel in Washington, D.C. on January 5, 2021, and checked out on January 7. On January 6, they went to the U.S. Capitol together.

In her reply, Cudd cited from Rosa’s 302, describing that he did not travel to the riot with anyone, and added more details based on the receipts obtained in discovery to make it clear they had not traveled together.

Contrary to the government’s implication that the two traveled together or planned to be at the Capitol together, Mr. Rosa’s interview with the FBI shows they did not. This is further supported by the hotel receipts, which the government obtained and shared with the defense. The Willard Hotel receipts show that rooms for the two co-defendants were booked on different dates and for different prices. (Ms. Cudd paid $143 more for her stay. If they coordinated, she would have surely chosen to save that money and would not have used Expedia for that booking.) The two stayed on different floors and had dinner separately and at different times, according to meal receipts. These were not the only two Trump supporters staying at the Willard Hotel from January 5-7. A large number of other Trump supporters shared those booking dates at the Willard. And, while the two may have known each other from back home and shared political views, that is not a basis for joinder. The entire crowd of Trump supporters, many of whom stayed at the Willard Hotel, were present at the Capitol. They are not charged together.

After the government had provided some discovery, including the contents of two phones, the government response to a request from Cudd that it identify all the exhibits it would use in its case in chief repeated the same facts laid out in the original arrest affidavit, all focused on January 6 and thereafter. The response also said it was far too early for Cudd to demand a list of exhibits that would be used against her at trial.

Shortly after Cudd’s request to learn precisely which exhibits the government would use at trial, Eliel Rosa entered into a plea agreement with an expiration date of July 29, pleading guilty to 40 USC 5104, the lesser of the two trespassing charges used with January 6 defendants. His statement of offense narrated what he and Cudd saw and heard as they wandered through the Capitol together. Specifically, he described hearing gunshots and seeing a bunch of people banging on doors, possibly the doors to the Speaker’s Lobby.

While inside of the U.S. Capitol, Mr. Rosa heard two gunshots and saw 15 to 20 men banging on assorted doors. These men were wearing “MAGA” gear.

In addition to implicating Cudd in his own trespassing, Rosa also noted that he did not have any evidence as to Cudd’s intent when she entered the Capitol.

Mr. Rosa has reviewed the allegations in the indictment that relate to his codefendant, Jenny Cudd, and admits that the allegations are true, or that he does not have sufficient information to dispute or disprove those allegations set forth the indictment. Specifically, this includes that Mr. Rosa does not have information as to Ms. Cudd’s motive and intent when she entered the U.S. Capitol on January 6, 2021 or whether Ms. Cudd had the intent to corruptly obstruct, influence, or impede an official proceeding before Congress – to wit: Congress’s Electoral College Certification on that date.

This might be seen as exculpatory for Cudd, precisely the kind of testimony she hoped to elicit from Rosa at any trial. But it also protected Rosa from any implication in whatever intent Cudd did have when she went to the Capitol.

The government’s sentencing memo for Rosa provided more details about the friendship between Rosa and Cudd, which Rosa described to be a recent friendship.

In an interview with the FBI, Mr. Rosa explained his relationship to his co-defendant Jenny Cudd. Mr. Rosa and Ms. Cudd are new friends, who met at an event in November 2020. Mr. Rosa explained that he and his co-defendant Jenny Cudd held similar beliefs. Although the two were not travel companions, they both discussed their plans to travel to Washington, D.C. and stayed in the same hotel in separate rooms.

It also describes how both returned to the Willard after Trump’s speech, and only then did Rosa decide to go to the Capitol (this detail was used against him at his sentencing).

In the afternoon on January 6, 2021, after listening to President Trump’s speech, Mr. Rosa returned to his hotel, however, he decided he would follow others heading toward the Capitol after learning that Vice President Pence was not going to take action. Mr. Rosa met with his friend Ms. Cudd at the hotel and together they marched toward the United States Capitol where he knew the Congressional certification was taking place.

Rosa’s own sentencing memo explains that the gunshot referred to in his statement of offense was probably the fatal shot of Ashli Babbitt, thereby seemingly confirming that he witnessed a bunch of people in MAGA hats banging on a door before Babbitt was shot.

When he got to the Capitol he walked in through an open door and followed the flow of people going through the rotunda and towards the East gate. He heard what he believes to have been the shot that killed Ms. Babitt. After being asked to stand against the wall for a short period of time while officers dealt with that situation, he (and others) were asked to leave out the East door, and he complied immediately.

Rosa’s sentencing memo also makes clear that he posted nothing positive about the riot after he attended it; a photo he posted to Facebook stating, “And we fight,” was posted at 5:22AM that morning.

On Tuesday, Judge McFadden sentenced Rosa to a year of probation, less than the month of home confinement the government requested (I thought I heard McFadden impose more community service than the government had asked for, 100 hours instead of 60, but no reference to community service appears in the docket).

Hours later, the notice that Cudd would plead guilty posted to the docket. Her plea offer was dated September 27, with a deadline of acceptance of October 11, a day earlier (and indeed, the signatures on the plea agreement are dated October 11). Because Cudd pled guilty to the more serious trespassing misdemeanor than Rosa, it meant that language permitting the government to ask for a terrorism enhancement was included as boilerplate in her plea agreement and given Marina Medvin’s complaints at the plea colloquy, nothing Medvin tried to do managed to get it removed.

Cudd’s statement of offense included a detail that may not appear anywhere else. Not only did she admit under oath she knew the vote was going to be certified (something Rosa also attested to), but she admitted under oath that at the the Stop the Steal rallies on January 5, she heard people calling for revolution and then stated that she was “all for it.”

On January 5, 2021, Ms. Cudd stated the following in a video on social media: “a lot of . . . the speakers this evening were calling for a revolution. Now I don’t know what y’all think about a revolution, but I’m all for it. . . . Nobody actually wants war, nobody wants bloodshed, but the government works for us and unfortunately it appears that they have forgotten that, quite a lot. So, if a revolution is what it takes then so be it. Um, I don’t know if that is going to kick off tomorrow or not, we shall see what the powers that be choose to do with their powers and we shall see what it is that happens in Congress tomorrow at our United States Capitol. So, um either way I think that either our side or the other side is going to start a revolution.”

It’s not clear whether Rosa knew of this video or saw it before he stated that he had no evidence about her intent on the day of the riot.

Cudd’s statement of offense admits that she was in the vicinity of the Babbitt shooting (without specifying it as such), but doesn’t describe (as Rosa’s did) being held up while police dealt with the aftermath.

The government produced to the defense evidence that showed that Ms. Cudd and Mr. Rosa continued walking through the Statuary Hall area of the U.S. Capitol, until 2:43 p.m., when they moved toward the House Chamber and connecting hallways; the defense does not dispute this evidence.

Thus, while Cudd’s statement of offense notes that she did not, herself, enter Pelosi’s office, the statement she recorded after the riot stating that, “we did break down the Nancy Pelosi’s office door,” would have taken place after those with Ashli Babbit had done more than $1,000 of damage to the doors to the Speaker’s lobby, something charged against at least three of those present, and something that could carry a terrorist enhancement for those who did the damage.

We did break down the Nancy Pelosi’s office door and somebody stole her gavel and took a picture sitting in the chair flipping off the camera. . . . they had to evacuate it before we charged the Capitol. . . . Fuck yes, I am proud of my actions, I fucking charged the Capitol today with patriots today. Hell yes I am proud of my actions.” Despite Ms. Cudd’s statement, there is no evidence that Ms. Cudd entered Nancy Pelosi’s office and no evidence that Ms. Cudd stole any property from the Capitol.

The next day, January 8, Cudd explained why she used the collective “we” in her statement from the day of the riot, seemingly trying to distance herself from some of the violence yet still describing that “the patriots [collectively] stormed the Capitol” and asserting she would do the same again, even after she was (at least per Rosa’s statement of offense) present in the vicinity of the Babbitt killing.

So if you watch the entire video [referring to her January 6 social media video] and you watch any of my videos you know that the way that I speak is that I always say we. So I say we the patriots, we . . . whatever. I always say we so those things did happen by other people but I was not a part of that. But in reference to it that umm we the patriots stormed the Capitol and some people went into different offices and different things like that . . . . I would do it again in a heartbeat because I did not break any laws.

The new language in Cudd’s statement of offense — describing the speakers calling for revolution — will help DOJ make a case (one they’ve already started to lay out) about the premeditation reflected in those who gave speeches on January 5.

But it also shows that she responded to calls for revolution the day before the riot by endorsing the idea, and then after the riot, she returned to the Willard and bragged she had been present when the revolution was started, ““I was here today on January 6th when the new revolution started at the Capitol.”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Felipe Marquez’ Plugged-In Misdemeanor Guilty Plea

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Seven January 6 defendants are known to have pled guilty on Friday:

  • (Reportedly, though it hasn’t been docketed yet) Terry Brown, the last of a group of people arrested in the Capitol Visitor’s Center the day of the riot to plead out
  • Brandon Harrison and Douglas Wangler, who traveled to DC from Illinois together and, after Trump’s rally, walked to the Capitol and entered the East door after the Oath Keepers had already done so; they saw a pile of wood on the floor when they entered
  • Brandon and Stephanie Miller, an Ohio couple who bragged about witnessing history on Facebook
  • Cleveland Meredith Jr, who showed up — armed, but late — to insurrection but made credible threats against Nancy Pelosi (and did something else that remains sealed)
  • Felipe Marquez, who drove his Tesla Model 3 from Miami and claimed while inside the Capitol that, “we only broke some windows”

The Meredith plea — the only one that wasn’t a misdemeanor trespassing plea — was pretty interesting because his prosecutors still haven’t revealed the substance of some sealed filings that will be taken into consideration at sentencing. Plus, Judge Amy Berman Jackson, who was threatened by Roger Stone and some Proud Boys two years before they teamed up to set off an attack on the Capitol, seemed unimpressed with Meredith’s claims that his threats against Pelosi weren’t all that serious.

But the Marquez plea may be more interesting over time. At the very least, that’s because he may mark a decision by DOJ to let edge obstruction defendants plead down to 18 USC 1752, the more serious of the two misdemeanor trespassing charges.

As I’ve laid out repeatedly, DOJ has used 18 USC 1512(c)(2), part of the crime of obstruction, to charge those who allegedly expressed the clear intent to prevent the vote certification with a felony. Upwards of 200 people, total, have been charged with obstruction, including Marquez. But among those charged with obstruction, there’s a great range of actions taken on January 6. Those charged include those who participated in a conspiracy — like Graydon Young and Josiah Colt, Jacob Chansley, who left ominous comments for Mike Pence on his dais seat and blew off repeated orders to vacate the Senate Chamber, and Paul Hodgkins, who brought his Trump flag to the Senate floor but left when the cops instructed him to.

I laid out here how Hodgkins, after he was the first to plead guilty, was sentenced to 8 months in prison after getting a three level enhancement for significantly obstructing the vote certification. But since that happened, at least ten different defendants have challenged this application of obstruction, posing difficult decisions for a number of judges.

Indeed, in the last several days, a number of defendants charged with obstruction have explicitly waived Speedy Trial rights to await the outcome of these challenges. That’s going to create a backlog in the already enormous logjam of January 6 defendants.

So I wonder whether DOJ will begin let the edge 1512 cases plead down to 1752. Particularly given judges’ apparent willingness to jail the misdemeanor defendants, for defendants not given a “significant obstruction” enhancement like Hodgkins got, the sentencing guideline is not that different, with up to a year available under 1752 (and probation after that), versus a range of 8 to 14 months on obstruction (that in reality might be closer to 3 to 8 months). The primary (but nevertheless significant) difference would be the felony conviction.

To be clear, Marquez is not the first to plead down like this. Eliel Rosa pled to the less serious trespass charge, 40 USC 5104 after being charged with obstruction, but there may have been evidentiary reasons DOJ agreed to do that, and as an immigrant from Brazil, he risks deportation after his sentence in any case. Karl Dresch was charged with obstruction but pled to 5104 after serving six months in pre-trial confinement. Kevin Cordon, who was charged with obstruction but pled guilty at the same time as his brother — who was charged only with trespassing — pled to 1752 instead of obstruction, just like Marquez did.

In other words, in cases where there are other circumstances that make such a plea worthwhile to DOJ, they’re certainly willing to consider it.

Still, it’s possible that Marquez represents a shift on DOJ’s part to do that for more defendants, as part of an effort to avoid a big backlog pending the review of the 1512 charge.

Or, maybe not.

There were several other details of Marquez’ plea hearing of interest. The hearing started by talking about some kind of pretrial violation (possibly some kind of non-arrest run-in with law enforcement), which led to two new conditions being added to Marquez’s release, a mental health evaluation and a specific requirement to alert the government of any contact with law enforcement. That’s not how plea hearings usually start, but AUSA Jeffrey Nestler reaffirmed that DOJ wanted to go forward anyway. Judge Rudolph Contreras even asked whether the request for mental health evaluation raised questions about Marquez’ competency to plead guilty, though neither his attorney, Cara Halverson, nor Nestler, had any concerns about that.

Nestler, by the way, is one of the key prosecutors on the omnibus Oath Keeper case, and ably defended DOJ’s application of obstruction in that case in a hearing on Wednesday. Aside from that large group and cooperating Oath Keeper witness Caleb Berry, the only other January 6 case, besides Marquez’, that he is prosecuting is that of Guy Reffitt, who has ties to the 3%ers.

In addition to the oddities in Marquez’ plea hearing, there’s something not in his plea agreement that is standard boilerplate for all the plea agreements thus far: a cooperation paragraph. That paragraph is not a full cooperation agreement; rather, it simply requires the defendant to agree to be debriefed by the FBI. Here’s how it appears in Cordon’s plea agreement down from obstruction to 1752.

Your client agrees to allow law enforcement agents to review any social media accounts operated by your client for statements and postings in and around January 6, 2021, and conduct an interview of your client regarding the events in and around January 6, 2021 prior to sentencing.

Its absence suggests that Marquez has already been debriefed. Indeed, an April motion to continue the case described that the evidence against Marquez included, “social media data, cell phone extraction data, as well as custodial interview files,” suggesting he was interviewed on his arrest.

That Marquez may have already provided truthful information is of interest because he spent part of the riot in Jeff Merkley’s office. His statement of offense describes his actions there obliquely:

While inside the Capitol, Marquez entered the private “hideaway” office of Senator Merkley where he sat at a conference table with other rioters.

His arrest affidavit describes a video Marquez posted to Snapchat from his time there.

3:45 to 4:11 – This clip is from inside a conference room.2 Several people are seated and standing around a mahogany table. Some people say, “No stealing; don’t steal anything.” At 4:02, a hand is visible, holding a light-tan colored vape pen similar to the one MARQUEZ was holding in the car in the clip from 0:54 to 1:54. At 4:04, someone pushes over a table lamp and says, “Why would I want to steal this bullshit.”

4:11 to 4:20 (end) – In this clip MARQUEZ turns the camera lens to film himself. He is wearing a red “KEEP AMERICA GREAT” hat and has a yellow gaiter around his neck, similar to what he was wearing in the earlier clip from 0:54 to 1:54. MARQUEZ appears to still be indoors, with a distinctive blue piece of artwork – the same as seen in Senator Merkley’s hideaway office – on the wall behind him. This is a screenshot of MARQUEZ’s face from the video:

2 Based upon conversations with representatives of the United States Capitol Police, the conference room in which MARQUEZ is present appears to be Senate room S140, the private “hideaway” office of Senator Merkley within the U.S. Capitol. The artwork visible on the walls of the conference room in MARQUEZ’s Snapchat video is also visible on a video that Senator Merkley posted to Twitter on January 6, 2021, at 11:36 pm, documenting some of the damage to his office.

Still, none of these descriptions reveals what Marquez might have seen (and subsequently shared) while in Merkley’s office.

Presumably partly because there’s little to no security footage of what went down, the investigation into what happened in Merkley’s office is one of the most interesting subplots of the investigation. There have been a number of trespassers who seem to have been arrested just to get their footage of what happened.  There’s a defendant who has never been charged who was, nevertheless, given discovery on the laptop that got stolen from Merkley’s office. And in the last few weeks, Brandon Fellows (who like Marquez has been charged with just obstruction but spent time in Merkley’s office) got a CIPA notice, meaning the government wants to use classified evidence against him.

In short, we simply don’t know. There’s something interesting about this plea. But it’s unclear what that is.

David Mish’s Silence on Ashli Babbitt’s Last Words

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I have followed, with great interest, how January 6 prosecutors have used the misdemeanor pleas to establish their larger case about January 6. In this post, I noted that Eliel Rosa’s sworn statement of offense describes how obvious it was for someone approaching the Capitol at the same time Ethan Nordean was that cops didn’t want them there.

11. In front of them, Mr. Rosa observed a large group of individuals shouting and Mr. Rosa heard people with megaphones shouting, “Go, Go, Go.” Mr. Rosa heard bangs and acknowledged the smell and presence of pepper spray that had been deployed. Because of these observations, he knew law enforcement was present and in front of the advancing group.

In this post, I collected a bunch of language from statements of offense that either validated a defendant’s own recording of the riot or described some of the violence.

That’s why I was particularly interested in the statement of offense of David Mish. Mish was a witness to Ashli Babbitt’s death. His arrest affidavit had described that he called Metropolitan Police Department on January 7 and offered information in conjunction with Babbitt’s death.

12. On approximately January 7, 2021, David Mish contacted the Washington, D.C. Metropolitan Police Department (“MPD”) stating that he had information to provide about the fatal shooting of Ashli Babbitt, who was shot inside the U.S. Capitol during the civil unrest. On January 8, 2020, Detective John Hendrick of the MPD contacted MISH by phone and recorded the ensuing conversation regarding the Babbitt shooting. MISH stated that he, together with several others, had entered the United States Capitol on January 6, 2021. MISH asked “[b]ecause I entered the Capitol Building are you guys gonna take me to jail? I didn’t break anything. . . . I went in, yes.” Detective Hendrick clarified with MISH that his sole investigatory focus was on the shooting and that he was not involved in investigating MISH’s actions inside the United States Capitol. Detective Hendrick explained that investigation of demonstrators’ actions inside was being handled by other agencies and that he could not say whether or not MISH would be arrested. MISH subsequently stated that “I came up the stairs where the scaffolding was. Um, I was with a group of guys. . . . [E]verybody was yelling ‘breach the building.’”

He told Detective Hendrick that he heard — and recorded — Babbitt telling the police blocking her entry into the Speaker’s Lobby that the mob she was with were “not gonna stop.”

14. In his interview with Detective Hendrick, MISH stated that a group of several individuals went into a bathroom adjacent to the Speaker’s Lobby and he objected when one of the group broke a mirror, stating, “we’re trying to get to the politicians because we wanna voice our . . . we wanna voice to ‘em.” MISH described Babbitt saying to the officer who was at the doorway, “Just open the door. They’re not gonna stop,” or words to that effect, referring to the crowd gathered at the doorway. MISH further stated that he had used his cell phone to record some of the activity that occurred within the United States Capitol. MISH told the detective, “from my video you can tell that I was one of the, I was the first group of people to hit that doorway,” referring again to the locked doorway leading to the Speaker’s Lobby that the rioters were attempting to breach. MISH stated he would provide the video footage to MPD Detective Hendrick and subsequently e-mailed a link to a Google Drive folder. To date, neither MPD nor the FBI has been able to access the content of the link. [my emphasis]

But none of this shows up in Mish’s statement of offense. There’s just one mention of the Babbitt shooting.

While inside the U.S. Capitol, the defendant entered a bathroom near the Speaker’s Lobby and came out to hear the fatal shooting of Ashli Babbitt.

And the Statement of Offense focuses on evidence implicating Mish, not collecting details about Babbitt’s killing.

On approximately January 7, 2021, the defendant contacted the Metropolitan Police Department (“MPD”) stating that he had information to provide about the fatal shooting of Ashli Babbitt inside the U.S. Capitol. On January 8, 2021, a detective with the MPD contacted the defendant by phone. During that conversation, the defendant stated that he had entered the U.S. Capitol on January 6, 2021. The defendant also described the clothing he was wearing, which matched the clothing the defendant was seen wearing on video footage taken inside the U.S. Capitol.

Mish’s plea agreement includes the boilerplate language on cooperation addressing his social media, not anything he witnessed (or claimed to have witnessed) at the Capitol.

There’s no conclusion we might draw from this — aside from, in this case, pertaining to one of the most sensitive parts of the ongoing investigation, DOJ did not include information they otherwise might.

January 6: The Trespasser Testimonials

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

Howell is not wrong.

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

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

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

Trespassers witness the violence

Bruce Ivey:

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

Thomas and Lori Vinson:

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

Danielle Doyle:

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

Edward Hemenway and Robert Bauer:

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

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

Derek Jancart and Erik Rau:

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

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

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

Jack Griffith:

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

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

Michael Curzio:

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

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

Matthew Mazzocco:

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

Kevin Gallagher:

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

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

Boyd Camper:

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

Eric Torrens

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

Mark Simon

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

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

Then-Houston cop Tam Pham

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

Anthony Sirica:

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

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

 

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

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

Trespassers validate their own video

Andrew Ryan Bennett:

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

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

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

Dona Bissey:

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

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

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

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

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

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

Anna Morgan-Lloyd:

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

[snip]

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

Valerie Ehrke:

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

Valerie Ehrke

Jordan Stotts:

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

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

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

Robert Reeder:

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

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

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

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

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

Jenny Cudd:

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

Michael Stepakoff:

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

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

Trespassers move in interesting ways

Jennifer Parks and Esther Schwemmer:

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

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

What Eliel Rosa Saw at the Precise Moment Ethan Nordean Was Not Seeing Officers Open the Upper West Terrace Door

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Yesterday, Eliel Rosa pled guilty to a misdemeanor charge of trespassing, even as his co-defendant, Jenny Cudd (the woman who famously got permission to fly on a pre-arranged trip to Mexico), continued to fight to get the obstruction count both were charged with dismissed as part of her own plea. (Rosa, who is a Brazilian citizen, faces a significant risk of deportation upon sentencing.)

Within an hour of that time, Ethan Nordean filed a motion to de-designate two 40-minute lengths of video designated highly sensitive so he can publicly release it. Nordean is trying to get video of something he didn’t witness personally released, showing that at 2:33PM on January 6, four minutes before Nordean entered the Upper West Terrace door at 2:37, two cops there opened the door and then, three minutes before he entered the door, one of those cops held the door open for an insurrectionist.

Second Upper West Terrace Video. This clip is 40 minutes in length, running from 2:20 p.m. Eastern Time on January 6 to 3:00 p.m. The video is from the same camera responsible for the First Upper West Terrace Video. Except, unlike in the shorter First Upper West Terrace Video, at 2:33 p.m., just a few minutes before Nordean enters the building, two police officers open the doors leading from the entry hallway into the Capitol Building. One officer holds the door open as the first protestor enters the building through the Upper West Terrace Door at 2:34 p.m. At 2:35 p.m., two minutes before the clip begins in the First Upper West Terrace Video, a police officer holds a conversation with a line of protestors. Then the officer permits them to enter the building.

Nordean also wants to get a video showing that, one minute before he entered through that door,  a cop propped the door open, and then, seven minutes after he went through the door, cops let a far bigger mob of people in.

[L]ess than a minute before Nordean enters the door, a police officer props the door open and moves a box out of the way of protestors entering the building. At 2:43 p.m., a time also outside the scope of the First Upper West Terrace Door Video, a group of officers large enough to block the narrow door to the Capitol Building confer with one another, as the line of protestors calmly waiting to enter grows outside. At 2:44:18 p.m., one of the officers appears to hear something in an earpiece. He then places his hand on the shoulder of a second officer who is speaking to the protestors and leans in to say something to him. The group of officers then permit more protestors to enter the building.

None of these things show up in the clips Nordean has been given, and none of these things would have been visible to Nordean in the minute during which he entered the building after assembling a violent mob to get to the door in the first place.

First Upper West Terrace Video. This clip is exactly one minute in length, running from 2:37 p.m. Eastern Time on January 6, to 2:38 p.m. Eastern Time. It depicts Nordean passing through a Capitol Building entryway hall. Two law enforcement officers stand aside as Nordean and others proceed into the building.

First Upper West Terrace Door Video. This clip is also exactly one minute in length, running from 2:37 p.m. Eastern Time on January 6, to 2:38 p.m. Eastern Time. However, this video is from a camera facing the door through which Nordean entered the Capitol Building before passing through the hall seen in the First Upper West Terrace Video. No law enforcement officers can be seen in this one-minute clip.

Don’t get me wrong: eventually, those 40-minute videos should come out, along with explanations of why those cops did what they did and whether they’re among the cops who were suspended for investigation after the insurrection. But the videos don’t help Nordean prove that, when he crossed into the Capitol from a terrace that was already well inside the restricted area that day, when he entered backed by thousands of men — many violent — that he had a key role in assembling, he knew what had happened four minutes earlier or what would happen seven minutes later. The only way he would have known what happened four minutes earlier and what would happen seven minutes later at the moment he himself crossed the threshold is if those cops were collaborators that he knew would open the door before the insurrection started.

If that’s the argument Nordean wants to make to get these videos released, by all means I’d love to hear it.

As I said, within an hour of the time that Nordean filing posted to PACER, Eliel Rosa was pleading guilty. He didn’t read his allocution during the plea, but it has been posted since. And it shows another coincidence in the lives of Ethan Nordean and Eliel Rosa. On January 6, Rosa was approaching the Capitol at the same time as Nordean was. And what he saw and heard is that people with bullhorns — like Nordean had — were shouting “Go, Go, Go,” as police set off pepper spray in an effort to hold them back. Rosa, who entered the Capitol just as it was opened (meaning the video Nordean wants would be helpful to Rosa and may be why Rosa got to plead to a misdemeanor) and two minutes before Nordean, knew that the police didn’t want him or the people yelling through the bullhorns to get people to move toward that door, because the cops were deploying pepper spray to get them to fall back.

10. On January 6, 2021, prior to 2:35 p.m., Eliel Rosa and Jenny Cudd approached the United States Capitol from the West.

11. In front of them, Mr. Rosa observed a large group of individuals shouting and Mr. Rosa heard people with megaphones shouting, “Go, Go, Go.” Mr. Rosa heard bangs and acknowledged the smell and presence of pepper spray that had been deployed. Because of these observations, he knew law enforcement was present and in front of the advancing group.

12. At approximately 2:35 p.m., Eliel Rosa and Jenny Cudd walked into the U.S. Capitol through the Upper West Terrace Door.

Mind you, Rosa is not the only misdemeanor plea that would include such evidence about what Nordean would have been seeing at the moment he was not seeing cops leave the door. By the time Nordean would go to trial there’d be a big handful of such statements of the offense, one after another January 6 defendant who knew, well before they entered the Capitol building, that they were not welcome in the building.

But even while Nordean’s alleged co-conspirator Zack Rehl seems to be getting chatty with prosecutors, Nordean is filing motions that would be most helpful if he wanted to prove he knew [hypothetically–I’m not arguing he did] there’d be collaborator cops waiting at that specific door of the Capitol, but otherwise would be useless to show what Nordean knew or saw when he crossed into the Capitol. Particularly as the government begins to collect sworn allocutions from people like Rosa making it clear what Nordean would have seen before he got to that door.

Update: In response to this motion, the government delivered the video in question to Judge Tim Kelly so he could see — the government contends — how Nordean misrepresented the video.

The Government’s Opposition to Defendant Nordean’s Motion for Removal of Sensitivity Designation (ECF 129) will be filed separately; however, the Government found it necessary to provide an immediate response to Defendant’s characterization of rioters’ entrance to the Capitol. The Government disputes Defendant Nordean’s characterization of the events surrounding Nordean’s unlawful entrance into the Capitol. Among other things, the surveillance footage does not “show[] a law enforcement officer authorizing Nordean’s entrance.” (ECF 113). Likewise, the footage does not show a police officer “prop[ping] the door open and mov[ing] a box out of the way of protestors entering the building.” (ECF 129) (emphasis added). The video depicts outnumbered Capitol Police officers being overrun by rioters unlawfully breaching a Capitol entrance.

And then Nordean’s attorneys responded, providing a new description of the video in question, one that adds a detail they didn’t include the first time: that the cops in question were already dealing with insurrectionists inside the building.

Perhaps most damning, consider the following clips, in tandem, in weighing the truth of the government’s claim to the public that the videos it will not release show “outnumbered Capitol Police officers being overrun by rioters unlawfully breaching a Capitol entrance.” ECF No. 103, p. 1. Nordean asks the Court to first review 2:33:18 p.m. in 126 USC 01 Upper West Terrace – 2021-01-06 _14h20min00s0000ms.asf; and then 2:33:42 p.m. in 0912 USCS 01 Upper West Terrace Door-2021-01-06_14h20min00s000ms.asf. In the first clip, police officers open an inner door to the Capitol, allowing protestors who are already in the building to enter a hallway leading to the Upper West Terrace Door. Seconds later, in the second clip, the protestors then open the Upper West Terrace Door to dozens or perhaps hundreds of protestors. With respect to the government’s claim of officers being “overrun,” and its claim that Nordean “falsely” represents that the videos show officers “authorizing” entry into the Capitol Building, Nordean asks the Court to view 2:37:28 p.m. in 126 USC 01 Upper West Terrace – 2021-01-06 _14h37min00s0000ms.asf, showing Nordean and others peacefully walking between multiple police officers who permit them to enter. It also asks the Court to view 2:44:00 p.m. to 2:44:30 p.m. in 0912 USCS 01 Upper West Terrace Door-2021-01-06_14h20min00s000ms.asf, in which police officers easily block a narrow entrance to the Capitol at the Upper West Terrace Door but then subsequently decide to permit protestors, who are not “overrunning” them, to enter. [my emphasis]

That description of the other rioters didn’t appear in their original description. It changes the meaning of it, because it offers other plausible explanations why cops at one post let rioters in as they were facing down rioters already in the building.

Again, I look forward to one day seeing videos showing what Ethan Nordean had no way of seeing before he entered the building. But thus far, Ethan Nordean has proven that Ethan Nordean provided an incomplete description of videos that depict what Ethan Nordean could not have seen happen just before he entered the Capitol.

It bears noting that Nordean’s larger argument, likening this dispute to one that was resolved in favor of John Anderson hours before Nordean’s own filing, resulting in the release of video that showed Anderson, is inapt and probably designed to impress gullible reporters or maybe complicit Congressmen like Paul Gosar. Nordean is pointing to the release of video that shows a defendant to argue for release of video that doesn’t show Nordean.

Update: Let me restate what Nordean is trying to argue.

By the time he got to the West Terrace door, he had passed at least three barricades. At each, he witnessed assaults, including — the first one — an assault that hospitalized a cop. In one of those cases, he reined in Christopher Quaglin, but Quaglin’s actions were still part of the collective action that allowed Nordean to even get to the West Terrace door. Nordean is trying to argue that, if at one of four barriers he passed to enter the Capitol, no cop was hospitalized as rioters passed, it’s proof he had no way of knowing he wasn’t welcome inside.