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Unpacking a January 6 Phone Warrant

Given the focus on legal authorities used in the January 6 investigation, I wanted to look at a search warrant affidavit for the phone of Karl Dresch, a Yooper arrested on January 19 for trespassing and obstructing the vote certification. FBI obtained it Wednesday and executed it yesterday.

The investigation into Dresch arose, as most of the January 6 investigations have, when some informed the FBI — in his case, on January 7 — that Dresch had posted about busting into the Capitol on Facebook. The FBI obtained a warrant for Dresch’s Facebook content, and then, on January 19, arrested him on trespass and obstruction charges. On January 22, in part because of his Facebook posts promising “we will be back” and in part because he had a 2013 arrest and felony conviction for a high speed chase to avoid arrest in Wisconsin, he was ordered detained pending trial. Shortly thereafter, the Houghton County Sheriff, Brian McLean, who knows both Karl and his father (who helped bust the Oklahoma City bombing terrorists), told a reporter Karl should have gotten released on bail.

His father, Stephen Dresch, who died in 2006, provided the FBI information a year prior that led agents to a stash of explosives one of the Oklahoma City bombers had hidden away at his since-vacated Kansas home.

[snip]

Despite the polar opposite outcomes, Houghton County Sheriff Brian J. McLean, who knows the Dresch family, called Stephen Dresch’s son “a chip off the old block.”

[snip]

Stephen Dresch, whom McLean described as a “brilliant, sharp guy,” and his son were “very vocal” about their beliefs, the sheriff of 24 years said. Karl Dresch “likes to give his opinion, whether other people want to hear it or not,” he said.

Houghton County deputies have dealt with Karl Dresch on “minor nuisance calls,” but never anything serious, and he wouldn’t be on a “list of people we’re concerned about,” McLean said.

[snip]

Sheriff McLean disagrees with the risk assessment. He said Karl Dresch doesn’t pose a significant risk to the public and “absolutely” should have received bond.

Since then there’s little else that has happened in this case. On February 3 he was indicted — again for the obstruction and trespassing charges, but still not an illegal possession charge tied to having two guns as a felon. On February 19, a CJA attorney filed an appearance for him. But there’s not even (in the docket) notice of his arraignment.

Now, over forty days after seizing the phone that the FBI believes he had with him on January 6, they have taken steps to access it, stating that they believe they will find evidence relating to his existing charges (trespassing and obstruction) along with unlawful possession.

Search warrant boilerplate for January 6 is slightly more comprehensive than for arrest warrants. In this case, it includes details of people calling out for Nancy Pelosi and other Members of Congress, a description of the note that Jacob Chansley left for Mike Pence in the Senate Chamber: “Justice is Coming.” It describes Eric Munchel and others wandering around with zip ties. That is, it culls the evidence from various insurrectionists that hints towards a more malign plot against Congress, without stating that explicitly. It is the story that DOJ may believe they will one day tell.

In this case, too, it includes details on the exact location and the size of the Capitol, including the Visitor’s Center.

U.S. Capitol Police (USCP), the FBI, and assisting law enforcement agencies are investigating a riot and related offenses that occurred at the United States Capitol Building, located at 1 First Street, NW, Washington, D.C., 20510 at latitude 38.88997 and longitude -77.00906 on January 6, 2021.

At the U.S. Capitol, the building itself has 540 rooms covering 175,170 square feet of ground, roughly four acres. The building is 751 feet long (roughly 228 meters) from north to south and 350 feet wide (106 meters) at its widest point. The U.S. Capitol Visitor Center is 580,000 square feet and is located underground on the east side of the Capitol.

I note the inclusion of these details because these measurements would be really useful in an affidavit that relied on details — such as the ones in Jeremy Groseclose’s arrest affidavit — that talk about the granularity of the location data the FBI is obtaining. In Groseclose’s case, a Google warrant IDed his presence in the Crypt to within 34 meters at 68% confidence. Given the size of the Capitol, then, a Google result like that would fairly clearly show the target in the Capitol, and (given a room the size of the Visitor’s Center) in the room in question.

The Visitor’s Center is one of two places inside the Capitol (the other is the Crypt) where Dresch took pictures and videos he later posted to Facebook, including this one, which court documents describe Facebook data doesn’t include the time for, but which he posted later that night.

So that may be one thing the FBI hopes to find by accessing this phone: More details about the photos Dresch took while in the Capitol. For example, there may be something on the video he took that implicates either him or others, and so want better evidence for trial.

But that’s one of the interesting absences in this affidavit. The warrant notes that Dresch used Verizon, but it doesn’t mention anything about his Verizon call records or — more especially — his location data. Presumably they have that, but have chosen not to include it.

It’s possible (indeed, the government has asserted they think they’ll find) more on the guns he has, in particular any evidence he brought them to DC either on January 6 or some follow-up trip, the one suggested by a second hotel receipt (note, in the existing affidavits, the FBI doesn’t say whom Dresch told, “we have your back give the word and we will be back even stronger,” after January 6, but Facebook surely has that).  If the FBI had reason to believe they could place someone at the Capitol with a gun, that would be an important investigative addition.

There are also his interlocutors, especially the guy, USER 2, with whom he was sharing information about what was going on in the Capitol during the event. The FBI undoubtedly knows who that is, but it’s possible FBI has reason to believe there may be more (such as deleted content) on the phone itself.

Finally, one reason the government is always going to want to exploit a phone is to obtain encrypted communications (like Signal) that wouldn’t be accessible from a provider.

None of this is at all momentous: Just an affidavit to search the phone of one presumably very minor guy, and one that can’t be all that operationally interesting (or else they would have sealed it, as virtually all search warrants currently are). Just one case among 300. At least on its face, just an effort to add another charge or learn more about other insurrectionists.

Timeline

December 16, 2020: Dresch posting about January 6: “1/6/2021=7/4/1771”

January 3: Dresch posts that he’s headed to DC: “NO EXCUSES! NO RETREAT! NO SURRENDER! TAKE THE STREETS! TAKE BACK OUR COUNTRY! 1/6/2021=7/4/1776”

January 7: Tip that Dresch posted on Facebook about entering the Capitol.

January 12: Warrant for Facebook account.

January 13: FBI obtains Facebook content. Among other things it shows the following posts from January 6 and 7:

  • January 6, 2:26: Picture 3 taken with a Moto e6 in the Crypt, which is under the Rotunda
  • 2:43: USER 2 messages Dresch that, Patriots are in the Capitol building now”
  • 2:44: Dresch responds to USER 2: I am, with picture of Capitol Visitor’s Center
  • 2:48: USER 2 messages Dresch that, “Word is police are getting ready to use teach gas.
  • 2:48: Dresch responds, “Been using it. Mask up.”
  • 3:13: Dresch posts, “Who’s house? OUR HOUSE!”
  • 3:14: Dresch posts Picture 3 with caption, “We are in”
  • 4:46: Dresch responds to comments saying “It was peaceful … still got a lil gas tho … mask on for safety
  • 5:17, 5:18: Dresch sends USER 3 two pictures with the caption, “That’s right outside the house of representative … we got in! Took a lil gas … wtf I love masks now!” Had the cops booking it”
  • 6:09: Dresch responds to comments saying, “we broke no glass no shoving I seen”
  • 8:32: Dresch posts crowd at Washington Monument, “Total Victory!”
  • 8:44: Dresch posts “I’m excited”
  • January 7, 12:11 AM: Dresch posts image from Visitor’s Center stating that “antifa did not take the capitol. that was Patriots. … those traitors Know who’s really in charge”
  • 8:32PM: Dresch posts to another post, “Mike Pence gave our country to the communist hordes, traitor scum like the rest of them, we have your back give the word and we will be back even stronger”

January 15: FBI obtains arrest warrant for Dresch

January 19: FBI surveils Dresch’s residence and then arrests him outside it, searches his home, finding:

  • A Motorola that may be a Moto e6
  • A bag that Dresch had with him in one of the photos he posted to Facebook, including:
    • A receipt from a hotel in Washington DC (no date described)
    • Eight boxes of ammunition
    • A CB radio
    • A Whistler laser/radar detector
    • A DC Metro Pass
    • A hotel receipt for a hotel in Chantilly, VA for arrival on January 5 and departure on January 7
  • A Russian SKS-type rifle with a bayonet
  • A shotgun

January 22: Because of prior felony involving evading arrest, Dresch detained pending trial

March 3: Warrant obtained

March 4: Warrant executed

A Tale of Two Zip Tie Guys: The Different Fates of Eric Munchel and Larry Brock

I’ve been following the case against Zip Tie Guy, Eric Munchel, and his mother closely. Last week, they appealed their pre-trial detention to the DC Circuit, in which is likely to be one of the first Circuit challenges to DOJ’s interpretation of this case, and one that is definitely a close case.

Last week, there was a development in the case against the other Zip Tie Guy, retired Air Force Lieutenant Colonel Larry Brock. Like Munchel, Brock showed up in videos on the Senate floor kitted out, wielding zip ties. Like Munchel, Brock voiced radical views, including a willingness to sacrifice himself for Trump before the insurrection.

Two family members and a longtime friend said that Brock’s political views had grown increasingly radical in recent years. Bill Leake, who flew with Brock in the Air Force for a decade, said that he had distanced himself from Brock. “I don’t contact him anymore ’cause he’s gotten extreme,” Leake told me. In recent years, Brock had become an increasingly committed supporter of Donald Trump, frequently wearing a Make America Great Again hat. In the days leading up to the siege of the Capitol, Brock had posted to social media about his plans to travel to Washington, D.C., to participate in Trump’s “Save America” rally. Brock’s family members said that he called himself a patriot, and that his expressions of that identity had become increasingly strident. One recalled “weird rage talk, basically, saying he’s willing to get in trouble to defend what he thinks is right, which is Trump being the President, I guess.” Both family members said that Brock had made racist remarks in their presence and that they believed white-supremacist views may have contributed to his motivations.

His social media posts even mentioned the Oath Keepers and Three Percenters.

Unlike Munchel, Brock also made it to Pelosi’s office, though he denies entering it.

Another thing differentiates Brock from Munchel: when Brock won pre-trial release, the government didn’t appeal that decision. At the time, the government suggested Brock likely faced more charges.

But on Friday, DOJ filed an information against Brock. While the information adds trespassing charges — six in total — it didn’t add felony charges. That’s fairly remarkable, because those who, like Brock, evinced a willingness to do extreme things to keep Trump in power have typically been charged with obstructing the certification of the vote. The same is true of those who made it to the floor of the Senate.

It’s definitely too early to tell (indeed, fairly recently, prosecutors said they weren’t prepared to talk plea deals). But this has all the appearance of someone who is preparing to plead guilty, presumably with a cooperation deal.

The people prosecuting him — DC AUSA Ahmed Baset and NSD AUSA Justin Sher (who joined the case on February 11) — are also on the Oath Keepers conspiracy indictment is another reason to believe that might be true. Indeed, Sher just joined the team on February 11. Baset and Sher are also on the Munchel prosecution team.

I would hope all these tea leaves suggest that Brock is about to flip, and not just for investigative reasons. If a retired officer were to get special treatment this early in the investigation, it would bode poorly going forward. For now, we can say that the two Zip Tie Guys are facing different fates.

Update: Later in the day, April Ayers-Perez (who appears to be a detailee from another US Attorney’s office) replaced Baset on Brock’s case.

Update: Corrected Brock’s rank.

Update: Today Brock pled not guilty to the trespass charges against him, suggesting this is, in fact, just an apparently inexplicable preferential treatment of a privileged defendant.

The Broken Windows Terrorism Enhancement and Detention of the January 6 Insurrectionists

In this post, I described how Jessica Watkins’ defense attorney, Michelle Peterson, admitted how damning her client’s own description of her actions was, but then invented a false timeline to explain away those statements. Peterson also said that evidence about Stewart Rhodes’ plans for the Oath Keepers to replicate January 6 can’t be held against her client because Watkins was already in jail when Rhodes made those comments, but also says Watkins — who in November, before the Trump rallies that Watkins’ own lawyer cited to explain Watkins’ actions, said she’d go underground if Biden assumed the Presidency — can be released while those plans are ongoing. (Peterson is also arguing that Watkins should go back to running the bar where she recruited co-conspirator Donovan Crowl.)

I think Peterson’s argument fails because the evidence doesn’t match her claims. But she makes an argument that I think will be compelling for some other Oath Keeper defendants.

The government conspiracy charge against nine Oath Keepers alleges a conspiracy to obstruct an official proceeding (the counting of the electoral vote), obstruction of that proceeding, and forcibly entering the Capitol while the Vice President was present. The evidence for those allegations is all clear cut.

But as I described in the post, the government also charges the nine Oath Keepers with destruction of government property and aiding and abetting such destruction.

The indictment only describes destruction in two places: in the general boilerplate description of the event used against all January 6 defendants, and describing the door through which The Stack entered the Capitol, around 40 minutes after the Capitol was initially breached.

In the course of these events, approximately 81 members of the Capitol Police and 58 members of the Metropolitan Police Department were assaulted. The Capitol suffered millions of dollars in damage-including broken windows and doors, graffiti, and residue from pepper spray, tear gas, and fire extinguishers deployed both by crowd members who stormed the Capitol and by Capitol Police officers trying to restore order. Additionally, many media members were assaulted and had cameras and other news-gathering equipment destroyed.

[snip]

The Capitol building doors through which CROWL, WATKINS, SANDRA PARKER, YOUNG, STEELE, KELLY MEGGS, CONNIE MEGGS, and the others in their group breached suffered significant damage.

The government implicates the Oath Keepers in this destruction via an aiding and abetting charge.

It’s on that basis that the government initially moved to detain Watkins.

Watkins made her initial appearance in the Southern District of Ohio on January 19, 2021, and the government moved for detention under 18 U.S.C § 3142(f)(1)(A), on the basis that 18 U.S.C. § 1361 is a crime of violence.

While they don’t explain it specifically in that motion (but the government does elsewhere for other defendants, such as for the Proud Boys’ Ethan Nordean), effectively the government is using the damage done to a government building to get presumption of detention under 18 USC 2332b‘s terrorism enhancement.

Peterson argues that the Watkins’ crimes are not crimes of violence.

The offenses charged are not crimes of violence. While violence was committed on January 6, 2021, and those responsible will be held accountable, that is not the issue before the Court in determining whether Ms. Watkins must be held in custody pending the outcome of her case. Rather the question is solely whether or not there are conditions that can reasonably assure the safety of the community and her appearance until this case is resolved in whatever manner it is resolved. Here, the government has not presented any evidence that Ms. Watkins committed any violence. Their evidence is that 40 minutes after the Capitol had been breached, she went to the Capitol and entered the building. By that time, the door had already been opened. The government acknowledges that “the crowd aggressively and repeatedly pulled on and assaulted” the doors of the building to get inside, causing damage. Ms. Watkins is charged with aiding and abetting this offense, but there is no evidence that this was something she had a criminal intent to do. She would have to have shared in the intent to destroy property, when in fact, she attempted to stop people from destroying property.

Peterson argues that the body cameras of some of the cops with whom Watkins interacted will show her trying to prevent damage (though, as noted, Peterson’s explanation for Watkins’ description of the beauty of breaching the Capitol is utterly inconsistent with the actual comments Watkins made, which framed that beauty specifically in terms of fighting cops).

Peterson’s argument here is important, and it will be very compelling for those Oath Keeper defendants who didn’t leave tracks of messages describing efforts to train a militia to take out the federal government even before Trump’s incitement to violence cited by the defense started. While there might be evidence from other Oath Keepers the government is investigating (remember there is a busload of Oath Keepers from NC who were coordinating with the charged co-conspirators, along with the Quick Reaction Force ready to bring additional weapons, as well as a few more known Oath Keepers who directly confronted cops), nothing in the record thus far shows The Stack had a direct role in the damage to the Capitol.

Compare with the Proud Boys to understand the significance of this. In that case, Dominic Pezzola, in fairly obvious coordination with others, was the very first person to break a window allowing the breach of the Capitol. While the other Proud Boys are not yet charged in a conspiracy with Pezzola, there’s every likelihood they will be, in which case a claim that they worked together to break that window will be reasonable and detention claims based on that property damage against co-conspirators substantiated.

In the apparent Proud Boys plot to breach the Capitol and delay the vote count, breaking that window was a fundamental part of the conspiracy.

This is the same problem the government has — and will face on appeal — with Zip Tie Guy Eric Munchel and his mother, Lisa Eisenhart. While mother and son clearly had intent to obstruct the counting of the vote and Munchel came armed with a taser, there’s no evidence that they were working in concert with those who committed the violence or did the damage to the Capitol.

In both the Munchel case and the Oath Keepers case, the government might believe or might have believed they could rely on another terrorism enhancement, attempted kidnapping of  congressional or cabinet targets (18 USC 351), kidnapping of Presidential staff (18 USC 1751a) or hostage taking (18 USC 1203). The government has argued, for example, that Munchel and his mom are the only ones who saw the Capitol Police zip ties sitting out in public and seized them, after which Munchel headed to where the vote was being counted in the Senate chamber, supporting a supposition he would have detained Senators if he had had the chance.

One of the Oath Keepers on the Zello channel Watkins was using (it’s unclear whether the government has IDed this person yet) told her she was executing a citizens arrest based on probable cause for treason and election fraud, implying a plan to detain members of Congress.

An individual directed, “You are executing citizen’s arrest. Arrest this assembly, we have probable cause for acts of treason, election fraud.” WATKINS responded, “We are in the mezzanine. We are in the main dome right now. We are rocking it. They are throwing grenades, they are fricking shooting people with paint balls. But we are in here.” An individual responded to WATKINS, telling her to be safe, and stated, “Get it, Jess. Do your fucking thing. This is what we fucking [unintelligible] up for. Everything we fucking trained for.”

That is, in both cases, there’s reason to suspect the intent was to detain members of Congress — possibly even Mike Pence himself — but that hasn’t been charged against either Munchel and his mom or the Oath Keepers.

The government also may have reason to believe the Oath Keepers conspiracy will ultimately merge with the Proud Boys conspiracy, putting the former on the hook for the violence of the latter.

There’s evidence, for example, that Oath Keeper co-conspirator Thomas Caldwell was trying to coordinate between the militias. By December 23, he described to someone what he knew of the Proud Boys’ plans.

Okay. I got your msg that maybe a whole bunch of you will be going to the rally which is great. [Person Two] and I are going for sure and as of now a bunch of the Oathkeepers from North Carolina whowe hosted here on the farm for the Million Maga march are coming up on one or two buses so that will be neat. I am expecting a big turn out of the Proud Boys (didn’t know until the last march that they had a chapter in Charlestown) and of course the local Vietnamese will probably have at least 2 bus loads like last time. We will keep in touch. I gotta get off my ass and get on parler. I picked up Signal which is a free app that is encrypted talk and text. Thats how I do some secure comms with the Oathkeepers.

On December 30, he reached out to someone in the Three Percenter movement and asked to be included in their plans.

“[A]re you and any of your fellow 3-percenters having any kind of meetings coming up to discuss the 6th of Jan in d.c. or just getting together? I would like to meet some of the guys if you think I ‘m cool enough.” That individual responded, “You can join our group if you want but you have to be veted before you can attend any training events or zoom meetings. Ill get with ya this evening.” In part, Caldwell replied, “Outstanding!”

While there’s no sign yet of a conspiracy charge against the Three Percenters, one of the three people charged together in beating a prone cop, Thomas Lopatic, wore Three Percenter clothes. The father who threatened to kill his kids if they reported his involvement (who mounted the scaffolding used in a flanking move in the breach), Guy Reffitt, is a member. Most intriguingly, Robert Gieswein, who marched with and coordinated with the Proud Boys in the original breach and is also charged with assaulting cops while wielding a baseball bat and some kind of spray, also has ties to the Three Percenters.

There’s also reason to believe that the December MAGA March provided a key networking opportunity in advance of January 6 — for example, Pezzola spent time there with Roger Stone bodyguard, Robert Minuta.

Indeed, one of the likely nodes between the two main militia groups charged with conspiracy is Roger Stone, who was hanging out with both of them. Heck, even Rudy Giuliani, a key proponent of a very different theory of law enforcement involving broken windows, could be such a node.

So it’s possible that as FBI exploits more communications and starts to flip cooperators, they’ll tie the coordinated actions of the various militia together. But they’re not there yet. And until they do that, it’s not clear that the government has the evidence to detain Oath Keeper foot soldiers or random militia sympathizers pre-trial.

The government makes a very good case that the far right — particularly these three groups — have plans to follow up on January 6, plans for which the existing leadership arrested as part of January 6 could play a key role. This is what I’ve pointed to repeatedly (most clearly with Munchel). January 6 was an unprecedented insurgent attack on the country. But that unprecedented attack can look like either civil disobedience involving legally owned weapons or a threat to the Republic. Because of that, it’s not entirely clear how the government’s attempts to detain key figures pre-trial will work out.

The New Recruits on the Front Line on January 6

In addition to adding six more people to the Oath Keeper conspiracy indictment originally charged against Jessica Watkins, DOJ added some new overt acts. Among others, it added training.

Training and recruitment were always part of Watkins’ alleged actions:

On November 9,2020, WATKINS, the self-described “C.O. [Commanding Officer] of the Ohio State Regular Militia,” sent text messages to a number of individuals who had expressed interest in joining the Ohio State Regular Militia. In these messages, WATKINS mentioned, among other things, that the militia had a weekJong “Basic Training class coming up in the beginning of January,” and WATKINS told one recruit, “l need you fighting fit by innaugeration.” WATKINS told another individual, “It’s a military style basic, here in Ohio, with a Marine Drill Sergeant running it. An hour north of Columbus Ohio[.]”

On November 9,2020, WATKINS asked a recruit if he could “download an App called Zello” and stated, “We all use Zello though for operations.”

On November 17 , 2020, when a recruit asked WATKINS for her predictions for 2021 , WATKINS replied, among other statements:

I can’t predict. I don’t underestimate the resolve of the Deep State. Biden may still yet be our President. If he is, our way of life as we know it is over. Our Republic would be over. Then it is our duty as Americans to fight, kill and die for our rights.

and:

[I]f Biden get the steal, none of us have a chance in my mind. We already have our neck in the noose. They just haven’t kicked the chair yet.

The original indictment also described Donovan Crowl attending a training session in December.

On December 12-13,2020, CROWL attended a training camp in North Carolina.

The superseding indictment adds to these details. It includes descriptions of how 54-year old Graydon Young and his 52-year old sister Laura Steele joined the Oath Keepers.

31. On December 3, 2020, YOUNG emailed the Florida chapter of the Oath Keepers with a membership application and wrote, “looking to get involved in helping. . ..”

33. On December 19, 2020, YOUNG wrote to a Facebook group: “Please check out Oath Keepers as a means to get more involved. Recruiting is under way. DM me if you want more info.”

38. On December 26, 2020, YOUNG wrote an email to a Florida company that conducts training on firearms and combat. YOUNG wrote, in part, “l trained with you not long ago. Since then I have joined Oath Keepers. I recommended your training to the team. To that effect, four of us would like to train with you, specifically in your UTM rifle class.”

52. On January 3, 2021, STEELE emailed the Florida chapter of the Oath Keepers with a membership application and wrote, “My brother, Graydon Young told me to submit my application this route to expedite the process.” Later in the day, STEELE emailed KELLY MEGGS and wrote, “My brother, Graydon Young told me to send the application to you so I can be verified for the Events this coming Tuesday and Wednesday.” The following day, STEELE sent an email to an Oath Keepers address, copying both YOUNG and KELLY MEGGS, attaching her Florida Oath Keepers membership application and vetting form, and writing, “I was just requested to send my documents to this email.”

And the arrest affidavit for the Parkers describe them discussing joining Watkins’ militia because their own had largely dissolved.

On December 27, 2020, Bennie Parker texted Watkins, “I may have to see what it takes to join your militia, ours is about gone.” Also on December 27, 202, Bennie Parker texted Watkins, “Yes and you and Sandi and I are like minded you guy [sic] aren’t that far away . . . . “

Effectively, that means that the organized stack (also included as an overt act in the superseding indictment) included at least three people — Crowl, Steele, Young, and Sandi Parker — who had just joined either Watkins’ militia or the Oath Keepers generally (Bennie, who’s 70, is not known to have entered the Capitol).

For all that it attracted media attention for that organized stack, the Oath Keepers weren’t as instrumental to the launch of the coup attempt as the Proud Boys.

But there, too, the militia was relying on new recruits. Dominic Pezzola claims (not entirely convincingly) that the insurrection was just his second action with the Proud Boys (though his first was the December MAGA March, where he was in close proximity to Roger Stone’s Oath Keeper body guard Robert Minuta).

Of more interest are the details Felicia Konold shared about her experience leading the mob.

She did a Snapchat video gleefully describing how much power she had exercised.

I’m watching the new guys

Fuuuck

Dude, I can’t even put into words. I. I. Never.

I never could [unintelligible] have imagined having that much of an influence on the events that unfolded today.

[Laughs]

Dude, people were willing to follow. You fucking lead, and everyone had my back, due, everyone, fucking wall, legit, in the air, up against the fence, [unintelligible], three lines of police, fence, me, not even on the ground, my feet weren’t even on the ground, all my boys, behind me, holding me up in the air, pushing back.

[Laughs]

We fucking did it.

Her arrest affidavit also quotes her on saying she was, “recruited into a fucking chapter from Kansas City,” complete with a challenge coin. The government’s detention memo for William Chrestman describes that he, “readily recruited two individuals from Arizona [Felicia and her brother Cory] to join the group of Kansas City Proud Boys, who then participated in the crime spree on U.S. Capitol grounds.” (It’s likely the case against Chrestman relies on an FBI interview of Konold, which has not been publicly cited.)

And it didn’t stop there. Experts have talked, abstractly, about how January 6 served as a recruiting boon for right wing terrorists. That’s shown tangibly in a detail from Royce Lamberth’s opinion  Zip Tie Guy Eric Munchel granting the government’s motion for his detention. Even as images from Munchel’s antics in the Senate had attracted close focus and on the same day the government obtained a warrant for his arrest, Zip Tie Guy reached out — via Signal — to the Proud Boys in an effort to join up.

There is also no evidence that Munchel is a member of any violent groups, thought the government has presented evidence that Munchel was in contact with a member of the Proud Boys after January 6 and was interested in joining the group. See Signal Chat Tr. (Jan. 9-10, 2021).

On top of being an explicit attempt to prevent Joe Biden from assuming the presidency, January 6 was also a recruitment bonanza, providing both a goal in advance to work towards, but also a networking opportunity permitting in-person recruitment.

The insurrectionists breached the Capitol with flagpoles and bullhorns. And some of the key players leading that breach were recent recruits to the organized militia leading the way. Meanwhile, Stewart Rhodes, Joe Biggs, and Ethan Nordean were watching from relative safety.

Update: I’ve fixed the Stack numbers; I think Crowl may have been training rather than being trained at the came in North Carolina in December.

Most People Suspected of Assaulting Officers in the January 6 Attack Remain at Large

There continue to be efforts to make grand judgments about the January 6 insurrectionists base off a review of the ~207 people who have been charged federally thus far. In my opinion, that’s a mistaken effort, unless the analysis breaks the current arrestees up into groups, first by excluding the 100 or so people just charged with trespassing crimes, who will appropriately be treated as people who engaged in civil disobedience.

Of the rest, there are maybe 25 who are members of an identified militia group. But that group is just a fraction of the total numbers of militia members we should expect will be arrested, because anyone in the Capitol or who planned to halt the vote certification can be charged, and we know of the people who joined Jessica Watkins’ Oath Keepers’ formation, as well as a busload of others from North Carolina. Plus, there are at least 10 more Proud Boys — probably significantly more — identifiable from videos as active participants. In other words, the number of militia members will continue to grow.

There’s another set of people — like Zip Tie Guy (Eric Munchel) and his mother — not known to have ties to militia (though definitely friendly to them), but who took actions that DOJ seems to treat more seriously. So, too, are the people — many of them women — who directed and instigated the crowd.

But there are another two sets of people that the FBI is clearly pursuing, of whom just a fraction have been arrested and identified so far. One is the group of people wanted for assaulting the media (AOM in the FBI’s wanted pictures), which is reportedly being led by a special group at DOJ. There are about 27 people identified in this group right now, none of whom have yet been arrested).

A more obvious one are people who’ve assaulted cops (just three of whom so far have ties to militia groups), identified by AFO at the FBI site. Multiple reports say that around 139 cops were assaulted on January 6. Just 26 people have been charged with either 18 USC 111 for assaulting a cop, or in closely related charges. Meanwhile, there are roughly 134 BOLO images of people who are suspected of assaulting cops, meaning there may be over 100 people suspected of assaulting cops on January 6 at large right now. All told, they would make up over a third of Federal suspects, yet most haven’t been arrested yet.

Here’s my running list of the people who, as of 2/22, had been charged with intimidating or assaulting police. I’ve also tracked how the FBI found them — whether by a tip based off Social Media, a law enforcement tip (this group includes several felons), those FBI BOLO posters, or some other means.

  1. Daniel Page Adams, whose arrest affidavit describes engaging in a “direct struggle with [unnamed] law enforcement officers” (his cousin, Cody Connell, described the exchange as a “civil war”). Tip SM
  2. Zachary Alam, who pushed cops around as he was trying to break into the Speaker’s Lobby. BOLO 79
  3. Wilmar Alvarado, who pushed cops in the mob trying to get in from the West Terrace. BOLO 65
  4. David Blair, who poked a cop with a lacrosse stick with a Confederate flag attached.
  5. Matthew Caspel, who was filmed charging the National Guard. Tip SM
  6. William Chrestman, who is accused of threatening a cop as Proud Boys pushed their way past the original line of defense (charged with 18 USC 115). NM
  7. Bruno Cua, who was filmed shoving a cop to be able to get into the Senate. Tip LE
  8. Nathan DeGrave, whom security cameras caught threatening to fight cops. Network Sandlin
  9. Daniel Egdvedt, a large man who took swipes and grabbed at several officers as they tried to remove him from the Capitol. BOLO 76
  10. Scott Fairlamb, who was caught in multiple videos shoving and punching officers (one who whom is identified but not named); Cori Bush has said she was threatened by him last summer. Tips, including SM
  11. Kyle Fitzsimons, who charged officers guarding the doorway of the Capitol. BOLO 139
  12. Michael Foy, a former Marine who was caught on multiple videos beating multiple cops with a hockey stick. Tip SM
  13. Robert Giswein, who appears to have ties to the Proud Boys and used a bat to beat cops. NM
  14. Alex Harkrider, who after being filmed fighting with police at the door of the Capitol, posted a picture with a crowbar labeled, “weapon;” he was charged with abetting Ryan Nichols’ assault. Tip SM
  15. Emanuel Jackson, whom videos caught punching one officer, and others show beating multiple officers with a metal baseball bat. BOLO 31
  16. Douglas Jensen, the QAnon who chased Officer Goodman up the stairs, got charged with resisting him.
  17. Taylor Johnatakis, charged with 111.
  18. Chad Jones, who used a Trump flag to break the glass in the Speaker’s Lobby door just before Ashli Babbitt was shot and may have intimidated three officers who were pursuing that group. Tip NM
  19. Vitali Gossjankowski, who was interviewed about whether he had tased MPD officer Michael Fanone, causing a heart attack; instead he was charged with tasing CPD officer MM (BOLO 98 — with a second one mentioned)
  20. Edward Jacob Lang, who identified himself in a screen cap of a violent mob attacking cops and who was filmed slamming a riot shield into police and later fighting them with a red baseball bat. Tip SM
  21. Mark Jefferson Leffingwell, whom a Capitol Police officer described in an affidavit punching him. Onsite arrest
  22. Joshua Lollar, who described fighting cops and was caught in pictures showing himself in the front lines confronting cops. Tip SM
  23. Michael Lopatic, who allegedly assaulted some cops with Stager and Sabol, then took a BWC to hide the assault. BOLO 133
  24. Patrick Edward McCaughey III, who was filmed crushing MPD Officer Daniel Hodges in one of the doors to the Capitol. BOLO 62
  25. Jonathan Mellis, who used some kind of stick to try to jab and beat police. Tip SM
  26. Matthew Ryan Miller, who released fire extinguisher in close quarters. Tip SM
  27. Aaron Mostofsky, possibly for stripping a cop of his or her armored vest and riot shield. NM
  28. Ryan Nichols, who was filmed wielding a crowbar and yelling, “This is not a peaceful protest,” then spraying pepper spray against police trying to prevent entry to the Capitol. Tip SM
  29. Jose Padilla, who shoved cops at a barricade, then helped use a Donald Trump sign as a battering ram against them. Tip SM
  30. Dominic Pezzola, a Proud Boy who stole a shield from cops. NM (BOLO 43)
  31. Jeffrey Sabol, helped drag a cop from the Capitol and beat him while prone. LE arrest (erratic driving)
  32. Ryan Samsel, who set off the riot by giving a cop a concussion; he appears to have coordinated with Joe Biggs. BOLO 51 (though not IDed by BOLO)
  33. Robert Sanford, who was filmed hitting Capitol Police Officer William Young on the head with a fire extinguisher. Tip NM
  34. Ronald Sandlin, who tried to wrestle cops to keep the door to the Senate open. MPD tip
  35. Peter Schwartz, a felon who maced several cops. Tip NM (BOLO 120)
  36. Christian Secor, a UCLA self-described fascist who helped shove through some cops to break into the Capitol and then sat in the Senate chamber. Tip NM
  37. Barton Wade Shively, who pushed and shoved some police trying to get into the Capitol, punched another, then struck one of those same cops later and kicked another. BOLO 55
  38. Peter Francis Stager, who was involved in beating a prone cop with a flagpole. Tip SM
  39. Tristan Stevens, who fought cops with a shield and baton. Video
  40. Thomas Webster, who attacked a cop with a flagpole (BOLO 145)

One reason I made this effort was to show that many of these people were identified via other means, and really a big number of people remain on the FBI’s BOLO list.

Unsurprisingly, more people on this list have tried to destroy evidence or flee, meaning it will likely take more time to find them all. There’s also reason to believe that the FBI would prefer to wait to charge these people until they’ve shored up their case.

There are a few more cases that were originally charged as 18 USC 231 that I suspect may get charged as 111 after indictment (which has happened with DeGrave, Sandlin, and Miller), including these.

Craig Bingert (BOLO 105)

Hughes brothers (BOLO 42 and others)

Here are some other notable arrests for which the FBI released a BOLO. Note that the first 30 or so of those posters weren’t targeted to a particular crime, but some — like bullhorn lady Rachel Powell — were identified as AFO in their BOLO but not charged that way.

Joshua Black (BOLO 6)

Steve Malonado (BOLO 20)

William Pepe (BOLO 4)

Matthew Perna (BOLO 73)

Rachel Powell (BOLO 110)

Kevin Seefriend (BOLO 30)

Joshua Wagner (BOLO 34)

The Role of Trump’s Incitement in Providing Violent Foot Soldiers [Updated]

As I’ve covered, in addition to a conspiracy charge tying Zip-Tie Guy’s actions to his mother’s cheering of violence, the government has thus far charged two sets of defendants from organized gangs in the January 6 insurrection — three members of the Oath Keepers and two of the Proud Boys. While Proud Boy Dominic Pezzola is charged with assault for his efforts to steal the police shield he used to bash open a window, his co-defendant William Pepe and most other defendants identified as Proud Boys were not charged with assault (Robert Gieswein, who was indicted on his own, did allegedly assault cops with a baseball bat; he appears in videos with the Proud Boys that day, though was not identified as such in his charging documents).

Thus far at least, the most violent actions from that day aren’t known to have been perpetrated by the right wing militias, members of which appear to have, instead, channeled the violence of others, possibly while pursuing more tactical goals (like locating members of Congress).

That makes the way in which the government describes that other violence important, as it may or may not tie everything together (and tie it back to those who incited the violence).

Take Emanuel Jackson, a 20-year old black guy from DC who was twice caught assaulting cops on video. First, he was caught on film punching a cop, an assault which charging documents describe helped break the police line allowing others to stream in.

The defendant, EMANUEL JACKSON, is observed on U.S. Capitol video surveillance footage making a fist and repeatedly striking a U.S. Capitol Police officer on his person while attempting to forcefully enter the building. United States Capitol Police officers are designated as officers of the United States under 18 U.S.C. 1114.

At approximately 2:48 p.m., the large crowd that was being restrained by law enforcement overpowered the officers and gained entry. One of the first individuals observed entering the doorway is the defendant.

Then, later that day, he attempted to get back into the Capitol wielding a baseball bat.

At 4:50 p.m., the violent and aggressive crowd continued to confront law enforcement at the West Terrace entrance. The crowd was armed with various weapons and multiple individuals are observed assaulting law enforcement in the entranceway. The defendant is clearly observed in surveillance video of this entrance, wearing the same clothing described above and observed in earlier footage, and armed with a metal baseball bat. The defendant is observed repeatedly striking a group of both U.S. Capitol and Metropolitan Police Department uniformed officers with the baseball bat.

These two alleged assaults happening two hours after each other, the first unarmed, the second armed, attest to the sustained violence of the riot, as well as a possible intensification of it as violence came to incorporate additional weapons. Over those two hours, Rudy Giuliani was calling Senators asking for delay.

While Jackson did have a backpack on him during the riot, there’s nothing in Jackson’s file that suggests any organizational affiliation with known extremist groups (nor is there any explanation of why a 20-year old black guy would ruin his life for Donald Trump). According to a government detention motion, in an interview, Jackson described attending Trump’s rally and going from there to the Capitol.

During the defendant’s post-arrest interview, he clearly articulated that he attended former President Trump’s rally earlier that day, and that he joined the thousands of individuals who descended on the U.S. Capitol to protest the election results.

That ties his later actions to the events at the rally.

That’s important, because Jackson confessed that his goal in storming the Capitol was to delay the counting of the vote (and he was charged with obstructing an official proceeding as a result, which itself carries a steep sentence if violence is involved).

During the interview, the defendant stated that his purpose in joining the violent mob was to enter the U.S. Capitol and disrupt the vote count of the Electoral College as it met to certify the results of the 2020 Presidential Election. Thus the defendant combined his criminal intention to interfere with the functioning of Congress with multiple violent assaults – one with a dangerous weapon – on the law enforcement officers trying to protect that function.

The detention motion describes how his initial assault made it possible for him and others to storm the building.

The defendant was part of a group that tore out windows, ripped open the blocked entrance, and then physically attacked law enforcement in an effort to gain entry. The law enforcement officers are in full uniform with the word “police” clearly visible. At approximately 2:48 p.m., the defendant is observed physically striking a law enforcement officer with his fist. The punching continues for several strikes and seconds later, the mob forces their way into the entranceway and overruns the group of law enforcement officers. The defendant’s assaultive behavior in part allowed the large mob of individuals to successfully breach the U.S. Capitol, putting additional law enforcement officers and members and staff of Congress at grave risk. The defendant’s actions allowed other rioters to commit multiple other criminal acts inside the building.

So at least on this thin record, it appears that Jackson went to the rally, got riled up to disrupt the certification of the vote, and then took repeated violent actions in service of doing just that. As the detention motion describes, Jackson was one spoke in a wheel that together thwarted democracy.

The defendant was a spoke in the wheel that caused the historic events of January 6, 2021,

On January 27, Jackson’s attorney asked for a one month continuance, with the government’s consent. That generally indicates the defendant is preparing to plead before indictment (which isn’t surprising given that, before he got a lawyer, Jackson confessed to his assaults).

That means it’s possible that by the time Trump’s impeachment trial starts, Emanuel Jackson will have pled guilty to being inspired by Donald Trump to halt the vote certification, walking down Pennsylvania Avenue and then assaulting two cops in an effort to help Trump steal the election.

Update:  Hunter Seefried, whose dad was the one caught carrying a Confederate flag through the Capitol, played a key role in cleaning out the window many streamed through. The father and son pair marched over after listening to Trump.

Defendant Kevin Seefried told law enforcement that he had traveled with his family from Delaware to the District of Columbia to hear President Trump speak and that he and Hunter Seefried participated in a march from the White House to the Capitol led by an individual with a bull horn.

Finally, I have reviewed video footage posted to Twitter which shows Hunter Seefried punching out glass in a window in the Capitol complex after people adjacent to him in the crowd broke it with a wooden 2 x 4. Kevin Seefried confirmed to law enforcement agents that Hunter Seefried was asked by an individual unknown to the Seefrieds to assist with clearing the window because Hunter Seefried was wearing gloves. After Hunter Seefried complied, people from the crowd outside, to include the Seefrieds, were able to access the interior of the Capitol Building.

Barton Wade Shively, a former Marine who admitted to assaulting several cops, also came down for the rally and then walked to the Capitol afterwards.

During the interview, SHIVELY admitted to driving to Washington, D.C. with friends to attend the Trump rally on January 6, 2021. SHIVELY further stated that he and his friends walked to the U.S. Capitol grounds and that a significant number of protestors broke through the first set of barricades. After which, SHIVELY explained that he was in the back of the crowd, but once the barricades were broken down by other rioters, SHIVELY walked over the broken-down police barriers and up the U.S. Capitol steps where law enforcement officers were standing protecting the U.S. Capitol. SHIVELY stated that when he confronted the law enforcement officers, he was pushed back, SHIVELY admitted he became angered at that time. SHIVELY admitted “I got caught up in the moment.” and grabbed a police officer by his jacket and began yelling at the officer.

[snip]

During the interview with agents, SHIVELY admitted to a second incident physical and assaultive encounter with law enforcement officers. SHIVELY stated he was walking down a line of officers who were protecting the U.S. Capitol from rioters, when an officer repeatedly pushed SHIVELY with his baton and commanded SHIVELY to move away. SHIVELY admitted to punching the officer on the officer’s riot helmet.

A Tale of Two Zip-Tie Guys: Criminal Protestor or Armed Insurrectionist?

There was a fair amount of disbelief last week when Eric Munchel, better known as Zip-Tie Guy, was given bail by a magistrate judge in Tennessee. But as I noted, the evidence as presented to Judge Chip Frensley did not allege preplanning and did not show Munchel engaged in violence. As laid out in the detention memo, Munchel owns an arsenal of guns, but they are all legal. As such, Frensley’s decision was probably correct.

As I noted in an update to that post, however, the evidence prosecutors presented to obtain the emergency stay of Munchel’s release did include an act of violence, targeted at Bloomberg reporter William Turton, who filmed Munchel in the Grand Hyatt after the riot.

On the evening of January 6, 2021, after the insurrection, an individual posted a video of the Grand Hyatt hotel lobby on Twitter. The person then posted a message that read: “After I took this video, several Trump supporters harassed me and tried to follow me to my room. One accused me of being ‘antifa.’3 Hotel security intervened and moved me to new room. What a weird day.” See https://twitter.com/WilliamTurton/status/1346980284252745729 (Last accessed on January 23, 2021). The person added: “The Trump supporters demanded that I delete the video. One woman flashed her taser at me, and threatened to mace me.” See https://twitter.com/WilliamTurton/status/1347024856416714752 (last viewed January 23, 2021). Two days later, on January 8, based on another video from the Grand Hyatt posted to social media, the person identified the defendant as “one of the people in the hotel lobby who demanded I delete the video, put his hands on me, and screamed at me . . . .” See https://twitter.com/WilliamTurton/status/1347699125408641024 (last viewed January 23, 2021); https://twitter.com/WilliamTurton/status/1347699345345417217 (last viewed January 23, 2021). Evidence of this encounter was not presented at the preliminary and detention hearing in the Middle District of Tennessee.

There’s a more important difference between the detention motion submitted in Tennessee and the one submitted in DC, beyond the fact that one was presented in a conservative state and the other was presented to a Democratically appointed judge in the city targeted in the insurrection.

The initial detention motion describes Munchel’s actions as those of a protestor who committed crimes in the process of protesting, while threatening violence.

The United States of America, by and through its attorney, the United States Attorney for the Middle District of Tennessee, respectfully files this memorandum in support of pre-trial detention. The defendant, Eric MUNCHEL, traveled to Washington, D.C. to attend the “Stop the Steal” rally on or about January 6, 2021, where he intended to protest the outcome of the 2020 Presidential election. MUNCHEL was prepared for conflict: as he told a reporter, he was ready to “rise up” and “fight if necessary.” After the rally concluded, MUNCHEL—who was dressed in tactical gear and carried a taser on his hip, and stashed other “weapons” in a tactical bag outside the Capitol—unlawfully entered the U.S. Capitol along with a mob of rioters who smashed windows and broke through doors. MUNCHEL gleefully acquired several sets of plastic handcuffs as he walked through the Capitol and entered the Senate chamber, where only moments earlier the Vice President of the United States was certifying the results of the 2020 Presidential election. In the Senate gallery, MUNCHEL stood with a crowd whose members shouted “Treason!” and lamented the disappearance of lawmakers from the chamber moments earlier. MUNCHEL’s conduct here was dangerous and extremely serious. This Court should adopt the recommendation of the Pretrial Services Office and detain MUNCHEL pending trial. [my emphasis]

The first paragraphs of the emergency motion, by contrast, describe him as one of a concerted pack of insurgents who successfully used terror to halt constitutionally mandated proceedings.

Armed with a taser and clad for battle in fatigues, a tactical vest, combat boots, gloves, and a gaiter that revealed only his eyes, the defendant, Eric Munchel, stormed the United States Capitol on January 6, 2021. Upon penetrating the building through a door breached by insurgents, the defendant grabbed a handful of Capitol Police flexicuffs and exclaimed: “Zip ties. I need to get me some of them mother—-s!” Then, with his co-conspirator, Lisa Eisenhart—who also wore a tactical vest and took flexicuffs—the defendant joined a group of insurgents searching for Members of Congress. Surrounded by insurgents exhorting veiled threats such as “Treason!”, “Anybody home?”, “They’re cowards!”, and “Are you afraid?”, the defendant infiltrated the Senate chamber—only minutes after the Senate body, including the Vice President of the United States, had been evacuated. The invasion halted the proceedings of a Joint Session of Congress, which had convened to certify the Electoral College vote as required by the Twelfth Amendment. [my emphasis]

A later paragraph discounts the claim that Munchel intended to do nothing more than protest.

First, the nature and circumstances of the offense involve fear, intimidation, and violence— directed at law enforcement, elected public officials, and the entire country. The defendant can make no serious claim that he went to the Capitol on January 6 intending to engage in peaceful protest or civil disobedience. Instead, the evidence supports the conclusion that he intended to contribute to chaos, obstruct the Electoral College certification, and sow fear. This is illustrated by the defendant’s preparation before reaching the Capitol and expressly stated intent: the defendant dressed in combat attire from head to toe; armed himself with a taser (and, appearing from his own cell phone video and audio recording, a more dangerous weapon); and told a reporter that his intent in going to the Capitol was “a kind of flexing of muscles” and that he was ready to “fight if necessary.” Once at the Capitol, the defendant’s conduct was consistent with that expressly stated intent: the defendant helped and encouraged other insurgents to ascend a wall to access the Capitol; exclaimed that he was “F—ing ready to f–k s–t up”; affirmed cries of “Treason” by other insurgents; responded to the chaos by exclaiming, “I guess they thought we were playing!”; stormed into the Capitol through a breached door; grabbed Capitol Police plastic flexicuffs, comprehending that they are instruments of restraint and kidnapping; marched throughout the Capitol searching for Members of Congress who he believed had committed “Treason”; and infiltrated the Senate chamber. The nature and circumstances of the alleged offenses all indicate forethought and specific intent to obstruct a congressional proceeding through fear, intimidation, and, if necessary, violence. These threads—planning, forethought, intent—are all indicative of a capacity and willingness to repeat the offense and pose a clear threat to community safety. As the defendant himself told The Times reporter, “[t]he point of getting inside the building [was] to show them that we can, and we will” (emphasis added).

As with her son, the government told two different stories about the actions of Munchel’s mother, Lisa Eisenhart, who like him was first granted bail then detained on an emergency motion.

The introductory paragraph of her TN detention motion mentions her boast that she was willing to die rather than live under oppression. But even where it reviews her language in more depth later in the filing, it portrays as it as mere, “disillusionment with the outcome of the 2020 Presidential election,” not a willingness to overthrow the Constitutional order because of it.

The defendant, Lisa EISENHART, traveled to Washington, D.C. to attend the “Stop the Steal” rally on or about January 6, 2021, where she intended to protest the outcome of the 2020 Presidential election. EISENHART was prepared for conflict: as she told a reporter, she would rather “die” and “fight” than “live under oppression.”

[snip]

EISENHART also made statements evincing an intent to engage in violent conduct, and even sacrificing her own life, because of her disillusionment with the outcome of the 2020 Presidential election. [my emphasis]

And as the emergency motion for her son described his own act of violence, Eisenhart’s emergency detention motion describes her approval of the violence around her. (Munchel’s federal defender got prosecutors to admit at his bail hearing that his mom voiced more overt support for violence than he espoused; he even pointedly called out, “Don’t break shit,” … “No vandalizing shit”.)

Down the road, prosecutors will describe these statements from her as one after another agreement with others to engage in violent insurrection.

The nature and circumstances of the offense involve fear, intimidation, and violence— directed at law enforcement, elected public officials, and the entire country. The defendant can make no serious claim that she went to the Capitol on January 6 intending to engage in peaceful protest or civil disobedience. Instead, the evidence supports the conclusion that she intended to contribute to chaos, obstruct the Electoral College certification, and sow fear. Specifically, Eisenhart, dressed for combat in a tactical or bulletproof vest, stormed the Capitol building with other insurgents and:

  • carried dangerous “weapons” onto Capitol grounds and stashed them before storming the Capitol building, because “We’re going straight to federal prison if we go in there with weapons”;
  • encouraged insurgents to climb a Capitol wall and storm inside, exhorting: “Yeah, go up in there. You can go up in there now”;
  • encouraged Munchel to go inside the Capitol despite knowing that Capitol Police were trying to keep insurgents out—including by using tear gas (“we’re going in”; “the [tear] gas isn’t bad”);
  • cheered on another insurgent who she understood to have “punched two of them in the face”—likely a reference to Capitol Police;
  • celebrated as her “best day” an assertion by another insurgent that Members of Congress had been tear gassed (“That is [unintelligible] my best day, to know they got tear gassed.”);
  • grabbed Capitol Police flexicuffs from inside the Capitol and searched for Members of Congress alongside other insurgents, together shouting threatening chants of: “Anybody home?”; “They went into the tunnels”; “Where’d you go?”; “They’re cowards!”; “Are you afraid?”; and “Treason!”; and
  • cognizant of the severity of her and Munchel’s crimes, advised before leaving the Capitol: “Don’t carry the zip ties, just get ‘em out of their hand, out of [unintelligible] get ‘em out of our hands.”

The offense circumstances illustrate a profound disrespect for the rule of law and law enforcement, indicating that the defendant’s unwillingness and incapacity to respect court-imposed conditions and demonstrating that no release condition will reasonably assure the community’s safety.

Both emergency motions for detention include a paragraph describing the danger mother and son pose as an unprecedented threat to democracy.

Finally, as we asserted in the Munchel appeal, it is difficult to fathom a more serious danger to the community—to the District of Columbia, to the country, or to the fabric of American Democracy—than the one posed by armed insurrectionists, including the defendant and Munchel, who joined in the occupation of the United States Capitol. Every person who was present without authority in the Capitol on January 6 contributed to the chaos of that day and the danger posed to law enforcement, the Vice President, Members of Congress, and the peaceful transfer of power. The defendant’s specific conduct aggravated the chaos and danger. It was designed to intimidate Members of Congress and instigate fear across the country. The defendant’s active participation in a violent insurgency on the Capitol designed to undermine the democratic process poses a serious and ongoing danger to the community that no release condition can reasonably assuage. As co-conspirator Munchel told The Times reporter: “[t]he point of getting inside the building [was] to show them that we can, and we will” (emphasis added); and as the defendant maintained, she would rather “die” and “fight” than “live under oppression.” Only detention mitigates the grave danger the defendant and Munchel pose. [my emphasis]

I expect readers of this site will agree with the latter emergency motions, and I definitely agree about the threat the insurrection posed to democracy.

But it is critical to understand that legally, both motions are true.

The difference lies in the additional overt act including in Munchel’s emergency motion and the import ascribed to Eisenhart’s statements in hers. More importantly, the difference lies in the effect of their actions — and the actions of others that, videos show, they encouraged: to halt a constitutionally mandated act using terror.

Defense attorneys will argue, the threats to Turton notwithstanding, that there is no definitive evidence that Munchel or Eisenhart intended to engage in violence at the Capitol (and in Munchel’s case, they’ll cite his own statements warning against destruction). Outside the context of a concerted plan to prevent the certification of the election, one can make a compelling case that Munchel and Eisenhart are nothing more than protestors who broke the law.

It’s possible that prosecutors in Tennessee didn’t include that because they view the election outcome differently or simply view these two as individual defendants outside the context of the larger goal. It’s possible they’re simply not privy to much of the evidence that gives prosecutors in DC confidence they’ll be able to prove a more concerted effort, a concerted effort that Munchel and Eisenhart both willingly took a part in. It’s likely that DC prosecutors aren’t including other prosecutors in plans to build the sedition charge mentioned in the emergency motions.

The evidence amassed so far subjects the defendant to felonies beyond that with which he has been charged so far, including obstructing Congress, interstate travel in furtherance of rioting activity, sedition, and other offenses.

But the successful prosecution of Zip-Tie Guy and his mom will depend on prosecutors’ success at making that larger case and showing that both of them agreed to the larger goal.

I’ve alluded to, several times, how the case against the Hutaree Militia foundered based on two things: prosecutors’ reliance on speech as proof that each member of the conspiracy entered into a goal of attacking the US government, and insufficient proof that the federal government itself was the target.

The lesson is important background for the January 6 insurrection. In her opinion throwing out most of that prosecution, Judge Victoria Roberts emphasized the meticulous scrutiny that a charge of seditious conspiracy must give to speech acts.

Where a conspiracy implicates First Amendment protections such as freedom of association and freedom of speech, the court must make a “specially meticulous inquiry” into the government’s evidence so there is not “an unfair imputation of the intent or acts of some participants to all others.” United States v. Dellinger, 472 F.2d 340, 392 (7th Cir. 1972). It is black-letter law that “[a] defendant cannot be convicted of conspiracy merely on the grounds of guilt by association, and mere association with the members of the conspiracy without the intention and agreement to accomplish an illegal objective is not sufficient to make an individual a conspirator.” Lee, 991 F.2d at 348. Likewise, mere presence at the scene does not establish participation in a conspiracy. United States v. Paige, 470 F.3d 603, 609 (6th Cir. 2006).

The Government has consistently maintained that this case is not about freedom of speech or association, but about the specific acts of violence alleged in the Indictment. The Court relied upon these representations in denying Defendants’ pretrial motions for a jury instruction on the Brandenburg case, and the heightened strictissimi juris standard for sufficiency of the evidence (Docs. 610, 618). However, much of the Government’s evidence against Defendants at trial was in the form of speeches, primarily by Stone, Sr., who frequently made statements describing law enforcement as the enemy, discussing the killing of police officers, and the need to go to war. Indeed, at oral argument on March 26, 2012, the Government asked the Court to find the existence of a seditious conspiracy based primarily on two conversations involving Stone, Sr., and others — the first on August 13, 2009, and the second on February 20, 2010.

And she cited precedent that requires that seditious conspiracy must target the US government itself (the Hutaree allegedly hoped to spark a larger rebellion by killing some cops — not far different from what the Boogaloo espouse).

In Anderson v. United States, the Eighth Circuit applied Baldwin and dismissed a seditious conspiracy charge where the force sought to be exerted was “not against those whose duty it should be to execute the laws.” 273 F. 20, 26 (8th Cir. 1921). Defendants were charged with seditious conspiracy for conspiring to prevent, hinder and delay by force, various laws of the United States, including the congressional declaration of war with Germany, and laws relating to conscription. Id. at 22-23. In furtherance of the seditious conspiracy, the Indictment alleged that the defendants circulated books and periodicals calling for strikes and the overthrow of the capitalist system and criticizing the war and individuals who joined the armed services. Id. at 24- 24.

Relying on Baldwin, the Court stated that for the Indictment to sufficiently charge seditious conspiracy, the purpose of the conspiracy must be “the exertion of force against those charged with the duty of executing the laws of the United States . . . .” Id. at 26. The court then held that the Indictment was insufficient because the “force was to be exerted, not against those whose duty it should be to execute the laws, and while attempting to do so, but its application was to be made against industrial and commercial activities by lawless acts during strikes for the purpose of accomplishing alleged socialistic ends . . . .” Id.

The law is clear that seditious conspiracy requires an agreement to oppose by force the authority of the United States itself. It must be an offense against the Nation, not local units of government. See Commonwealth of Pennsylvania v. Nelson, 350 U.S. 497, 505 (1956) (“Sedition against the United States is not a local offense. It is a crime against the Nation.” (citation and quotation marks omitted)). Any overt act in furtherance of seditious conspiracy must further a common plan to oppose the United States by force; otherwise, “the seditious conspiracy statute would expand infinitely to embrace the entire agenda of anyone who violated it . . . .” United States v. Rahman, 854 F. Supp. 254, 260 (S.D.N.Y. 1994); see also Haywood v. United States, 268 F. 795, 800 (7th Cir. 1920) (“[The seditious conspiracy statute] should not be enlarged by construction.”).

In that case, Roberts found that a plan to murder cops did not amount to seditious conspiracy.

The discussions of seditious conspiracy in Baldwin and Anderson are important to this case; while the Government presented evidence of vile and often hateful speech, and may have even shown that certain Defendants conspired to commit some crime – perhaps to murder local law enforcement — offensive speech and a conspiracy to do something other than forcibly resist a positive show of authority by the Federal Government is not enough to sustain a charge of seditious conspiracy. A conspiracy to murder law enforcement is a far cry from a conspiracy to forcibly oppose the authority of the Government of the United States.

The attack on the Capitol is an entirely different matter from that attempt by right wing militia members to spark an uprising in 2010. The targets of the January 6 conspiracy included the first and second in line to the Presidency, Mike Pence and Nancy Pelosi. Among the cops who were targeted — including the one who was murdered — were Capitol Police. The act that rioters were impeding was the execution of a duty laid out in the Constitution, certifying the Presidential election.

There’s little question that this amounts to a conspiracy against the government of the United States.

Nevertheless, as prosecutors tell one after another story about the individuals involved, they are going to have to make it clear, in each case, how each individual’s actions and stated goals tie to that larger effort to overthrow the constitutional working of the US government.

Update: Corrected where in succession Pence and Pelosi were.

Zip-Tie Guy’s Release on Bail Is Why Donald Trump Must Be Prosecuted

Yesterday, a magistrate judge in Nashville, Chip Frensley, gave Eric Munchel bail. He’s the guy who has become known as “Zip-Tie Guy” because of a picture of him taken in the Senate during the January 6 coup attempt, showing him dressed in tactical gear and holding zip ties.

The government will appeal the decision to DC Chief District Judge Judge Beryl Howell over the weekend, and thus far she has granted such requests from the government, so it’s certainly possible he will ultimately be held.

The bail hearing demonstrates one of the problems with the government’s investigation and prosecution going forward, one which demonstrates the necessity of prosecuting former President Donald Trump (see also this live tweet of the hearing and Politico’s account).

Munchel got charged, along with his mom, Lisa Marie Eisenhart, with the two trespassing charges used for most defendants, conspiracy among themselves, along with obstructing law enforcement during civil disorder.

The filing supporting detention described that Munchel must be found guilty of attempting to impede law enforcement during civil disorder.

To prove a violation of 18 U.S.C. § 231(a)(3), the government must show (1) that a civil disorder existed at the time of any alleged violation; (2) that such civil disorder was resulting in interference with a federally protected function; (3) that one or more law enforcement officers were lawfully engaged in the lawful performance of their official duties incident to and during the commission of such civil disorder; (4) that the defendant attempted to commit an act for the intended purpose of obstructing, impeding, or interfering, either by himself or with someone else, in a violent manner with such law enforcement officer or officers; and (5) that such attempt to act was done willfully and knowingly. United States v. Casper, 541 F.2d 1275, 1276 (8th Cir. 1976).

The evidence doesn’t show Munchel doing that — though shows his mom yelling at the cops. Indeed, the judge in the hearing described video showing him being deferential to cops inside the Capitol. The fact he grabbed the zip ties and said he wanted to seize the Senate gavel suggests he targeted Congress, not the cops.

What the evidence does show is Munchel is a gun nut who wanted to terrorize lawmakers. His mom spoke more explicitly of violent revolution.

“It was a kind of flexing of muscles,” said Munchel, who wore a bulletproof vest and complained that police confiscated his Taser during the riot. “The intentions of going in were not to fight the police. The point of getting inside the building is to show them that we can, and we will.”

Preparing for their 10-hour drive home, the 30-year-old clamoured for greater organisation in the next steps to fight against Biden’s America. He worried that many pro-Trump warriors were individualists and lamented that potential leaders in the Make America Great Again (Maga) movement faced difficulty in rallying troops due to banishment from mainstream social media sites. “Our biggest struggle is getting together, knowing where to go, what to do and who to go to,” said Munchel despondently.

His mother agreed: “The left has everything: the media, organisations, the government. We have to organise if we’re going to fight back and be heard.” Eisenhart, a nurse, added that a violent revolution has long been on the cards thanks to last year’s racial justice protests, anti-police riots and “unnecessary” coronavirus lockdowns.

“This country was founded on revolution. If they’re going to take every legitimate means from us, and we can’t even express ourselves on the internet, we won’t even be able to speak freely, what is America for?” said a teary-eyed Eisenhart, biting into a hotdog. “I’d rather die as a 57-year-old woman than live under oppression. I’d rather die and would rather fight.”

The most compelling piece of evidence that Munchel could have coordinated with a more organized plot involves an exchange he had with the Oath Keepers as he headed into the building.

As MUNCHEL and Eisenhart make their way to the Capitol, they encounter several members of the “Oathkeepers,” a militia group that is distrustful of government authority. One of the Oathkeepers says, “There’s 65 more of us coming.” MUNCHEL, when he recognizes them, says in affirmation, “Oathkeepers,” and bumps fists with one of the men.

But that does’t show pre-planning nor does it tie his possession of the zip ties to any plan the Oath Keepers had.

The government clearly either fears that Munchel will engage in violence or it wants to make sure it keeps its showy zip-tie guy on ice to include kidnapping among the parts of the plot they’ll eventually lay out. But the judge is right that, thus far, the government hasn’t shown evidence that he coordinated with anyone except his mom.

Silent in all this (because, unlike the other kitted-out guy in the Senate that day, Munchel was not shown to have told a reporter that he responded to the call of the then-President to come to DC to engage in that show of force) is the framework of Trump’s calls to overturn an election. The evidence even suggests that Eisenhart claims to have believed Trump’s Big Lie of a stolen election (and it may well be true that she does believe it). But that’s the single factor that makes Zip-Tie Guy’s actions, with his mom, dangerous. He wanted to scare lawmakers, and he wanted to do it in the context of a plea to illegally retain power. A plea from Donald Trump.

Until such time as prosecutors are ready to argue that this show of terrorism was intended to support false claims of election theft mobilized in an attempt to overthrow the Constitutional government of the United Staes, judges are going to find that guys like Munchel owned their arsenals legally and — while violating specific laws protecting the Capitol and the counting of the votes — do not pose a grave threat to our country.

I’m not saying I believe that. I’m not even sure Frensley does.

But absent closer ties to the Oath Keepers (who did clearly pre-plan), the thing that makes the raid on the Capitol especially dangerous, the thing that makes Munchel’s grab for the gavel and the zip-ties criminal, is Trump’s illegal plan. And so, until prosecutors start naming Trump as a co-conspirator, start naming the Big Lie of a stolen election as the motivating cause of the violence, guys like Munchel are going to continue to get bail.

Update: Mirriam Seddiq did a video talking about how conspiracy works in US law, as applied to Trump’s incitement of an insurrection that lays out how this should be presented to judges.

Update: Over the weekend, Beryl Howell granted the government’s emergency motion for detention. The motion included an additional allegation against Munchel, that he had assaulted Bloomberg journalist William Turton.

On the evening of January 6, 2021, after the insurrection, an individual posted a video of the Grand Hyatt hotel lobby on Twitter. The person then posted a message that read: “After I took this video, several Trump supporters harassed me and tried to follow me to my room. One accused me of being ‘antifa.’3 Hotel security intervened and moved me to new room. What a weird day.” See https://twitter.com/WilliamTurton/status/1346980284252745729 (Last accessed on January 23, 2021). The person added: “The Trump supporters demanded that I delete the video. One woman flashed her taser at me, and threatened to mace me.” See https://twitter.com/WilliamTurton/status/1347024856416714752 (last viewed January 23, 2021). Two days later, on January 8, based on another video from the Grand Hyatt posted to social media, the person identified the defendant as “one of the people in the hotel lobby who demanded I delete the video, put his hands on me, and screamed at me . . . .” See https://twitter.com/WilliamTurton/status/1347699125408641024 (last viewed January 23, 2021); https://twitter.com/WilliamTurton/status/1347699345345417217 (last viewed January 23, 2021). Evidence of this encounter was not presented at the preliminary and detention hearing in the Middle District of Tennessee.

It also more aggressively described what Munchel had done as insurrection.

Finally, it is difficult to fathom a more serious danger to the community—to the District of Columbia, to the country, or to the fabric of American Democracy—than the one posed by armed insurrectionists, including the defendant, who joined in the occupation of the United States Capitol. Every person who was present without authority in the Capitol on January 6 contributed to the chaos of that day and the danger posed to law enforcement, the Vice President, Members of Congress, and the peaceful transfer of power. The defendant’s specific conduct aggravated the chaos and danger. It was designed to intimidate Members of Congress and instigate fear across the country. Make no mistake: the fear the defendant helped spread on January 6 persists—the imprint on this country’s history of a militia clad insurrectionist standing over an occupied Senate chamber is indelible. Only detention mitigates such grave danger.

It makes it clear Munchel may be facing additional charges.

The evidence amassed so far subjects the defendant to felonies beyond that with which he has been charged so far, including obstructing Congress, interstate travel in furtherance of rioting activity, sedition, and other offenses. These offenses carry substantial penalties, which incentivizes flight and evading law enforcement—a thought that the defendant already appears to have contemplated by virtue of avoiding his residence and workplace, terminating his Facebook account, and leaving his cell phone with an associate.