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The Crossroads of Insurrection: The Senate Chamber Insurrection Defendants

In a recent motion opposing relaxing Larry Brock’s release conditions, the government revealed that it, “is continuing to investigate the Defendant for the offense of obstruction under Title 18 United States Code Section 1512(c).” Brock is the retired Lieutenant Colonel who, like Eric Munchel, brought Zip Ties onto the Senate floor. In spite of Brock’s online writings shortly after the election predicting that, ““Fire and blood will be needed soon,” Brock was charged only with misdemeanor trespassing for his role in the insurrection.

Since then, the Senate has been a locus of increased attention, as the government arrests more people with video of what happened there and rounds up the co-conspirators of those they arrested months ago.

That increased attention provides a way to look at the events of January 6 via a different lens. Rather than focusing on the most spectacular defendants — no one is more spectacular than Jacob Chansley, but Eric Munchel’s actions attracted attention away from others — by focusing on who breached the Senate, we can understand some of the logistics that allowed it to be breached. And by whom.

The picture we get, as a result, is a crossroads of the really aggressive participants of the January 6 insurrection, with cultists, militia members, GOP operatives, and curious tourists all represented.

I am assuredly not saying there was or is a conspiracy that joins all these people. While there are some pregnant unanswered questions about individuals like Leo Bozell, Bradley Barnett, Jacob Clark, and Patrick Montgomery — as well as conduct like assaults charged against Montgomery and DJ Shalvey that remain undescribed — there’s absolutely no reason to believe this was all coordinated. … Beyond, of course, the President calling out the mob on Mike Pence.

A focus on the Senate is useful, though, to show how the multiple breaches interacted. The first people who came in the West door (including the Hughes brothers), the Northwest door (including Patrick Montgomery and his buddies), and the East door (which is how Joe Biggs got to the Senate), all made it to the Senate before it was secured. Indeed, a number of people who made it to the Senate (like Ronnie Sandlin) were instrumental in opening the East doors from inside, before they reached the Senate. So looking at who got to the Senate how helps to clarify how all the three main breaches worked in tandem, and in fairly quick succession.

It’s also a reality check about the relative importance of various groups who breached the Capitol. While this is still an impartial picture, the narrative to date suggests that QAnon managed to get far more of their adherents to the Senate floor than either the Proud Boys (Joe Biggs and Arthur Jackman showed up after getting in with the help of people inside) or the Oath Keepers (Kelly Meggs and Joshua James showed up too late). QAnon held a prayer on the dais while the militias were still breaching doors.

There are a number of people who remain — publicly at least — unidentified, such as two of Patrick Montgomery’s associates or someone who shadowed Bozell.

This post, a description of those who breached the Senate organized alphabetically by the most important participant, is just a baseline from which to understand more about who go to the Senate and how.

Update: In comments a few people have explained what significance I attribute to continuances a few of these defendants, like Leo Kelly, have. It means several things. First, it means the person in question is immediately moving to discuss a plea deal. One of the defense attorneys here seems to have chosen to really aggressively seek such continuances (Kira West is a noticed attorney on three of these defendants: Leo Kelly and Christine Priola, both of whom got continuances before being formally charged, and Tony Mariotto, who was charged by information; in the latter two cases, though, West sponsored outside attorneys Pro Hac Vice). But from a narrative perspective, it means our understanding of what the government knows about the defendant is frozen at the moment the FBI agent writes an arrest affidavit, whereas with defendants who get detained and then challenge that detention, which include a high percentage of the defendants who made it to the Senate, we often learn what the government found on the person’s cell phone. One of the points I attempted to make here is that for a variety of reasons, the story told in the court filings leaves out significant and, in some cases, intentional gaps in the revelation of what the government knows.

Note: This is based of my own imperfect list of who was described as being where. Plus, I suck at visual identifications. Please let me know what I’ve missed in comments. 

Thomas Adams

Per his arrest affidavit, Thomas Adams traveled from Springfield, IL, and claims to have just followed the mob with an unnamed friend (probably Roy Franklin, who was interviewed along with him the day of the insurrection) up the scaffolding to what I believe is the Northwest door. The cops he saw after he entered the building “weren’t really doing much … just waiting to see if we’d try to push past them.” Soon thereafter, he entered the Senate, where he saw Jacob Chansley, who he thought was “hilarious.” This is a photo of Adams in the Senate.

Adams took a lot of video while he was in the Capitol, including footage from the Senate floor the government may be particularly interested in, including this image.

Adams was arrested on April 13, over three months after he appeared in an article describing his exploits that day, during a period when the government seemed to be arresting a lot of people who took a lot of video of key scenes. He was charged with trespassing and obstructing the vote count.

Tommy Allen

Tommy Allen flew to DC from Rocklin, CA. He was picked up on video recordings in the Senate from 3:03 to 3:10PM on January 6. In addition to this picture, he was filmed taking papers from the clerks’ desks at the front of the Senate and putting them in his back left pocket, as well as absconding with the American flag.

He would later tell a journalist he took a letter from Trump to Mitch McConnell from the then-Majority Leader’s desk.

Allen was arrested on January 22 after first a stranger and then someone who’d “interacted with him on a number of occasions” alerted the FBI to his Facebook posts, which he tried to delete after he returned home. The latter witness also told the FBI that he or she had heard that Allen had destroyed the documents he took in his backyard.

Allen was charged with trespassing and (probably misdemeanor) theft; after he was formally charged with the same charges on February 2, he wasn’t arraigned until April 8.

Bradley Bennett and Rosie Williams

At some point on January 6, QAnoner Bradley Bennett and his partner Rosie Williams seemed to pray with DJ Shalvey and two others.

And they appear to have gotten in the Capitol the same way that Andrew Griswold did (so probably the East entrance, after those doors were opened from inside). They also made it to the Senate.

Those images would seemingly expose the couple mostly to trespass charges — and indeed, that’s all Rosie got charged with, both on their arrest complaint and their indictment.

But from the start, Bennett responded to his pursuit with obstruction. First, per a tipster who had tracked Bennett for his QAnon postings, Bennett deleted most of his January 6 postings within a day of the event.

Publicly, on the day of the event, Bennett blamed Antifa instigators.

But Bennett texted an associate the same day and clarified that Jacob Chansley was not Antifa.

Bennett and Chansley now share an attorney, Albert Watkins.

Then, after the FBI arrived in Kerrville, TX on March 23 to arrest the couple based off a March 19 warrant, only Rosie was there to be arrested. Per a motion for detention, Bennett had left on March 13 (though one of his sisters claims they split up in February), rented a car, drove to North Carolina, then went to stay with a friend in Fort Mill, South Carolina for two weeks, then hid for another 10 days until finally agreeing to turn himself in on April 9. He stopped using his cell service in that time period and stopped posting to Facebook, shifting to Telegram instead. At some point, he got rid of his new iPhone 11, claiming it did not work (there’s still some uncertainty about when and why he ditched the phone).

Bennett’s efforts to evade arrest may well arise out of nothing more than QAnon paranoia. Though several other aspects about him suggest he may have a more sophisticated Q-related grift going on. But he had attracted attention, even among Q adherents, even before January 6, and he was among the most elusive defendants of all January 6 arrestees.

Joe Biggs and Arthur Jackman

That Joe Biggs made his way to the Senate chamber did not show up in his arrest affidavit, or the first several filings in his case. It was mentioned in the “Leadership indictment” charging Biggs and three others with a conspiracy to obstruct the election certification.

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

65. After re-entering the Capitol by force, BIGGS and another member of the Proud Boys traveled to the Senate chamber.

But that indictment, released on March 10, may have increased the urgency of the focus on the Senate, as it showed that Biggs entered the Capitol twice — first in the initial wave, through the West door, and then through the East door — in a kind of pincer movement and after doing so went to where Mike Pence had only recently been evacuated.

I’m not sure I’ve seen pictures of Biggs in the Senate. But the arrest affidavit for Arthur Jackman — with Paul Rae, one of two Floridians who tailed Biggs around that day — shows him, after twice being caught walking with his hand on Biggs’ shoulder…

… And posing with Biggs and Rae for a selfie on the East steps …

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

And taking this selfie with his Proud Boys emblazoned cell phone.

In fact, the investigation into Jackman (at least as described in the affidavit) started when a friend of Jackman’s shared that selfie — which Jackman had first sent to a childhood friend — with the FBI.

When interviewed by the FBI on January 19, a good two months before he was arrested, Jackman explained that he had joined the Proud Boys in 2016 as a way to support Trump, refused to say whether he had entered the Capitol, but claimed the Proud Boys weren’t there to infiltrate it as [this makes no sense] it was not a sanctioned Proud Boys event.

It’s going to be hard to argue he didn’t breach the Capitol as part of a Proud Boys’ event (twice!) when he did so each time tailing along behind Joe Biggs.

Joshua Black

Joshua Black claimed that God instructed him to drive to DC and take part in events on January 6, and he came with his knife. He was at the front of the mob pushing past barricades before the initial breach of the Capitol (though it’s not clear whether he was pushing himself or being pushed from behind), and after being hit in his face with a plastic bullet, he then walked around the Capitol and entered the East side, at the forefront of another mob. Then he found the Senate Chamber.

While there, he joined others in rifling through and photographing papers on the desks and then in prayer. He ordered someone else (maybe Christian Secor?) to get out of the presiding officer’s chair and not to be disrespectful, and ordered others not to loot the place.

He self reported after he showed up in media coverage, and then later admitted to the FBI he brought the knife that would significantly expand his legal exposure.

He was formally charged with obstruction, and the trespassing charges against him were enhanced because of that knife. He spent over three months in jail, in part because an Alabama Magistrate believed he might be dangerous if he came to believe God ordered him to commit violence. After a hearing on April 23, Amy Berman Jackson released him to home confinement.

Leo “Zeeker” Bozell

Someone whose kids went to school with Zeeker Bozell’s kids tipped of the FBI on January 14 that he had been part of the riot.

Then later, when CNN published footage from the New Yorker on the Senate rioters, that same tipster alerted the FBI to that, too, circling the scion of the movement conservative, Leo Bozell, in the picture.

After being interviewed by the FBI on January 19, the same very persistent witness followed up again on January 24 with this YouTube video that included a fleeting glimpse of Bozell, this time on the balcony in the Senate.

The clip itself is innocuous. But the crowd it captures on the balcony, possibly a convergence of the first people to arrive, may be far more important.

What may have finally piqued the FBI’s interest in the son of a prominent Republican operative were the videos showing that while Bozell was up on the balcony — before anyone was on the floor of the Senate — he and a much younger man (Mike P persuasively argues that this is Bruno Cua in comments) took steps to ensure that two cameras would not capture what was about to happen on the Senate floor.

Bozell was originally charged with trespassing and obstruction on February 11; he was arrested 6 days later. It wasn’t until his indictment on March 12 — two days after Joe Biggs was indicted in the “Leadership” indictment — that Bozell was charged with doing or abetting $1,000 of damage while forcibly entering the Capitol, the same charge used to detain some Proud Boys and Oath Keepers prior to trial. But in spite of being implicated in a crime of violence, Bozell was released on personal recognizance.

Larry Brock

Larry Brock is the less famous of the two Zip Tie Guys in the Senate that day, though Brock was even more kitted out than Eric Munchel. According to his arrest affidavit, within two days of the riot, Brock’s ex-wife called the FBI and told them he had been on the Senate floor. That same day, someone who knew of Brock’s Air Force background and ties to defense contractor L3 also tipped off the FBI.

Brock is one of the people (Oath Keepers Kelly Meggs and Joshua James were recently disclosed to be others) who also made it to Nancy Pelosi’s office, suggesting he was hunting top legislators. Yet, even though videos show Brock lecturing the other insurrectionists that, to win the I/O (information operation) war, they needed to avoid damaging anything, and even though Brock’s social media shows he had started talking war days after the election and mused that, “I really believe we are going to take back what they did on November 3,” while traveling to DC, the government only charged him with misdemeanor trespass (though as noted above, they’re still weighing obstruction charges for him).

Jacob Chansley

Jacob Chansley’s strutting poses have made him the poster child of the insurrection, but the self-billed “Q Shaman” was well know to those who tracked extremist organizing and QAnon before January 6.

As with Joshua Black, the FBI didn’t need to come looking for Chansley. He called them on January 7 and admitted he was the guy with animal pelts and no shirt.

Even though Chansley was originally charged on January 8 only with trespassing, an indictment obtained 3 days later charged him with obstruction and civil disorder. When Royce Lamberth denied Chansley’s bid for pre-trial release, he treated the spear Chansley had brought as a dangerous weapon, which will make his trespassing charges a felony as well.

Amid all the discussions about Chansley since he was arrested, one thing has gotten little public attention: his admission that he traveled to DC with some other people from Arizona, people who no doubt would implicate him in an extremist network that predated January 6. Unless I’ve missed it, that network hasn’t been implicated together.

Jacob Clark

The government got an arrest warrant for Jacob Clark by March 5. It appears to be based largely off using facial recognition to match his Colorado driver’s license to nine different pictures obtained from surveillance videos from the Capitol, corroborated by one person who knows him. They also used returns from the Google GeoFence warrant to show he was inside the Capitol from 2:15 until 3:25PM the day of the riot and returns from a Verizon warrant showing him driving from Colorado to DC from January 4 to 5 and then returning starting on January 7.

Because the government didn’t arrest Clark until April 21, over six weeks after obtaining the warrant, the warrant affidavit surely only shows a fraction of what the government knows about him. Even still, the affidavit shows Clark to have been like Where’s Waldo during the time he was in the Capitol, with surveillance footage showing him in four different confrontations with police in four different locations, each time seemingly pushing the cops to let rioters run through the building. The most easily identifiable (though he was also in the Rotunda as it was breached) shows that Clark took part in the exchange with plain clothes police outside the Senate gallery that Nate DeGrave was also charged for.

What’s interesting is the video shows that Clark got to that hallway over a minute before almost everyone else.

Clark was charged with civil disorder, obstruction, and trespassing, but perhaps because he was only recently arrested, he has not yet been indicted.

Josiah Colt, Ronnie Sandlin, and Nick DeGrave

I described here how these three men planned and outfitted for the insurrection together. The key takeaway from that post for the purpose of this one is that Sandlin and DeGrave are accused of tussling with cops so as to permit the East door of the Capitol to be opened (through which some key conspirators rushed), but also of fighting with cops just outside the Senate Chamber (along with Jacob Clark, above, and with Christian Secor watching) so as to permit the Chamber itself to be breached.

Only Josiah Colt is recognizable among these three, but his two buddies played pretty key roles in the success of the larger insurrection.

Elias Costianes

The FBI received a tip on January 8 that Elias Costianes had posted videos of his participation in the riot on his Snapchat account. On January 19, the tipster provided the videos he uploaded. Those showed Costianes filming himself in the Senate, outside Pelosi’s office, and possibly watching the East doors being breached. He was charged on February 3 with trespassing and obstruction and arrested on February 12. He was indicted on the same charges on March 3, and his case has been continued since, meaning there’s no explanation for why he knew precisely where to go in the Capitol.

Bruno Cua

Cua, a spoiled 18-year old whose own parents enabled his participation in the insurrection, was part of the mob that fought to get into the Senate Chamber (along with Sandlin, DeGrave, and Clark). According to his arrest affidavit, he was turned in by local police officers, who knew him because he has a history of pissing off his neighbors and ignoring orders. He was charged on January 29, arrested on February 5, and indicted on February 10. He was charged with obstruction, civil disorder, and assault/resisting, and his trespass charges were enhanced because he carried a baton with him. Even after the insurrection, Cua still endorsed violence.

Violent protests against the capital (NOT SMALL BUSINESS’S) are well within our constitutional rights

Dear Swamp Rats, The events at the capital were a reminder that WE THE PEOPLE are in charge of this country and that you work for us. There will be no ‘warning shot’ next time.

Everyone who works in congress is a traitor to the people and deserves a public execution.

But beyond details from his social media posts, there was nothing from an extended detention fight that illuminated more about Cua’s ties.

Andrew Griswold

For all we can tell from the court filings, Andrew Griswold is just some guy who went to the Senate floor along with a bunch of other people who wanted to prevent the vote count.

But there are a few interesting features of his case. Someone else who went to the Senate helped get Griswold, from Niceville, Florida, arrested. His Febuary 26 arrest affidavit, describing how he was one of the first people to come through what must be the East door after it was opened with the help of Sandlin and DeGrave, relies, in part on,

camera footage obtained from an individual (W-2) who also entered the Capitol on January 6. At multiple points during the video, an individual who appears to be GRISWOLD is visible, wearing a camouflage jacket.

[snip]

At one point in the video, W-2 walks through a hallway, and GRISWOLD is visible ahead. W-2 then enters the Senate gallery, and GRISWOLD is again visible, as seen in the screenshot below:

The discovery shared with Griswold may describe this as, “One clip from a video obtained in another investigation” which the government deems as Sensitive.

Magistrate Michael Harvey approved Griswold’s arrest warrant on February 26. But the first arrest warrant against him was quashed by Harvey, apparently on March 1; the arrest warrant that Harvey approved is also dated March 1. Griswold was arrested on March 5 and that same day he and his attorney stipulated to the fidelity of the FBI image of his phone so he could get it returned, which is a reasonable thing to do if you want to avoid buying a new phone but very rare among January 6 defendants (indeed, Vitaly Gossjankowski won’t so stipulate with his laptop, even though that has expensive software on it to assist his hearing disability). Griswold was charged with trespassing and obstruction, but almost two months after his arrest, he has not been formally indicted.

Apparently as part of Griswold’s efforts to get the DC pretrial release conditions imposed rather than the local FL ones (the conditions differ in terms of the travel restrictions, the reporting requirements, restrictions on alcohol and other drugs, and — most notably — restrictions on the right to retain a legal firearm), the original Florida judge in his case recused and another granted Griswold’s request. All subsequent January 6 defendants seem to be having restrictions imposed on gun ownership, so that may have been the issue.

Paul Hodgkins

In an interview on January 26, four days after an acquaintance provided the FBI with a selfie he posted to Parler, Paul Hodgkins told the FBI that he traveled to DC alone, on a bus, and didn’t know any of the people engaged in violence or destruction around him. But before he started rifling through things on the desks in the Senate, he put on some white latex gloves, which is a curious bit of preparation for a guy who just hopped on a bus alone.

Hodgkins’ release conditions — initially, with a $25,000 bond and high intensity supervision, though with the bond later dropped by Magistrate Merriweather and then his curfew loosened by Judge Randolph Moss — were much stricter than other defendants charged, like he was on March 5, with trespassing and obstruction. (That could either stem from a strict local magistrate or from a prior arrest record.) In both of Hodgkins’ appearances, his lawyers have talked about making a plea deal.

Jerod  and Joshua Hughes

Jerod and Joshua Hughes are brothers from Montana. They watched as Dominick Pezzola busted through a window to break into the Capitol, were among the first 10 people in (amid a group that included Proud Boys who — like them — are from Montana), then Jerod kicked the door open to allow other rioters in behind them.

They went from there immediately towards the Senate floor, following Officer Goodman closely behind Doug Jensen.

Once inside the Senate, Jerod set about ransacking desks as Christian Secor, holding his America First sign, looked on.

That’s about all their arrest warrant, charging them with civil disorder, damaging government property, obstruction, and trespassing describes. They turned themselves in on January 11 after the FBI released their pictures on a BOLO. They were indicted on February 10. Since that time first Jerod, then Joshua, have moved for bond, which Judge Tim Kelly granted to both on April 7.

Those detention disputes, revealed that the brothers had driven over days to attend Trump’s rally. They claimed, at first, that they had gone to the Capitol in response to Trump’s exhortations. But after the prosecutor reviewed the Cellebrite report from Jerod’s phone on April 5, the government discovered texts showing buddies had funded the trip, and that Jerod claimed that he was behaving as a model citizen by participating in an insurrection.

Defendant: Ah we didn’t do anything crazy like destroy shit or fight the cops. Trespass and vandalism. Meh. I’ve done time. It’s josh I worry about.

Person Five: It’s the trespassing I worry about, but there may have been so many of you that figuring it out is more trouble than it’s worth. Were you in the photos? I could only see josh

Defendant: They got my ugly mug up and down. Trespassing ain’t shit. I feel like I was behaving like a model citizen ready to reclaim my country. Not enuff people followed.

Jerod said to someone else that they had wanted to hold the place but didn’t have numbers to accomplish that.

Person Six: How was it

Defendant: Insane on a few different levels.

Defendant: I saw picture [sic] of me and josh already on the news. Not enough people followed us in to hold the place. We had to get the fuck out.

The government also noted — attributing it to a picture on Jerod’s phone though they surely would have had it before — that the two had been present in the Senate Gallery, as well as the Senate floor.

Leo Christopher Kelly

Leo Kelly did an interview the day of the riot — after being among the first people in the Capitol and praying with others on the dais of the Senate — expressing some reservations about invading other people’s space. He asked a Deputy US Marshal to tell the FBI he would turn himself in if an arrest warrant were issued. He was arrested, just on trespassing charges, days later. Since that time, the government has twice deferred formally charging him, with the next deadline for a preliminary hearing set for May 10.

Anthony Mariotto

Like fellow Floridian, Arthur Jackman, Tony Mariotto was first IDed after he shared a selfie from the Senate Gallery and a friend shared it (after Mariotto had deleted his Facebook account) with the FBI.

Mariotto was in Georgia when the FBI first caught up with him. But when they asked, he immediately returned to Florida, and, on January 19, handed over his phone to be imaged. Three days later he was arrested. On February 8, he was formally charged with trespassing.

His arrest affidavit, which describes, “other videos that were recorded inside the Capitol Building during the events of January 6, 2021,” doesn’t describe what was on those videos. They may be among those that implicate others who entered the Senate.

Patrick Montgomery and Brady Knowlton

The investigation of Patrick Montgomery is a useful snapshot for understanding the Senate as a crossroads. As I wrote here, his acquaintances started turning him into the FBI the day after the insurrection, leading to his arrest and formal charge on misdemeanor trespassing charges by information. Even while that was happening, the FBI was investigating a guy who showed up in one of his pictures from the day, Brady Knowlton.

Knowlton’s arrest affidavit implicated two other guys, one that a witness who has been in a lawsuit with Knowlton for years described as Knowlton’s “right-hand man,” but who remains unnamed and uncharged. And surveillance images of Knowlton and Montgomery IDed someone — the guy in the hoodie who entered the Capitol with Knowlton and Montgomery — whom FBI either declined to name or had not yet IDed when they got the Knowlton arrest warrant.

The three of them went to the Rotunda — where people were opening a third breach to the Capitol — and from there to the Senate, with Knowlton filming from his camera the entire time.

When the government indicted Montgomery and Knowlton on April 16, they not only charged both with obstruction, but they added assault and civil disorder charges against Montgomery for an unidentified exchange with cops.

So in addition to the assault that Montgomery allegedly was involved in, this thread still leaves two men unidentified.

Christopher Moynihan

Per his arrest affidavit, Christopher Moynihan is another of the people who rifled through official papers when he got to the floor of the Senate on January 6. g “There’s got to be something we can use against these fucking scumbags,” he was quoted as saying. In the wake of the New Yorker video, two of Moynihan’s former co-workers alerted the FBI to his identity. He joined the prayer on the dais, but with a sour face that made it look like he was just going along. He was arrested on February 25 and indicted with the same obstruction and trespassing charges on March 17.

Eric Munchel and Lisa Eisenhart

Eric Munchel and his mom, Lisa Eisenhart, quickly became the focus of both legal and press attention given his spectacular appearance on the floor of the Senate with Zip Ties.

They were arrested early — on January 15. Munchel’s admission to having a taser when he breached the Capitol increased both’s legal exposure under a deadly weapon enhancement. But Munchel’s general compliance with law enforcement also helped to convince the DC Circuit they would not be a threat going forward.

After the events of January 6, Munchel apparently considered joining Proud Boys. But instead, he’s now the poster child both for the threat of kidnapping, but also for a DC Circuit standard of bail that treats involvement in a terrorist event as a historical threat, and requires detention decisions to consider whether the same people pose a forward-looking terrorist threat.

The more important point for the purposes of this post is that the government has not yet shown proof that Munchel or his mother did more than recognize the two militias as they were engaged in armed MAGA tourism while holding zip ties.

Christine Priola

According to her arrest affidavit, the government identified Christine Priola’s presence in the Senate chamber within days, based in part on the sign she carried reading, “The Children Cry Out for Justice,” perhaps suggesting a QAnon affiliation. Curiously, the affidavit explains that she and others — the first people in the Senate — “entered the restricted floor area of the Senate chambers and took photographs of the evacuation of the Senate chambers that were required based on the unauthorized entrance,” suggesting the rioters arrived even earlier than the impeachment case had made out.

After a tip on January 8 from someone in Cleveland that Priola, who worked for the Cleveland School District, was the one holding the sign, the FBI searched her home and seized her devices — on which she had filmed events in the Senate — that same day. But when the FBI imaged her phone, there were no photos, videos, chats, or messages from January 4 through 7, and the location of the phone was also unavailable until 4:23PM on January 6, when her phone showed up northeast of the Capitol.

Priola was arrested for trespassing on January 14, but since then her case has been on hold, without even an Information to show whether the FBI obtained more information on why her phone had been cleared within two days.

Michael Roche

Michael Roche is one of the people who joined Jacob Chansley in prayer on the Senate dais. The story of how he came to be arrested — and why he was not arrested until April 13 — remains a muddle. He was IDed on February 8 when law enforcement found a video he made posted to someone else’s account. In the video, he admitted that,

We did get a chance to storm the Capitol. And we made it into the chamber. . . . We managed to convince the cops to let us through. They listened to reason. And when we got into the chamber … we all started praying and shouting in the name of Jesus Christ, and inviting Christ back into out state [sic] capitol.

That seems to have led the FBI to this photo was posted by Seth Roche, explaining that he took the picture before people started claiming that Jacob Chansley was Antifa and explaining (I think) that his brother had stood shoulder to shoulder in prayer with Chansley, “in the main capital [sic] chamber [sic] holding up the Bible.”

Roche’s arrest affidavit suggests the FBI found both those posts before the New Yorker posted its story on January 17 with the video of Chansley, Roche, and others praying.

According to the arrest affidavit, nothing else happened until US Marshals, in an effort to find a missing child, knocked on Roche’s door, thinking the child’s family lived there. Roche told the Marshals he thought they were coming to arrest him. When the Marshals informed the FBI that same day, the FBI got the Marshal to ID Roche as the person in the NYer.

Again, all that happened by February 2. It wasn’t until April 7 when the FBI submitted his arrest affidavit. The affidavit not only has no more recent evidence in it, but it doesn’t really explain why Roche (unlike — say — Larry Brock) got charged with obstruction along with trespassing.

Those questions further raise the question about whose Facebook his interview appeared on, because that person may be the real person of interest associated with Roche.

Christian Secor

It seems like Christian Secor’s classmates at UCLA jumped on the opportunity to report Secor’s involvement in the January 6 insurrection. Eleven people, many of them students, IDed Secor as one of the people who had sat in the presiding officer’s seat or otherwise shown up in the New Yorker video of the Senate occupation.

But Secor did more than tour the Senate. The surveillance videos the FBI included with his arrest affidavit show Secor was among those who shoved the East doors open from inside.

He was close to  the brawl outside the Senate gallery doors involving Nate DeGrave, Ronnie Sandlin, and Jacob Clark.

There’s even a clip of him just behind the woman that the FBI suspects of having Nancy Pelosi’s laptop (per a Homer, AK woman who claims she was mistakenly IDed as such).

There’s no reason to believe Secor and this woman are together, but the proximity is interesting given that Riley June Williams, also a Groyper, allegedly first took the laptop.

Secor was arrested on suspicion of assault, civil disorder, obstruction, and trespassing on February 16 and indicted on those same charges on February 26. In March his lawyer moved to get him released in time to finish his UCLA finals. The government tried to oppose his release, pointing in part to his pro-fascist views, in part to the weapons he had been acquiring and in part to his alleged attempts to cover up his involvement. But Judge Trevor McFadden released him on a $200,000 bail with a rather curious kind of home incarceration that lets him out to work.

DJ Shalvey

DJ Shalvey is the guy wearing an undersized hard hat depicted in videos of people rifling through papers in the Senate. He’s quoted thinking Ted Cruz sold them out before others tell him, no, Ted Cruz was right there with the insurrectionists.

The FBI obtained an arrest warrant for him after two long-time associates alerted the FBI, one of whom shared selfies that Shalvey sent him the day of the riot, by February 12. But he wasn’t arrested until March 9, reportedly after turning himself in. Somewhere along the way he must have interviewed with the FBI, though, because his (still undocketed) indictment released Friday not only added assault and civil disorder charges against him, as well as theft charges for taking a letter from Mitt Romney to Mike Pence, but they also made Shalvey the rare if not only January 6 defendant charged with lying to the FBI about that assault.

 

Former Presiding FISA Judge John Bates’ Curious Treatment of White Person Terrorism

By chance of logistics, the men and women who have presided over a two decade war on Islamic terrorism are now presiding over the trials of those charged in January 6.

To deal with the flood of defendants, the Senior Judges in the DC District have agreed to pick up some cases. And because FISA mandates that at least three of the eleven FISA judges presiding at any given time come from the DC area, and because the presiding judge has traditionally been from among those three, it means a disproportionate number of DC’s Senior Judges have served on the FISA Court, often on terms as presiding judge or at the very least ruling over programmatic decisions that have subjected millions of Americans to collection in the name of the war on terror. Between those and several other still-active DC judges, over 60 January 6 cases will be adjudicated by a current or former FISA judge.

Current and former FISA judges have taken a range of cases with a range of complexity and notoriety:

  • Royce Lamberth served as FISC’s presiding judge from 1995 until 2002 and failed in his effort to limit the effect of the elimination of the wall between intelligence and criminal collection passed in the PATRIOT Act. And during a stint as DC’s Chief Judge he dealt with the aftermath of the Boumediene decision and fought to make the hard won detention reviews won by Gitmo detainees more than a rubber stamp. Lamberth is presiding over 10 cases with 14 defendants. A number of those are high profile cases, like that of Jacob Chansley (the Q Shaman), Zip Tie Guy Eric Munchel and his mother, bullhorn lady and mask refusenik Rachel Powell, and Proud Boy assault defendant Christopher Worrell.
  • Colleen Kollar-Kotelly is still an active DC District judge, but she served as FISC presiding judge starting way back in 2002, inheriting the difficulties created by Stellar Wind from Lamberth. She’s the one who redefined “relevant to” in an effort to bring the Internet dragnet back under court review. She is presiding over ten January 6 cases with 12 defendants. That includes Lonnie Coffman, who showed up to the insurrection with a truck full of Molotov cocktails, as well as some other assault cases.
  • John Bates took over as presiding judge of FISC on May 19, 2009. In 2010, he redefined “metadata” so as to permit the government to continue to use the Internet dragnet; the government ultimately failed to make that program work but FISC has retained that twisted definition of “metadata” nevertheless. In 2011, he authorized the use of “back door searches” on content collected under FISA’s Section 702. In 2013, Bates appears to have ruled that for Islamic terrorists, the FBI can get around restrictions prohibiting surveillance solely for First Amendment reasons by pointing to the conduct of an American citizen suspect’s associates, rather than his or her own. And while not a FISA case, Bates also dismissed Anwar al-Awlaki’s effort to require the government to give him some due process before executing him by drone strike; at the time, the government had presented no public evidence that Awlaki had done more than incite violence. Bates has eight January 6 cases with nine defendants (as well as some unrelated cases), but he is presiding over several high profile ones, including the other Zip Tie Guy, Larry Brock, the scion of a right wing activist family, Leo Bozell IV, and former State Department official Freddie Klein.
  • Reggie Walton, who took over as presiding judge in 2013 but who, even before that, oversaw key programmatic decisions starting in 2008, showed a willingness both on FISC and overseeing the Scooter Libby trial to stand up to the Executive. That includes his extended effort to clean up the phone and Internet dragnet after Bush left in 2009, during which he even shut down part or all of the two dragnets temporarily. Walton is presiding over six cases with eight defendants, most for MAGA tourism.
  • Thomas Hogan was DC District’s head judge in the 2000s. In that role, he presided over the initial Gitmo detainees’ challenges to their detention (though many of the key precedential decisions on those cases were made by other judges who have since retired). Hogan then joined FISC and ultimately took over the presiding role in 2014 and in that role, affirmatively authorized the use of Section 702 back door searches for FBI assessments. Hogan is presiding over 13 cases with 18 defendants, a number of cases involving multiple defendants (including another set of mother-son defendants, the Sandovals). The most important is the case against alleged Brian Sicknick assailants, Julian Khater and George Tanios.
  • James Boasberg, who took over the presiding position on FISC on January 1, 2020 but had started making initial efforts to rein in back door searches even before that, is presiding over about eight cases with ten defendants, the most interesting of which is the case of Aaron Mostofsky, who is himself the son of a judge.
  • Rudolph Contreras, who like Kollar-Kotelly and Boasberg is not a senior judge, is currently a FISC judge. He has six January 6 cases with seven defendants, most MAGA tourists accused of trespassing. There’s a decent chance he’ll take over as presiding judge when Boasberg’s term on FISC expires next month.

Of the most important FISA judges since 9/11, then, just Rosemary Collyer is not presiding over any January 6 cases.

Mind you, it’s not a bad thing that FISA judges will preside over January 6 cases. These are highly experienced judges with a long established history of presiding over other cases, ranging the gamut and including other politically charged high profile cases, as DC District judges do.

That said, in their role as FISA judges — particularly when reviewing programmatic applications — most of these judges have been placed in a fairly unique role on two fronts. First, most of these judges have been forced to weigh fairly dramatic legal questions, in secret, in a context in which the Executive Branch routinely threatens to move entire programs under EO 12333, thereby shielding those programs from any oversight by a judge. These judges responded to such situations with a range of deference, with Royce Lamberth and Reggie Walton raising real stinks and — the latter case — hand-holding on oversight over the course of most of a year, to John Bates and to a lesser degree Thomas Hogan, who often complained at length about abuses before expanding the same programs being abused. Several — perhaps most notably Kollar-Kotelly when she was asked to bring parts of Stellar Wind under FISA — have likewise had to fight to affirm the authority of the entire Article III branch, all in secret.

Ruling on these programmatic FISA applications also involved hearing expansive government claims about the threat of terrorism, the difficulty and necessity of identifying potential terrorists before they attack, and the efficacy of the secret programs devised to do that (the judges who also presided over Gitmo challenges, which includes several on this list, also fielded similar secret claims about the risk of terrorism). Some of those claims — most notably, about the efficacy of the Section 215 phone dragnet — were wildly overblown. In other words, to a degree unmatched by most other judges, these men and women were asked to balance the rights of Americans against secret government claims about the risks of terrorism.

Now these same judges are part of a group being asked to weigh similar questions, but about a huge number of predominantly white, sometimes extremist Christian, defendants, but to do so in public, with defense attorneys challenging their every decision. Here, the balance between extremist affiliation and First Amendment rights will play out in public, but against the background of a two decade war on terror where similar affiliation was criminalized, often in secret.

Generally, the District judges in these cases have not done much on the cases yet, as either Magistrates (on initial pre-indictment appearances) or Chief Judge Beryl Howell (on initial detention disputes) have handled some of the more controversial issues, and in a few cases, Ketanji Brown Jackson presided over arraignments before she started handing off cases in anticipation of her Circuit confirmation process.

But several of the judges have written key opinions on detention, opinions that embody how differently the conduct of January 6 defendants looks to different people.

Lamberth, for example, authored the original detention order for “Zip Tie Guy” Eric Munchel and his mom, Lisa Eisenhart. Even while admitting that Munchel made efforts to limit any vandalization during the riot, Lamberth nevertheless deemed Munchel’s actions a threat to our constitutional government.

The grand jury charged Munchel with grave offenses. In charging Munchel with “forcibly enter[ing] and remain[ing] in the Capitol to stop, delay, and hinder Congress’s certification of the Electoral College vote,” Indictment 1, ECF No. 21, the grand jury alleged that Munchel used force to subvert a democratic election and arrest the peaceful transfer of power. Such conduct threatens the republic itself. See George Washington, Farewell Address (Sept. 19, 1796) (“The very idea of the power and the right of the people to establish government presupposes the duty of every individual to obey the established government. All obstructions to the execution of the laws, all combinations and associations, under whatever plausible character, with the real design to direct, control, counteract, or awe the regular deliberation and action of the constituted authorities, are destructive of this fundamental principle, and of fatal tendency.”). Indeed, few offenses are more threatening to our way of life.

Munchel ‘s alleged conduct demonstrates a flagrant disregard for the rule of law. Munchel is alleged to have taken part in a mob, which displaced the elected legislature in an effort to subvert our constitutional government and the will of more than 81 million voters. Munchel’ s alleged conduct indicates that he is willing to use force to promote his political ends. Such conduct poses a clear risk to the community.

Defense counsel’s portrayal of the alleged offenses as mere trespassing or civil disobedience is both unpersuasive and detached from reality. First, Munchel’s alleged conduct carried great potential for violence. Munchel went into the Capitol armed with a taser. He carried plastic handcuffs. He threatened to “break” anyone who vandalized the Capitol.3 These were not peaceful acts. Second, Munchel ‘s alleged conduct occurred while Congress was finalizing the results of a Presidential election. Storming the Capitol to disrupt the counting of electoral votes is not the akin to a peaceful sit-in.

For those reasons, the nature and circumstances of the charged offenses strongly support a finding that no conditions of release would protect the community.

[snip]

Munchel gleefully entered the Capitol in the midst of a riot. He did so, the grand jury alleges, to stop or delay the peaceful transfer of power. And he did so carrying a dangerous weapon. Munchel took these actions in front of hundreds of police officers, indicating that he cannot be deterred easily.

Moreover, after the riots, Munchel indicated that he was willing to undertake such actions again. He compared himself-and the other insurrectionists-to the revolutionaries of 1776, indicating that he believes that violent revolt is appropriate. See Pullman, supra. And he said “[t]he point of getting inside the building is to show them that we can, and we will.” Id. That statement, particularly its final clause, connotes a willingness to engage in such behavior again.

By word and deed, Munchel has supported the violent overthrow of the United States government. He poses a clear danger to our republic.

This is the opinion that the DC Circuit remanded, finding that Lamberth had not sufficiently considered whether Munchel and his mother would pose a grave future threat absent the specific circumstances present on January 6. They contrasted the mother and son with those who engaged in violence or planned in advance.

[W]e conclude that the District Court did not demonstrate that it adequately considered, in light of all the record evidence, whether Munchel and Eisenhart present an identified and articulable threat to the community. Accordingly, we remand for further factfinding. Cf. Nwokoro, 651 F.3d at 111–12.

[snip]

Here, the District Court did not adequately demonstrate that it considered whether Munchel and Eisenhart posed an articulable threat to the community in view of their conduct on January 6, and the particular circumstances of January 6. The District Court based its dangerousness determination on a finding that “Munchel’s alleged conduct indicates that he is willing to use force to promote his political ends,” and that “[s]uch conduct poses a clear risk to the community.” Munchel, 2021 WL 620236, at *6. In making this determination, however, the Court did not explain how it reached that conclusion notwithstanding the countervailing finding that “the record contains no evidence indicating that, while inside the Capitol, Munchel or Eisenhart vandalized any property or physically harmed any person,” id. at *3, and the absence of any record evidence that either Munchel or Eisenhart committed any violence on January 6. That Munchel and Eisenhart assaulted no one on January 6; that they did not enter the Capitol by force; and that they vandalized no property are all factors that weigh against a finding that either pose a threat of “using force to promote [their] political ends,” and that the District Court should consider on remand. If, in light of the lack of evidence that Munchel or Eisenhart committed violence on January 6, the District Court finds that they do not in fact pose a threat of committing violence in the future, the District Court should consider this finding in making its dangerousness determination. In our view, those who actually assaulted police officers and broke through windows, doors, and barricades, and those who aided, conspired with, planned, or coordinated such actions, are in a different category of dangerousness than those who cheered on the violence or entered the Capitol after others cleared the way. See Simpkins, 826 F.2d at 96 (“[W]here the future misconduct that is anticipated concerns violent criminal activity, no issue arises concerning the outer limits of the meaning of ‘danger to the community,’ an issue that would otherwise require a legal interpretation of the applicable standard.” (internal quotation and alteration omitted)). And while the District Court stated that it was not satisfied that either appellant would comply with release conditions, that finding, as noted above, does not obviate a proper dangerousness determination to justify detention.

The District Court also failed to demonstrate that it considered the specific circumstances that made it possible, on January 6, for Munchel and Eisenhart to threaten the peaceful transfer of power. The appellants had a unique opportunity to obstruct democracy on January 6 because of the electoral college vote tally taking place that day, and the concurrently scheduled rallies and protests. Thus, Munchel and Eisenhart were able to attempt to obstruct the electoral college vote by entering the Capitol together with a large group of people who had gathered at the Capitol in protest that day. Because Munchel and Eisenhart did not vandalize any property or commit violence, the presence of the group was critical to their ability to obstruct the vote and to cause danger to the community. Without it, Munchel and Eisenhart—two individuals who did not engage in any violence and who were not involved in planning or coordinating the activities— seemingly would have posed little threat. The District Court found that appellants were a danger to “act against Congress” in the future, but there was no explanation of how the appellants would be capable of doing so now that the specific circumstances of January 6 have passed. This, too, is a factor that the District Court should consider on remand. [my emphasis]

The DC Circuit opinion (joined by Judith Rogers, who ruled for Gitmo detainees in Bahlul and a Boumediene dissent) was absolutely a fair decision. But it is also arguably inconsistent with the way that the federal government treated Islamic terrorism, in which every time the government identified someone who might engage in terrorism (often using one of the secret programs approved by this handful of FISA judges, and often based off far less than waltzing into the Senate hoping to prevent the certification of an election while wielding zip ties and a taser), the FBI would continue to pursue those people as intolerably dangerous threats. Again, that’s not the way it’s supposed to work, but that is how it did work, in significant part with the approval of FISA judges.

That is, with Islamic terrorism, the government treated potential threats as threats, whereas here CADC required Lamberth to look more closely at what could make an individual predisposed to an assault on our government — a potential threat — as dangerous going forward. Again, particularly given the numbers involved, that’s a better application of due process than what has been used for the last twenty years, but it’s not what happened during the War on Terror (and in weeks ahead, this will be relitigated with consideration of whether Trump’s continued incitement makes these defendants an ongoing threat).

Now compare Lamberth’s order to an order John Bates issued in the wake of and specifically citing the CADC ruling, releasing former State Department official Freddie Klein from pretrial detention. Klein is accused of fighting with cops in the Lower West Terrace over the course of half an hour.

Bates found that Klein, in using a stolen riot shield to push against cops in an attempt to breach the Capitol, was eligible for pre-trial detention, though he expressed skepticism of the government’s argument that Klein had wielded the shield as a dangerous weapon).

The Court finds that Klein is eligible for pretrial detention based on Count 3. Under the BRA, a “crime of violence” includes “an offense that has as an element of the offense the use, attempted use, or threatened use of physical force against the person or property of another.” 18 U.S.C. § 3156(a)(4)(A). The Supreme Court in Johnson v. United States defined “physical force” as “force capable of causing physical pain or injury to another person.” 559 U.S. 133, 140 (2010); see also Def.’s Br. at 9.

[snip]

6 The Court has some doubts about whether Klein “used” the stolen riot shield as a dangerous weapon. The BRA does not define the term, but at least for purposes of § 111(b), courts have held that a dangerous weapon is any “object that is either inherently dangerous or is used in a way that is likely to endanger life or inflict great bodily harm.” See United States v. Chansley, 2021 WL 861079, at *7 (D.D.C. Mar. 8, 2021) (Lamberth, J.) (collecting cases). A plastic riot shield is not an “inherently dangerous” weapon, and therefore the question is whether Klein used it in a way “that is likely to endanger life or inflict great bodily harm.” The standard riot shield “is approximately forty-eight inches tall and twenty-four inches wide,” see Gov’t’s Br. at 13, and the Court disagrees with defense counsel’s suggestion that a riot shield might never qualify as a dangerous weapon, even if swung at an officer’s head, Hr’g Tr. 18:18–25, 19:1–11. See, e.g., United States v. Johnson, 324 F.2d 264, 266 (4th Cir. 1963) (finding that metal and plastic chair qualified as a dangerous weapon when “wielded from an upright (overhead) position and brought down upon the victim’s head”). But it is a close call whether Klein’s efforts to press the shield against officers’ bodies and shields were “likely to endanger life or inflict great bodily harm.” See Chansley, 2021 WL 861079, at *7.

But Bates ruled that there were certain things about the case against Klein — that he didn’t come prepared for combat, that he didn’t bring a weapon with him and instead just made use of what he found there, that any coordination he did involved ad hoc cooperation with other rioters rather than leadership throughout the event — that distinguished him from other defendants who (he suggested) should be detained, thereby limiting the guidelines laid out by CDC.

Bates’ decision on those points is absolutely fair. He has distinguished Klein from other January 6 defendants who, he judges, contributed more to the violence.

But there are two aspects of Bates’ decision I find shocking, especially from the guy who consistently deferred to Executive Authority on matters of national security and who sacrificed all of our communicative privacy in the service of finding hidden terrorist threats to the country. First, Bates dismissed the import of Klein’s sustained fight against cops because — he judged — Klein was only using force to advance the position of the mob, not trying to injure anyone.

The government’s contention that Klein engaged in “what can only be described as hand-to-hand combat” for “approximately thirty minutes” also overstates what occurred. See Gov’t’s Br. at 6. Klein consistently positioned himself face-to-face with multiple officers and also repeatedly pressed a stolen riot shield against their bodies and shields. His objective, as far as the Court can tell, however, appeared to be to advance, or at times maintain, the mob’s position in the tunnel, and not to inflict injury. He is not charged with injuring anyone and, unlike with other defendants, the government does not submit that Klein intended to injure officers. Compare Hr’g Tr. 57:12–18 (government conceding that the evidence does not establish Klein intended to injure anyone, only that “there was a disregard of care whether he would injure anyone or not” in his attempt to enter the Capitol), with Gov’t’s Opp’n to Def.’s Mot. to Reopen Detention Hearing & For Release on Conditions, ECF No. 30 (“Gov’t’s Opp’n to McCaughey’s Release”), United States v. McCaughey, III, 21-CR-040-1, at 11 (D.D.C. Apr. 7, 2021) (government emphasizing defendant’s “intent to injure” an officer who he had pinned against a door using a stolen riot shield as grounds for pretrial detention). And during the time period before Klein obtained the riot shield, he made no attempts to “battle” or “fight” the officers with his bare hands or other objects, such as the flagpole he retrieved. That does not mean that Klein could not have caused serious injury— particularly given the chaotic and cramped atmosphere inside the tunnel. But his actions are distinguishable from other detained defendants charged under § 111(b) who clearly sought to incapacitate and injure members of law enforcement by striking them with fists, batons, baseball bats, poles, or other dangerous weapons.

[snip]

Klein’s conduct was forceful, relentless, and defiant, but his confrontations with law enforcement were considerably less violent than many others that day, and the record does not establish that he intended to injure others. [my emphasis]

Bates describes that Klein wanted to use force in the service of occupying the building, not harming individual cops.

Of course, using force to occupy a building in service of halting the vote count is terrorism, but Bates doesn’t treat it as such.

Even more alarmingly, Bates flips how Magistrate Zia Faruqui viewed a government employee like Klein turning on his own government. The government had argued — and Faruqui agreed — that when a federal employee with Top Secret clearance attacks his own government, it is not just a crime but a violation of the Constitutional oath he swore to protect the country against enemies foreign and domestic.

Bates — after simply dismissing the import of Klein’s admittedly limited criminal history that under any other Administration might have disqualified him from retaining clearance — describes what Klein did as a “deeply concerning breach of trust.”

The government also argues that “Klein abdicated his responsibilities to the country and the Constitution” on January 6 by violating his oath of office as a federal employee to “support and defend the Constitution of the United States against all enemies, foreign and domestic.” Id. at 24–25 (quoting 5 U.S.C. § 3331). The fact that, as a federal employee, Klein actively participated in an assault on our democracy to thwart the peaceful transfer of power constitutes a substantial and deeply concerning breach of trust. More so, too, because he had been entrusted by this country to handle “top secret” classified information to protect the United States’ most sensitive interests. In light of his background, Klein had, as Magistrate Judge Faruqui put it, every “reason to know the acts he committed” on January 6 “were wrong,” and yet he took them anyway. Order of Detention Pending Trial at 4. Klein’s position as a federal employee thus may render him highly culpable for his conduct on January 6. But it is less clear that his now-former employment at the State Department heightens his “prospective” threat to the community. See Munchel, 2021 WL 1149196, at *4. Klein no longer works for or is affiliated with the federal government, and there is no suggestion that he might misuse previously obtained classified information to the detriment of the United States. Nor, importantly, is he alleged to have any contacts—past or present—with individuals who might wish to take action against this country. [my emphasis]

Bates then argues that Klein’s ability to obtain clearance proves not that he violates oaths he takes (the government argument adopted by Faruqui), but that he has the potential to live a law-abiding life.

Ultimately, Klein’s history—including his ability to obtain a top-level security clearance—shows his potential to live a law-abiding life. His actions on January 6, of course, stand in direct conflict with that narrative. Klein has not—unlike some other defendants who have been released pending trial for conduct in connection with the events of January 6—exhibited remorse for his actions. See, e.g., United States v. Cua, 2021 WL 918255, at *7–8 (D.D.C. Mar. 10, 2021) (Moss, J.) (weighing defendant’s deep remorse and regret in favor of pretrial release). But nor has he made any public statements celebrating his misconduct or suggesting that he would participate in similar actions again. And it is Klein’s constitutional right to challenge the allegations against him and hold the government to its burden of proof without incriminating himself at this stage of the proceedings. See United States v. Lawrence, 662 F.3d 551, 562 (D.C. Cir. 2011) (“[A] district court may not pressure a defendant into expressing remorse such that the failure to express remorse is met with punishment.”). Hence, despite his very troubling conduct on January 6, the Court finds on balance that Klein’s history and characteristics point slightly toward release.

In short, Bates takes the fact that Klein turned on the government he had sworn to protect and finds that that act weighs in favor of release.

Bates judges that this man, whom he described as having committed violence to advance the goal of undermining an election, nevertheless finds that — having already done that — Klein does not pose an unmanageable prospective threat.

Therefore, although it is a close call, the Court ultimately does not find that Klein poses a substantial prospective threat to the community or any other person. He does not pose no continuing danger, as he contends, given his demonstrated willingness to use force to advance his personal beliefs over legitimate government objectives. But what future risk he does present can be mitigated with supervision and other strict conditions on his release.

Again, it’s not the decision itself that is troubling. It’s the thought process Bates used, both for the way Bates flips Klein’s betrayal of his oath on its head, and for the way that Bates views the threat posed by a man who already used force in an attempt to coerce a political end. And it’s all the more troubling knowing how Bates has deferred to the Executive’s claims about the nascent threat posed even by people who have not, yet, engaged in violence to coerce a political end.

Bates similarly showed no deference to the government’s argument that Larry Brock, a retired Lieutenant Colonel who also brought zip ties into the Senate chamber, should have no access to the Internet given really inflammatory statements on social media, including a call for “fire and blood” as early as November. Bates decided on his own that Probation could sufficiently monitor Brock’s Internet use, comparing Brock to (in my opinion) two unlike defendants to justify the decision. Again, the decision itself is absolutely reasonable, but for the guy who decided the government could monitor significant swaths of transnational Internet traffic out of a necessity to identify potential terrorists, for a guy who okayed the access of US person’s content with no warrant, it’s fairly remarkable that he hasn’t deferred to the government about the danger Brock poses on the Internet (to say nothing of Brock’s likely sophistication at evading surveillance).

Again, I’m not complaining about any of these opinions. The outcomes are all reasonable. It is genuinely difficult to fit the events of January 6 into our existing framework (and perhaps that’s a good thing). Plus, there is such a range of fact patterns that even in the Munchel opinion give force to the mob even while trying to adjudicate individuals’ actions.

But either because these discussions are public, or because we simply think about white person terrorism differently, less foreign, perhaps, than we do Islamic terrorism, the very same judges who’ve grappled with these questions for the past two decades don’t necessarily have the ready answers they had in the past.

FISA Judges January 6 cases

Lamberth:

Kollar-Kotelly:

Bates:

Walton:

Hogan:

Boasberg:

Contreras:

Last Month, Baked Alaska Got to Ditch His Ankle Bracelet

While I am probably missing a few examples, I can think of just two defendants that DOJ has voluntarily loosened release conditions for without some kind of purpose tied to employment: Jon Schaffer, when he entered into a cooperation agreement with the government, and far right propagandist Baked Alaska, AKA Anthime Gionet, last month.

A warrant for Gionet’s arrest was obtained on January 7 and he was arrested on January 15 on misdemeanor charges of trespassing. He was released on personal recognizance but, unlike many other trespassing defendants, he was outfitted with a GPS monitor to make sure he stayed in AZ.

He was sent away and has never since been charged via Information.

On March 23, DOJ added a second attorney to this simple trespassing case, Christopher Brown. On March 26, Gionet asked to lose the ankle bracelet, based (in part) on a claim that he is media and (in part) on a claim that other misdemeanors he faces in AZ won’t likely go to trial. On March 29, DOJ asked for a consent motion to continue the case for another month past March 29 saying they’re trying to “resolve” this issue; this is the same kind of motion to continue they used in the Schaffer case (as opposed to unopposed motions to continue, as they’ve used in most other January 6 cases). And on March 31, the government said that, while it doesn’t agree with Gionet’s claim to be media, they don’t mind if he ditches his ankle bracelet because he’s been a good little Nazi sympathizer while out on release.

The defendant has asked this Court to remove Global Positioning System (GPS) monitoring from his release conditions. In his motion, the defendant argues that he is a member of the news media. The government disagrees. Nevertheless, because the defendant has been compliant with his release conditions to-date, the government does not oppose the instant motion.

On its face, it was an inexplicable move, particularly given the way the January 6 defendants have pointed to each other’s release conditions like 400 children complaining about unfair treatment to their mother.

When Larry Brock, also (currently) facing just trespass charges asked to change his release conditions, the government objected both to permitting Brock to travel freely in TX as well as access to the Internet. “The Defendant has not provided a change in circumstances to justify a change in release conditions,” the government argued. (John Bates overruled the government on the latter point.)

And when Felicia Konold, accused in a more serious Proud Boy conspiracy, made a similar argument about good behavior in a bid to lose her GPS monitor, the government argued that good behavior was insufficient reason to change release conditions. Indeed, in that case they pointed to her pending DUI case (like Gionet’s misdemeanor charges, in AZ), to suggest her behavior wasn’t all that great. “In sum, the defendant has not raised any novel issue that merits any meaningful change of her release conditions,” the government explained in opposing her request.

When Nicholas DeCarlo, functionally equivalent to Gionet as a right wing propagandist (albeit charged, in addition to trespassing, with conspiracy, obstruction, and for damaging the Capitol), asked to have his GPS removed, the government said nothing had changed to justify the change. “Finally, there have been no change in circumstances, other than the passage of time, that would justify these instant modifications.”

But in Gionet’s case, with no visible change in circumstances, and with pending state charges just like Konold, he ditched the ankle bracelet.

It’s certainly possible that the government, in the wake of the Eric Munchel decision (released the same day Gionet made his request), didn’t want to bother fighting this more aggressively. It’s possible they’re more sensitive to the claim that Gionet is a journalist than they let on — except that in the wake of this exchange, they’ve continued to arrest people making similar claims.

Or it’s possible something more interesting is going on. Ordinarily, a Nazi sympathizer facing a trespass charge wouldn’t have anything to deal to the government; nor would a trespass charge incent a defendant to make a deal.

Except that’s not the only exposure Gionet has or had.

On January 22, between the time Gionet was first charged and when he was arraigned, Federal prosecutors in Brooklyn charged Douglas Mackey in a conspiracy to interfere with others’ right to vote, based off Mackey’s social media campaign encouraging Hillary voters to vote by hashtag rather than casting a legal vote. Mackey was the only of the co-conspirators charged, but according to Luke O’Brien — who first broke Mackey’s true identity — Gionet was one of the four other co-conspirators described in the complaint.

Another of Mackey’s co-conspirators is Anthime “Baked Alaska” Gionet, a pro-Trump white nationalist who was arrested on Jan. 16 for his involvement in storming the Capitol on Jan. 6. Gionet also participated in the deadly white nationalist “Unite the Right” rally in Charlottesville, Virginia, in 2017. (A New York Times story reported Wednesday afternoon that Gionet was a co-conspirator, citing a source close to the investigation, and HuffPost can confirm that reporting based on the Twitter ID cited in the complaint.)

HuffPost was able to link the Twitter IDs in the complaint to Gionet and Microchip through previously collected Twitter data, interviews and evidence left by both extremists on other websites. In direct messages with this reporter last year, Microchip also confirmed that he was using the Twitter account associated with the user ID listed in the complaint.

In the time that nothing has been happening in Gionet’s January 6 charge, Mackey has been indicted and his team has been reviewing evidence. On March 29 — just after DOJ added a second attorney to the Gionet case — DOJ added a third attorney to Mackey’s case.

With five prosecutors between the two cases, things are clearly more complex than the filings suggest.

And that may be the change in circumstances that allowed Gionet to ditch his ankle bracelet.

Update: Michael Daughtry, accused of trespassing, also got to ditch his ankle bracelet after wearing it for a week.

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

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

Many Capitol rioters unlikely to serve jail time

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


Posts attempting to contextualize the investigation

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

Zip Tie Guy Eric Munchel Gets a Second Chance at Release

The DC Circuit just remanded the case of Zip Tie Guy Eric Munchel and his mother Lisa Eisenhart for reconsideration of their bid for release. Robert Wilkins wrote the opinion, joined by Judith Rogers; Gregory Katsas dissented in some but not all of the opinion.

I wrote here and here about how this was a close case. As such, this opinion will provide important guideposts for other January 6 making similar arguments.

The opinion agreed that January 6 posed an urgent risk to our democracy, generally presenting a broad authority to detain people. But it also emphasized that only some of the participants in the insurrection pose enough of a danger to afford exceptional authority to detain people.

It cannot be gainsaid that the violent breach of the Capitol on January 6 was a grave danger to our democracy, and that those who participated could rightly be subject to detention to safeguard the community. Cf. Salerno, 481 U.S. at 748 (“[I]n times of war or insurrection, when society’s interest is at its peak, the Government may detain individuals whom the government believes to be dangerous.” (citations omitted)). But we have a grave constitutional obligation to ensure that the facts and circumstances of each case warrant this exceptional treatment.

In the case of Munchel and his mom, the opinion found that the analysis of the danger that Munchel and his mom present to the community was not forward looking, and because they had not done a number of things — actually broken through barricades, assaulted cops, planned the operation, or abetted that process — their dangerousness was not sufficient to make their unwillingness to follow release conditions a factor. In particular, without the special circumstances of the vote certification and the violent mob, the mother and son likely would not pose the same threat to our country.

Here, the District Court did not adequately demonstrate that it considered whether Munchel and Eisenhart posed an articulable threat to the community in view of their conduct on January 6, and the particular circumstances of January 6. The District Court based its dangerousness determination on a finding that “Munchel’s alleged conduct indicates that he is willing to use force to promote his political ends,” and that “[s]uch conduct poses a clear risk to the community.” Munchel, 2021 WL 620236, at *6. In making this determination, however, the Court did not explain how it reached that conclusion notwithstanding the countervailing finding that “the record contains no evidence indicating that, while inside the Capitol, Munchel or Eisenhart vandalized any property or physically harmed any person,” id. at *3, and the absence of any record evidence that either Munchel or Eisenhart committed any violence on January 6. That Munchel and Eisenhart assaulted no one on January 6; that they did not enter the Capitol by force; and that they vandalized no property are all factors that weigh against a finding that either pose a threat of “using force to promote [their] political ends,” and that the District Court should consider on remand. If, in light of the lack of evidence that Munchel or Eisenhart committed violence on January 6, the District Court finds that they do not in fact pose a threat of committing violence in the future, the District Court should consider this finding in making its dangerousness determination. In our view, those who actually assaulted police officers and broke through windows, doors, and barricades, and those who aided, conspired with, planned, or coordinated such actions, are in a different category of dangerousness than those who cheered on the violence or entered the Capitol after others cleared the way.

[snip]

The District Court also failed to demonstrate that it considered the specific circumstances that made it possible, on January 6, for Munchel and Eisenhart to threaten the peaceful transfer of power. The appellants had a unique opportunity to obstruct democracy on January 6 because of the electoral college vote tally taking place that day, and the concurrently scheduled rallies and protests. Thus, Munchel and Eisenhart were able to attempt to obstruct the electoral college vote by entering the Capitol together with a large group of people who had gathered at the Capitol in protest that day. Because Munchel and Eisenhart did not vandalize any property or commit violence, the presence of the group was critical to their ability to obstruct the vote and to cause danger to the community. Without it, Munchel and Eisenhart—two individuals who did not engage in any violence and who were not involved in planning or coordinating the activities— seemingly would have posed little threat. The District Court found that appellants were a danger to “act against Congress” in the future, but there was no explanation of how the appellants would be capable of doing so now that the specific circumstances of January 6 have passed. This, too, is a factor that the District Court should consider on remand.

I suspect mom, at least, will get bail on remand. And I suspect other defendants will try to argue (some with likely success) that they fit the same categories as Munchel and his mom — willing participants in an insurrection, but not key enough players to detain awaiting trial.

Among the principles it lays out:

January 6 was a Constitutional risk, but some defendants were only a threat on that day with that mob

As noted, the Circuit agrees that January 6 presented such a risk to the country that extraordinary detention authorities may be necessary. It included a list of circumstances — similar to the ones that Beryl Howell laid out — that reach this heightened level of risk. Some defendants (particularly the far right lone actors who did not engage in violence personally) will likely be able to ask for review of their own detention. But others — including some of the Oath Keepers — will have the case for their detention reinforced because of their role aiding and abetting a concerted attack on democracy.

DC District judges can review detention remotely

While dicta, a footnote complains that it took so long — until they had been transported to DC — for the two to have a detention review in DC. It asks why a District judge could not have conducted the review remotely.

While COVID-19 issues caused a delay in the appellants’ transport to the District of Columbia, the record does not indicate why a D.C. District Judge could not have heard this matter prior to February 17, even if the appellants were in another location. Ultimately, this issue, while troubling, is not presented as a ground for reversal in this appeal.

This is something that has come up in other cases, repeatedly. This panel, at least, seems to agree that a DC District judge can review detention remotely.

DC District judges don’t have to defer to the local Magistrates’ decisions if there’s new evidence

Munchel and his mother argued that once the Magistrate in Tennessee judged them not to be a danger, the District had no authority to review that determination. The Circuit disagrees, but only with regards to the circumstances of this case, where the government provides new evidence to the District.

The statute concerning review of a Magistrate Judge’s release order says nothing about the standard of the district court’s review, see 18 U.S.C. § 3145(a), and we have not squarely decided the issue.3 We need not break new ground in this case, because as the appellants maintain in their briefing, Munchel Reply Mem. 8, n.3, the government submitted substantial additional evidence to the district judge that had not been presented to the Magistrate Judge, including the 50- minute iPhone video, a partial transcript of the video, and several videos from Capitol CCTV.4 As a result, this was not an instance where the District Court made its dangerousness finding based on the same record as was before the Magistrate Judge. Here, the situation was more akin to a new hearing, and as such, the issue before the District Court was not really whether to defer (or not) to a finding made by the Magistrate Judge on the same evidentiary record.

3 This court stated long ago, in dictum, in a case arising under the predecessor Bail Reform Act that district courts review such prior determinations with “broad discretion.” Wood v. United States, 391 F.2d 981, 984 (D.C. Cir. 1968) (“Evaluating the competing considerations is a task for the commissioner or judge in the first instance, and then the judges of the District Court (where they have original jurisdiction over the offense) have a broad discretion to amend the conditions imposed, or to grant release outright, if they feel that the balance has been improperly struck.”).

Before we’re done, I wouldn’t be surprised if the DC Circuit is asked to weigh in directly on the standard of review here.

DC District judges can consider whether a defendant will abide by release conditions

Munchel and his mother had tried to limit when a District judge can consider whether they will abide by release conditions, not to reconsider bail but only to revoke it.

Second, we reject the argument that the District Court inappropriately relied on a finding that appellants were unlikely to abide by release conditions to detain them, because that factor is applicable only to revocation of pretrial release. The District Court’s finding as to appellants’ potential compliance is relevant to the ultimate determination of “whether there are conditions of release that will reasonably assure . . . the safety of any other person and the community.” 18 U.S.C. § 3142(f) and (g). Indeed, other courts have found a defendant’s potential for compliance with release conditions relevant to the detention inquiry.

[snip]

While failure to abide by release conditions is an explicit ground for revocation of release in 18 U.S.C. § 3148(b), it defies logic to suggest that a court cannot consider whether it believes the defendant will actually abide by its conditions when making the release determination in the first instance pursuant to 18 U.S.C. § 3142.

This has come up with other defendants. That said, this opinion as a whole says that a refusal to abide by release conditions by itself is not enough to detain someone. This part of the ruling will be particularly impactful for those detained because either a belief in QAnon or Nazism suggests a general disdain for our existing government.

A taser counts as a weapon

Munchel and his mother also argued that their alleged crimes don’t merit detention because the taser Munchel brought with him is not a weapon. Not only did the Circuit disagree, but it also readily applied the analysis to Eisenhart’s abetting exposure.

Third, we reject Munchel and Eisenhart’s arguments that the charged offenses do not authorize detention. Under 18 U.S.C. § 3142(f)(1)(E), detention is permitted if the case involves “any felony . . . that involves the possession or use of a . . . dangerous weapon.” (emphasis added). Two of the charges in the indictment meet this description: Count Two— entering a restricted building “with intent to impede and disrupt the orderly conduct of Government business . . . while armed with a dangerous weapon,” in violation of 18 U.S.C. § 1752(a)(1) and (a)(2) and 18 U.S.C. § 2 (aiding and abetting charge for Eisenhart); and Count Three—violent entry or disorderly conduct, again “while armed with a dangerous weapon,” in violation of 40 U.S.C. § 5104(e)(1) and (e)(2) and 18 U.S.C. § 2. Indictment, ECF No. 21 at 2. The Bail Reform Act thus explicitly authorizes detention when a defendant is charged with committing certain felonies while possessing a dangerous weapon, as is alleged in this indictment.5

5 Eisenhart’s argument that a taser is not a dangerous weapon— which Eisenhart raises for the first time in reply, and which Munchel seeks to adopt in his reply—is without merit. The relevant statute, 40 U.S.C. § 5104(a)(2)(B), defines the term “dangerous weapon” to include “a device designed to expel or hurl a projectile capable of causing injury to individuals or property. . . .” While the record contains no evidence or proffer as to how Munchel’s taser operates, a taser is commonly understood as a device designed to expel a projectile capable of causing injury to individuals. See Cantu v. City of Dothan, 974 F.3d 1217, 1224–25 (11th Cir. 2020); Mattos v. Agarano, 661 F.3d 433, 443 (9th Cir. 2011) (“[A] taser uses compressed nitrogen to propel a pair of ‘probes’—aluminum darts tipped with stainless steel barbs connected to the taser by insulated wires—toward the target at a rate of over 160 feet per second. Upon striking a person, the taser delivers a 1200 volt, low ampere electrical charge. The electrical impulse instantly overrides the victim’s central nervous system, paralyzing the muscles throughout the body, rendering the target limp and helpless.” (internal alterations and quotation marks omitted)). Thus, at this stage, the evidence sufficiently demonstrates that Munchel’s taser is a dangerous weapon under the statute.

This ruling matters specifically for Richard “Bigo” Barnett (who also brought a taser with him), but also holds that the weapons enhancement on the 1752 and 5104 charges that other defendants face will merit detention. The Circuit also readily approved Eisenhart’s exposure on account of Munchel’s taser. That matters because many defendants are charged with abetting certain conduct that merits detention.

Detention analysis remains individualized

Munchel and his mom, like virtually all defendants arguing for release, have compared their own case to that of others who got released. Because Munchel only raised this in his reply, the Circuit didn’t address the comparison per se. But said that the District Court is in better position to review such claims.

Finally, Munchel and Eisenhart argue that the government’s proffer of dangerousness should be weighed against the fact that the government did not seek detention of defendants who admitted they pushed through the police barricades and defendants charged with punching officers, breaking windows, discharging tasers at officers, and with planning and fundraising for the riot. See Munchel Reply Mem. at 9–12. Appellants did not raise this claim before the District Court and the government did not substantively respond to it on appeal because Appellants raised it for the first time in Munchel’s reply. Whatever potential persuasiveness the government’s failure to seek detention in another case carries in the abstract, every such decision by the government is highly dependent on the specific facts and circumstances of each case, which are not fully before us. In addition, those facts and circumstances are best evaluated by the District Court in the first instance, and it should do so should appellants raise the issue upon remand.

As several people watching the hearing for Connie Meggs’ attempt to get release, every detention fight going forward will have to account for this one. With its broad support for holding conspirators accountable for the violence of others, it may not help Meggs all that much. But it will crystalize these ongoing detention disputes.

Update: I’m wrong. Judge Amit Mehta just released Meggs.

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)