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Roger Stone’s Stop the Steal Effort Included as Proof of Milkshake’s Obstruction

Dan “Milkshake” Scott pled guilty to obstruction and assault yesterday. He faces 41 to 63 months of prison.

His plea does not include a cooperation agreement, so unless DOJ has kept that hidden in some way (everything about the Proud Boy cases is weird, so I don’t rule it out, and his plea also does not include the standard cooperation paragraph, which often means someone has already been interviewed), Scott will not be called as a witness in the Proud Boy leader trial to explain why he yelled, “Let’s take the fucking Capitol” two hours before the Proud Boys did just that.

Indeed, his statement of offense is interesting for the abundant evidence that Scott knew his objective for the day was to stop the vote certification, but did not know Joe Biggs and Ethan Nordean’s plans for doing so. In addition to his “take the fucking Capitol” comment, for example, Scott is quoted as gleefully saying, “Oh god, we’re going to the Capitol, guys.” And he admitted that,

Scott’s purpose in being in this restricted area was to influence or impede Congress’s certification of the results of the 2020 presidential election, which was occurring inside the U.S. Capitol Building.

But the statement of offense also repeatedly describes that he was not aware of the alleged conspiracy to obstruct the vote or engage in sedition that Biggs and Nordean are being tried for.

  • Scott did not attend any meetings with Ethan Nordean, Joseph Biggs, or Zachary Rehl on January 5, 2021
  • Scott also was not a member of the Proud Boys’ coordination chats on Telegram, “Ministry of Self-Defense” (or “MOSD”) or “Boots on the Ground,” and did not know the content of the messages in those chats
  • Prior to his entry onto Capitol grounds, Scott had not been told the details of any plans made by Proud Boy leaders, such as Nordean, Biggs, and Rehl, for January 6

This statement of offense, even without a cooperation component, is written just as prosecutors on the Leader prosecution team would need it to support their argument that the Leaders used people like Scott as “tools,” not co-conspirators, to achieve their alleged goal of stopping the vote certification. The statement describes how the Leaders moved behind him, and then after he assaulted two cops, they went up the stairs towards the Capitol.

Scott did not go up the stairs after the assault. Once he saw them going up the stairs, Scott believed that that [sic] the group of Proud Boys led by Nordean, Biggs, and Rehl would attempt to enter the building to obstruct Congress’s certification of the vote including through the use of force if necessary.

Milkshake’s complete dissociation from the even the Telegram chats used to plan the attack and his acute awareness that the goal was to storm the Capitol is interesting for the one other detail used to substantiate his obstruction: Roger Stone.

It turns out, Milkshake was helping Roger Stone intimidate Rick Scott on January 3.

On January 3, 2021, Daniel Scott, Worrell, and other members of their local Proud Boy chapter attended a “Stop the Steal” rally in Naples, Florida. The headline speaker at this event was Roger Stone. Daniel Scott helped Stone up a ladder that Stone used to talk to the crowd. During this speech, Stone asserted that the 2020 presidential election was rigged due to voting fraud, and urged Florida’s U.S. Senators to vote against the certification of the Electoral College vote. Stone stated: “Rick Scott has a fundamental choice. He will either stand up for the constitution…” At that point, Daniel Scott yelled “Or give him the rope!” At another point in the rally, Daniel Scott chanted “Stop the Steal!” into a megaphone, along with the crowd at the rally.

I can’t recall another statement of offense that mentions that earlier Stop the Steal efforts — not even Brandon Straka or Baked Alaska, who were key players in the movement (though both, inexplicably, got off without pleading to obstruction). Even Jacob Chansley, who played a key role in storming the AZ Capitol prior to January 6 and who did plead to obstruction, does not include that earlier action.

Again, unless I’m mistaken, this is also the first mention of Roger Stone in a statement of offense, even among the cooperating Oath Keepers who had interaction with Stone in the weeks before the attack on the Capitol.

Milkshake, in this statement of offense, is described as a tool used by Nordean and Biggs.

But, by description, Roger Stone is what made him one.

Trump Worked with People Who Allegedly Worked with the Proud Boys to Obstruct the Peaceful Transfer of Power

By my count, at least 14 people are known to have pled guilty to some kind of conspiracy on January 6, with four more cooperating against them. Another four were found guilty of one or more conspiracy in November’s Oath Keeper verdict. Eighteen people, in one way or another have been convicted of conspiring to prevent the peaceful transfer of power on January 6, most by obstructing the vote certification.

Trump played a key part in all those conspiracies.

Ronnie Sandlin, for example, first started planning to go, armed, to DC in response to Trump’s December 19 tweet, posting on December 23 that he planned to “stop the steal and stand behind Trump when he decides to cross the rubicon.” After he watched Trump’s speech on January 6, Sandlin did a live stream where he said, “I think it is time to take the Capitol.” Once he arrived at the Capitol, Sandlin and co-conspirator Nate DeGrave participated in tactically critical assaults on cops in two places, the East door and the door to the Senate gallery. After Sandlin helped him get into the gallery, Josiah Colt then rappelled from the gallery to the Senate floor.

Like Sandlin, Brad Smith started arming himself and planning to come to DC in response to Trump’s December 19 tweet.

The call to action was put out to be in DC on January 6th from the Don himself. The reason is that’s the day pence counts them up and if the entire city is full of trump supporters it will stop the for sure riots from burning down the city at least for awhile.

By December 31, Smith predicted, “Militias will be there and if there’s enough people they may fucking storm the buildings and take out the trash right there.” Smith and his co-conspirator, Marshall Neefe, participated in an assault on cops using an 8′ by 10′ Trump sign. And after the attack he boasted that the mission was successful because “we literally chased them out into hiding. No certification lol.”

Trump played a slightly different role in the Oath Keepers conspiracy. The Oath Keepers — Stewart Rhodes above all — viewed Trump as a means to prevent Biden’s election, because as President he could invoke the Insurrection Act and with it (the Oath Keepers believed) make the militias a legal arm of the state, defending Trump. Rhodes repeatedly called on Trump to invoke the Insurrection Act — on November 9, December 12, December 23, and January 6.

He dictated a note to Trump after January 6 asking him to call on the militias as his army to stop Biden from taking power.

For the most part, none of the channels via which Rhodes tried to speak directly to Trump (including Kellye SoRelle’s attempt to work through Rudy Giuliani’s son) are known to have reached Trump.

One of his attempted interlocutors, though, undoubtedly had access to Trump: Roger Stone, on whose Friends of Stone list Rhodes was sharing his plans for insurrection shortly after the election.

DOJ has exploited at least four phones owned by members of the Friends of Stone list: Rhodes and SoRelle, Owen Shroyer, and Enrique Tarrio. Probably DOJ asked for content from Ali Alexander as well (though he disclaimed having any Signal texts to the January 6 Committee).

While a jury found all the Oath Keepers guilty of obstructing the vote certification, with the key exception of Kelly Meggs (who was also in contact separately with the Proud Boys, Roger Stone, Ali Alexander, and alleged 3 Percenter Jeremy Liggett, who in turn had ties to the MAGA Bus Tour) as well as Jessica Watkins, it found the greater part of their conspiracy either overthrowing the government or interfering with with official duties: not obstructing the vote count. Their larger plan to keep Trump in power used different means than Trump used.

That’s not true of the Proud Boy Leaders, who are three days into their trial.

Not only did the Proud Boys allegedly pursue the same plan that Trump was pursuing — obstructing the vote certification on January 6 — but they were in communication with people who were in communication, and central to, Trump’s plan: most notably, Alex Jones, Ali Alexander, and Roger Stone. They were in communication with people who were in communication with people close to Trump during the attack.

Even their telephony records show that Enrique Tarrio, Joe Biggs, and Ethan Nordean were in contact with Alex Jones and Owen Shroyer during the period.

Records for Enrique Tarrio’s phone show that while the attack on the Capitol was ongoing, he texted with Jones three times and Shroyer five times.124 Ethan Nordean’s phone records reflect that he exchanged 23 text messages with Shroyer between January 4th and 5th, and that he had one call with him on each of those days.125 Records of Joseph Biggs’s communications show that he texted with Shroyer eight times on January 4th and called him at approximately 11:15 a.m. on January 6th, while Biggs and his fellow Proud Boys were marching at and around the Capitol.126

Given the known communication habits of the men, it’s possible there are Signal or Telegram communications that were unavailable to the J6C as well.

Alex Jones and Ali Alexander knew in advance they would lead the mob to the Capitol (the January 6 Report offers an unpersuasive explanation that the request came exclusively from Caroline Wren). Roger Stone had planned to join them, probably until he got cranky about being denied a speaking role on the morning of January 6. Mike Flynn wanted to latch on, as well, until the General got too cold and had to go back to his posh hotel room. “Hell no,” he said, according to Caroline Wren. “It’s freezing.”

Meanwhile, even as Shroyer was in touch with Biggs, Alexander was in touch with Caroline Wren, who remained at the Ellipse, and asked for 5-minute updates on the Trump’s progress to the Capitol (the text in question appears to have come from Wren, but may not have been provided in Alexander’s production).

The communication between Proud Boys and Jones in real time is critical because once the riot police showed up and slowed the attack, the Proud Boy leaders pulled up, effectively waiting until Jones appeared. And after Jones did appear, he told the mob following him that Trump was coming to give another speech — something Alexander, and so almost certainly Jones — knew to be false because Wren had told Alexander. Nevertheless, Jones led his mob to the East steps, riled them up with a 1776 chant, and left them there, where they were soon joined by the Oath Keepers (led by Kelly Meggs, who also was in touch with Alexander) and Joe Biggs and some other Proud Boys (including one who had been directing traffic). That collective mob breached the East door of the Capitol, opening a second major front on the Capitol and adding to the invasion of the Senate chamber.

There are rioters who were sentenced to two months in jail because they followed Alex Jones credulously to the top of those steps and joined the mob storming the Capitol.

And it wasn’t just Jones and Alexander who were in touch with Trump’s handlers.

Mark Meadows was, per Cassidy Hutchinson, in communication with Stone about his plans for January 6, at a time when Stone still planned to march to the Capitol with Jones and Alexander.

LIZ CHENEY: Thank you, Mr. Chairman. Before we turn to what Ms. Hutchinson saw and heard in the White House during the violent attack on the Capitol on January 6th, let’s discuss certain communications White House Chief of Staff Mark Meadows had on January 5th. President Trump’s associate, Roger Stone, attended rallies during the afternoon and the evening of January 5th in Washington, DC On January 5th and 6th, Mr. Stone was photographed with multiple members of the Oath Keepers who were allegedly serving as his security detail.

As we now know, multiple members of that organization have been charged with or pled guilty to crimes associated with January 6th. Mr. Stone has invoked his Fifth Amendment privilege against self-incrimination before this committee. General Michael Flynn has also taken the Fifth before this committee. Mr. Stone previously had been convicted of other federal crimes unrelated to January 6th.

General Flynn had pleaded guilty to a felony charge, also predating and unrelated to January 6th. President Trump pardoned General Flynn just weeks after the Presidential election, and in July of 2020, he commuted the sentence Roger Stone was to serve.

The night before January 6th, President Trump instructed his Chief of Staff Mark Meadows to contact both Roger Stone and Michael Flynn regarding what would play out the next day. Ms. Hutchinson, Is it your understanding that President Trump asked Mark Meadows to speak with Roger Stone and General Flynn on January 5th?

CASSIDY HUTCHINSON: That’s correct. That is my understanding.

LIZ CHENEY: And Ms. Hutchinson, is it your understanding that Mr. Meadows called Mr. Stone on the 5th?

CASSIDY HUTCHINSON: I’m under the impression that Mr. Meadows did complete both a call to Mr. Stone and General Flynn the evening of the 5th.

In an earlier interview, when she was still represented by Stefan Passantino, she had attributed the idea for this call to Peter Navarro or a Navarro staffer; the Navarro staffer who had let Mike Flynn into the White House on December 18, Garrett Ziegler, was another White House contact of Ali Alexander’s, in addition to Wren.

All this matters because of the way conspiracy law works, as laid out in the bullet points from Elizabeth de la Vega that I always rely on.

CONSPIRACY LAW – EIGHT THINGS YOU NEED TO KNOW.

One: Co-conspirators don’t have to explicitly agree to conspire & there doesn’t need to be a written agreement; in fact, they almost never explicitly agree to conspire & it would be nuts to have a written agreement!

Two: Conspiracies can have more than one object- i.e. conspiracy to defraud U.S. and to obstruct justice. The object is the goal. Members could have completely different reasons (motives) for wanting to achieve that goal.

Three: All co-conspirators have to agree on at least one object of the conspiracy.

Four: Co-conspirators can use multiple means to carry out the conspiracy, i.e., releasing stolen emails, collaborating on fraudulent social media ops, laundering campaign contributions.

Five: Co-conspirators don’t have to know precisely what the others are doing, and, in large conspiracies, they rarely do.

Six: Once someone is found to have knowingly joined a conspiracy, he/she is responsible for all acts of other co-conspirators.

Seven: Statements of any co-conspirator made to further the conspiracy may be introduced into evidence against any other co-conspirator.

Eight: Overt Acts taken in furtherance of a conspiracy need not be illegal. A POTUS’ public statement that “Russia is a hoax,” e.g., might not be illegal (or even make any sense), but it could be an overt act in furtherance of a conspiracy to obstruct justice.

Co-conspirators don’t all have to meet in a room together and agree to enter a conspiracy. That can happen (and did, in the Oath Keepers’ case) via a series of communications which networks everyone.

The demonstrative exhibit prosecutors used in the Oath Keeper trials showed how the various communications channels included everyone, even if some members of the conspiracy only interacted with a limited group of other co-conspirators.

I circled Rhodes and SoRelle in pink to show that even in the Oath Keeper trial, prosecutors treated the Friends of Stone list part of the communications infrastructure of the conspiracy.

Here’s what the larger conspiracy looks like, reflecting  the known communications between Rhodes, Meggs, Tarrio, Biggs, and Nordean and Jones and Stone, and the known communications between Jones and Stone and Alexander with Trump or his handlers, like Meadows, Wren, and Ziegler by way of Navarro.

The numbers and letters in parentheses come from one or another of the indictments charging conspiracy. As you can see, Trump’s known actions map onto the known, charged overt acts of various conspiracies to obstruct the vote count like a mirror.

Obviously, the pink part of this table has not been charged (yet). And it may not be unless prosecutors win guilty verdicts in the Proud Boys case. It also may not be if the obstruction charge gets narrowed on appeal.

For reasons I laid out here, the Proud Boys trial is far more complex than the Oath Keepers trial. And in the Proud Boys trial, like the Oath Keepers trial, prosecutors don’t have a clear map showing that the plan was to occupy the Capitol; instead they have testimony that Biggs and Nordean kept consulting, and everyone took orders from them, and those orders had the effect of sending cells of Proud Boys off to breach parts of the building. So it is not at all certain that prosecutors will win convictions of the men — Tarrio, Biggs, and Nordean — who were working with people who were working with Trump and his handlers.

But this is one of the means via which DOJ has been working to hold Trump accountable since just months after the attack (I first laid this out in July 2021, long before most commentators understood how DOJ was using obstruction).

Even with the disorganized conspiracy (Sandlin and friends), prosecutors have carefully shown how the men took Trump’s December 19 tweet as an explicit instruction, took instructions from a WildProtest flyer put out by Ali Alexander, believed Trump had ordered them to march to the Capitol. There are hundreds more rioters who took Trump’s December 19 tweet as an instruction, though in the case of Sandlin and his co-conspirators, they took steps that were critical to the occupation of the Capitol and the Senate chamber in response.

But with the Proud Boys, to an extent thus far only seen with Oath Keeper Kelly Meggs, the communication ties, via a two step network, to Trump’s own actions and directions. And with the Proud Boys, that coordination builds off years-long relationships, particularly between Biggs and Jones and Stone, and through them, to Trump.

Everyone was working towards the same goal: to prevent Congress from certifying Joe Biden’s victory. There were, in various places, explicit agreements made. There were, as with Trump’s Stand Back and Stand By comment that prosecutors used to kick off this trial, more implicit agreements as well.

And DOJ is now at the point where it is beginning to show how those agreements, explicit and implicit, all worked together to make the assault on the Capitol successful.

Conspiracy guilty verdicts

Oath Keepers Stewart Rhodes, Kelly Meggs, Jessica Watkins, Kenneth Harrelson, Kelly Meggs, Mark Grods, Caleb Berry, James Dolan, Joshua James, Brian Ulrich, Todd Wilson (11 conspiracy verdicts)

Proud Boys Matthew Greene, Charles Donohoe, Jeremy Bertino, with Isaiah Giddings, Louis Colon, and James Stewart cooperating (3 known conspiracy verdicts)

Disorganized Militia Ronnie Sandlin, Nate DeGrave, with Josiah Colt cooperating (2 conspiracy verdicts)

“Patriots” Marshall Neefe and Charles Smith (2 conspiracy verdicts)

Witnessing the Proud Boys

As I laid out here, defense attorneys in the Proud Boy leaders case have recently claimed that the government is pressuring potential defense witnesses to dissuade them from testifying.

Proud Boy defense attorneys are alleging that prosecutors are pressuring their defense witnesses with threats of prosecution. One person about whom their making the claim — about MPD lieutenant Shane Lamond, who has been suspended since last February under investigation that he helped the Proud Boys — their complaints are not credible. About others — including a female witness who might either be journalist Amy Harris, who spent a lot of time with Tarrio after he was released and to whom he said a lot of obvious self-exonerating statements, or Eryka Gemma, the woman who gave Tarrio a plan about The Winter Palace — defense attorneys claim they can provide sworn statements that prosecutors interviewed a witness without her attorney present. (I don’t trust either side in this case, so we shall see what actually gets filed.)

That is, as with the Oath Keeper trial, defendants are claiming that prosecutors are making witnesses unavailable with threats of prosecution (and as with the Oath Keeper trial, only some of those claims are credible).

The original complaint was aired in Enrique Tarrio’s bid to get his indictment thrown out unless DOJ immunizes Lieutenant Shane Lamond, an MPD cop whom Tarrio would alert to Proud Boy plans in advance. Tarrio submitted an updated motion to dismiss after the contentious December 2 hearing where this was aired, in which he argued that because the discovery he got didn’t show evidence of Lamond committing a crime, the government’s recent warning to Lamond that he’s at risk for an obstruction charge must be no more than an attempt to dissuade him from testifying in Tarrio’s defense.

During the past two years, the investigation, including the production of millions of pages of discovery, countless phone records and data dumps, thousands of hours of videos, and imbedded CHS informants, there has been no clear evidence of Lamond engaging in any illegal activity. The government was informed by the defense months ago of their intention to call Lamond to testify. At no point was Lamond in danger of being prosecuted, until now. On the eve of trial, the government contacted counsel for Lamond and informed him that Lamond’s actions might be considered obstruction of justice into Tarrio’s investigation and he may be prosecuted. Waiting until now is a tactical decision by the government to prevent Tarrio from exercising his constitutional right to present a defense. Knowing that Lamond’s testimony would exonerate Tarrio at trial and depriving Tarrio of his constitutional right is impermissible.

Preventing Lamond from testifying by holding an ostensible continuing investigation over his head violates Tarrio’s Sixth Amendment right to compulsory process of witnesses who would testify in his defense. If the government declines to immunize Lt Lamond, then the indictment against Tarrio should be dismissed.

But even in Tarrio’s description of his contacts with Lamond, the exchange sounds as much like a cover story as anything else.

Tarrio informed Lamond of the Proud Boys January 6 plans; to wit: they would not be wearing colors to protect themselves from being attacked and stabbed by Antifa as they had been on two previous occasions; they planned to be present to watch Trump’s speech; Tarrio planned to speak at the rally; they planned to protest the results of the election, and later that night they planned to party with plenty of beer and babes.

The Proud Boys eschewed colors to blend in, not for protection. There’s no evidence they ever planned to attend Trump’s speech (indeed, their choice to skip it is one detail that undermines all their excuses).

This particular challenge is highly unlikely to work. Lamond was suspended in February (not coincidentally shortly after FBI fully exploited Tarrio’s phone and even before Tarrio himself was charged), which wouldn’t have happened without fairly damning evidence. And back when the suspension was first disclosed, Tarrio made light of the contacts.

But Tarrio also said that during marches, Lamond would tell him the location of counterdemonstrators. Tarrio said that was so his group could avoid conflict, though after one violent night of demonstrations, police accused the Proud Boys of roaming the city looking for and instigating fights, targeting people they believed identified as antifa, or antifascists.

“He was just a liaison officer for when we held rallies,” Tarrio said of Lamond. He denied their relationship extended beyond that and said he is not a confidential informant for anyone on the D.C. police force.

“They’re just trying to get anybody at this point,” Tarrio said of investigators. “I only told him, ‘We’re coming into town and we’re going to hold this protest.’ That’s as far as the relationship went.”

Tarrio has been pursuing this line of defense since August, with little traction. Nothing is new about this scrutiny of Lamond, so the claim DOJ only recently floated some legal jeopardy doesn’t hold up.

Nevertheless, there have been several additional filings explaining the basis for the claims that the government was trying to make defense witnesses unavailable. In response to prosecutors’ observation at the hearing that Nordean was making allegations without backup, for example, Nordean’s attorneys submitted a “notice” of witness intimidation that provided few new details (though did submit the 302 for that specific witness to Judge Tim Kelly).

On December 2, counsel added there was evidence that after one such witness informed the government that she did not agree with the government’s claim that Nordean and others had conspired to attack the Capitol or use violence on January 6, a government prosecutor only then announced—in the same November 2021 interview—that the witness would be prosecuted for an offense. Shortly thereafter, counsel continued, an agent called this witness to advise that the prosecutor’s charging threat was inflated. In response, AUSA Erik Kenerson stated in the December 2 hearing that the notion that the “[g]overnment has somehow pressured witnesses, threatened witnesses, gone to witnesses when they were represented by counsel without counsel present, all of that is just categorically false.” The government added, “there has been nothing that the Government — that — has done that would warrant putting John Does on a witness list.”

The filing provided an excuse to reveal the identity of and submit a declaration from the witness, Adrienna DiCioccio, which would otherwise be sealed. She described how, in a November 2021, she told FBI Agents and prosecutors that she didn’t think Nordean and others were planning for violence on January 5.

During this second interview, the agents and prosecutors asked for my recollections about the evening of January 5 in the Airbnb residence where Ethan and others were gathered. I do not recall the specific words I used, but I informed the interviewers generally that I disagreed with the suggestion that Ethan and the others in his group were planning violence or an attack on the Capitol on January 6. I generally informed the agents and prosecutors that, as someone involved in planning peaceful events with the Proud Boys in the past, I disagreed with their suggestion that Ethan and others in the Airbnb were planning violence the following day in D.C.

But as to the substance of Nordean’s complaint — that the government was trying to pressure her not to testify by hanging criminal prosecution over her head — even DiCioccio’s filing undermined that, to say nothing of details provided in the government’s response. Most importantly, a transcript excerpt from an earlier interview shows she was warned of potential criminal exposure in a September 2021 interview, before she provided the testimony that — Nordean claims — led prosecutors to raise the specter of prosecution.

Ms. DiCioccio was interviewed twice: once in September 2021, and once in November 2021. It is the second interview that Nordean references and that is largely the subject of Ms. DiCioccio’s declaration. The transcript of Ms. DiCioccio’s first interview, which was produced to the defense in June 2022, belies any claim that the government only informed her of her potential criminal liability after “she did not agree with the government’s claim that Nordean and others had conspired to attack the Capitol or use violence on January 6,” as Nordean contends. Id. The below quote is from page 202 of the transcript of the first interview:

MS. DiCIOCCIO: Okay, because you guys were mentioning, you know, earlier, the other person cooperated very well with everything. You know, turned themselves in. I know you guys have things to go over, but, what am I looking at, at the moment? Should I be really scared? Should I be –

[AUSA]2 : The investigation is ongoing. Decisions are still being made. I mean, there are criminal charges that are out there, potentially, and maybe even likely. But it all depends on what we’re looking at (indiscernible).

MS. DiCIOCCIO: Okay.

[AUSA]: Again, I would say, let’s keep the lines of communication open.

MS. DiCIOCCIO: Yeah.

[AUSA]: So that we can have those types of conversations when it’s time to pull those types of triggers.

MS. DiCIOCCIO: Okay.

In other words, Ms. DiCioccio was informed in September 2021, well before the interview during which Nordean claims she was threatened with charges for refusing to tell the government what it wanted to hear, that she “potentially, maybe even likely” faced criminal charges. This was not news to her: video evidence of her offense conduct captures her saying, “Are we all gonna get arrested?” as she entered the Capitol building. After the first interview, Ms. DiCioccio agreed to voluntarily meet with prosecutors and agents again in November. As noted above, Ms. DiCioccio’s declaration is inaccurate, and the government submits that the FD-302 submitted by counsel describes an unremarkable interaction between prosecutors, FBI agents, and a potential cooperating witness.

2 The AUSA who participated in this interview was not any government counsel of record in this case.

The government response also shows that, not only did Nordean’s attorneys not submit anything to substantiate the allegation that the government met with DiCioccio without her retained counsel present, they provided her with information on how to get one.

Ms. DiCioccio’s declaration does not substantiate Nordean’s inflammatory accusations. For example, contrary to counsel for Nordean’s representations at the December 2, 2022, hearing, Ms. DiCioccio does not assert in her declaration that she had counsel who was not present during the interview. See Dec. 2, 2022, Hr’g Tr. at 58; 579-1. Nor does she say, as defense counsel asserts, that she had an attorney at the time of the interview. The FD-302 instead memorialized that the prosecutor suggested Ms. DiCioccio seek counsel and went so far as to provide her with a form to help her obtain a court-appointed one. In other words, rather than seeking to circumvent Ms. DiCioccio’s access to counsel (as Nordean wrongly asserted), the government affirmatively facilitated it.

There’s nothing all that compelling about the fact that a witness who breached the Capitol might be at legal exposure herself. While snide, the government suggests that DiCioccio was just upset because of her own criminal exposure (criminal exposure that, over a year later, has yet to be charged).

It is not surprising that the subject of a criminal investigation may be upset after being questioned about her conduct that led to that investigation. But any unease on Ms. DiCioccio’s part was not caused by impropriety by the government. It was instead caused by her own criminal conduct on January 6, 2021, and the fact that she may have to reckon with that conduct.

And again, all this happened long before any talk of trial witnesses.

One part of Zach Rehl’s parallel complaint might have more merit though (or is, at a minimum, of some interest procedurally).

It was filed — as was Nordean’s “notice” — on December 9, a week after the contentious hearing. But that would also put it more than a week after Rehl co-traveler Isaiah Giddings’ plea deal, in which he described that he didn’t even know the vote certification was happening on January 6 but he followed Rehl along obediently. There were a number of things in Giddings’ statement of offense that implicate Rehl, including that Rehl believed “someone had to do something” about the purportedly stolen election and that Rehl tried to find some bear spray in the middle of the riot. But as Rehl attorney Carmen Hernandez notes in the filing, Giddings did not admit to a plan to obstruct the vote certification.

Despite an inordinately lengthy Statement of Offense for a misdemeanor and multiple mentions of Mr. Rehl, there is no assertion that Mr. Rehl had a plan to interfere with Congress by force or corruptly.

Much of the rest of Hernandez’ filing requests either that Kelly immunize Giddings’ two co-defendants, Brian Healion and Freedom Vy (whom she doesn’t name), or sever Rehl from his own co-defendants and delay trial until after Healion and Vy’s case is resolved, making them available as witnesses.

At this level, this is just tactical. DOJ seems to be delaying a bunch of the Proud Boy cases until after the Proud Boy leader trial, but for reasons that arise from managing a larger conspiracy. Healion and Vy are only differently situated from DiCioccio in that they’ve already been charged, but they’re both genuinely implicated themselves.

Of more interest is Hernandez’ complaint about Jeff Finley (again, she doesn’t name him), the last co-traveler with Rehl the day of the attack. As she describes, Finley pled guilty last April, but his July sentencing was continued until February, putting it, like the Philly area Rehl co-travelers, after the trial.

One of the witnesses noted above entered a guilty plea to a misdemeanor on April 6, 2022.3 The statement of facts entered in the case shows that the witness does not implicate Mr. Rehl in any attempt to interfere with Congress by force or corruptly. Sentencing in the case was originally 4 scheduled for July 19, 2022. At the request of AUSA Jason McCullough, the July sentencing was vacated. Sentencing is now to be scheduled on February, 13, 2023 or a later date, after Mr. Rehl’s 5 trial is completed. Because a defendant retains a right to assert a claim to remain silent under the 6 Fifth Amendment until after sentencing isimposed, Mitchell v. United States, 526 U.S. 314 (1999), that witness is now unavailable to Mr. Rehl. By delaying the sentencing of this witness until after Mr. Rehl’s trial has concluded, the government has placed that witness outside Mr. Rehl’s Sixth Amendment right to compulsory process and has impeded Mr. Rehl’s right to present a complete defense.

As with Giddings’ statement of offense, Hernandez judges that Finley’s doesn’t support the charges against Rehl, though it does incriminate him. Plus, there is at least one additional Finley proffer that was provided to the Proud Boy leaders by last May. But given other discovery deadlines, Hernandez should know by now if such a proffer was expected to result in trial testimony (in which case, she would have no problem obtaining his testimony as a government witness).

This, too, is tactical (and an effort to preserve all this for appeal). But I find it curious that Finley also objected to testifying under subpoena.

Undersigned counsel has spoken to counsel for each of the three witnesses. All three have 2 indicated that if subpoenaed to testify, their clients would assert their Fifth Amendment rights to remain silent in light of the posture of their own cases. The delays that have made these witnesses unavailable are attributable to government conduct.

That doesn’t seem to accord with being a voluntary, cooperative witness for DOJ. It would suggest that he may still face vulnerability even in spite of his plea agreement, such as if DOJ discovered something he said in a proffer was not true.

The Proud Boys, far more even than the Oath Keepers, had ties to a great number of people who have their own exposure for January 6. And unlike the Oath Keepers, rather than flipping their way up to the leaders, DOJ seems to be starting with this leader conspiracy, with the likelihood of follow-on charges for others after the fact (in fact, Stewart Rhodes’ very good attorneys, James Bright and Phil Linder, just replaced John Pierce as Joe Biggs’ co-traveler Paul Rae’s defense attorneys). That’s an unusual way of prosecuting a complex conspiracy (though as I’ve written, the Proud Boy leaders may also be a necessary step before prosecuting those between them and Trump). But at least partly as a result, that means there are a great number of Proud Boys and associates out there, potentially friendly witnesses, but also defendants themselves.

And that, the Proud Boy leaders claim, amounts to an unconstitutional deprivation of defense witnesses

Update: Here’s the government response to Rehl (it cites another complaint from Nordean). In the section on Finley, DOJ says sometimes the government finds inculpatory video after someone pleads guilty.

The government notes – without suggesting that this is true in Mr. Finley’s case – that the January 6 investigation is replete with instances where a defendant has entered a plea of guilty only to have the government or counsel identify additional instances of criminal conduct by the defendant through diligent review of videos. Thus for many defendants, even those who have been sentenced, it is possible that defense counsel may believe that their client continues to have a legitimate Fifth Amendment privilege.

“We Have a Plan. I’m with Rufio” … But the Government Does Not

There was a big hole in the middle of the Oath Keepers prosecution that likely was a big part of the reason jurors didn’t convict on more of the conspiracy charges. Just after 2:30PM the day of the attack, field leader Michael Greene called Stewart Rhodes. A minute later, Kelly Meggs called Rhodes, who conferenced Meggs into the ongoing call with Greene.

Altogether, the three men were on the phone together for 1 minute 37 seconds, and Rhodes and Greene were on the call for several minutes afterward. The call immediately precedes the First Stack busting into the Capitol, and happens at the same time that Joshua James and others are racing to the Capitol on their golf cart.

By context, it appears to be the moment where Rhodes decided to use the attack on the Capitol to advance his plan to decapitate the government. But for all the cooperating witnesses DOJ flipped in the Oath Keeper case, they never got any of these three to cooperate, and so never were able to prove what was said on the call. On the stand, Rhodes made up some bullshit about difficulties connecting.

While by context it seems to be the moment that these three leaders made a decision on operationalizing their plan, which they then directed others to implement. But absent a cooperating witness from that call, they didn’t have that proof.

And so they got limited conspiracy convictions.

There’s a similar big hole in the middle of the Proud Boys case, one — a status conference just made clear — may be even more fatal for the government’s case. In the time on the evening on January 5 when everyone was trying to figure out what to do given the arrest of Enrique Tarrio, Ethan Nordean and Joe Biggs were temporarily AWOL.

When Biggs reappeared, he described “meeting w[i]th a lot of guys” and that “We have a plan. I’m with rufio,” that is, Nordean.

To this day, even those of use who’ve followed the case closely don’t even know with whom Biggs and Nordean met, much less what the plan was.

And that’s a problem because every Proud Boy witness, even senior prosecution cooperating witnesses Jeremy Bertino and Charles Donohoe, will testify that they knew of no plan to attack the Capitol in advance of January 6.

Absent that, DOJ will point to the plan to meet at the Washington Monument, the ways the Proud Boy plan deviated from the norm (including ditching Proud Boy colors to blend in), the orderly marching, the choice not to show up at Trump’s speech at all and instead to go to the Capitol and rile up a mob of normies.

They’ll put cooperating witness Matthew Greene on the stand to explain that he understood they were crowding the Capitol to pressure Pence.

They’ll presumably put their latest cooperating witness, Isaiah Giddings, on the stand to admit that, “before January 6, Giddings did not know that Congress would be certifying the election results in the Capitol building on January 6,” but that in advance of the attack, “leaders, including Rehl, Biggs, and “Rufio,” would meet separately from the larger group.” Giddings will testify that after the attack, “Rehl, and the other Proud Boys were laughing and celebrating what they had done; namely, stopping the certification proceeding.”

They’ll point to comments afterwards, taking credit for it all.

Tarrio asserted to the Proud Boys “Elders” who had approved his formation of the MOSD, “Make no mistake. We did this.” Similarly, Bertino told Tarrio “You know we made this happen,” and “I’m so proud of my country today,” to which Tarrio replied, “I know.” The next day, Rehl similarly told an MOSD chat group that he was “proud as fuck what we accomplished,”

There is far, far more evidence in the actions the Proud Boys took that day that they did have a plan and succeeded in implementing it beyond their wildest dreams. But they don’t have that plan.

And two likely developments will likely make proving they had a plan more difficult.

First, Proud Boy defense attorneys are alleging that prosecutors are pressuring their defense witnesses with threats of prosecution. One person about whom their making the claim — about MPD lieutenant Shane Lamond, who has been suspended since last February under investigation that he helped the Proud Boys — their complaints are not credible. About others — including a female witness who might either be journalist Amy Harris, who spent a lot of time with Tarrio after he was released and to whom he said a lot of obvious self-exonerating statements, or Eryka Gemma, the woman who gave Tarrio a plan about The Winter Palace — defense attorneys claim they can provide sworn statements that prosecutors interviewed a witness without her attorney present. (I don’t trust either side in this case, so we shall see what actually gets filed.)

That is, as with the Oath Keeper trial, defendants are claiming that prosecutors are making witnesses unavailable with threats of prosecution (and as with the Oath Keeper trial, only some of those claims are credible).

More damaging still for their case, an exchange at the end of a status hearing today suggested that Judge Tim Kelly is likely to prohibit the government from arguing that the Proud Boys were using other rioters are “tools” in their conspiracy (I wrote about this dispute here). That’s sound legally; the government argument doesn’t fit into existing conspiracy law. But it will make it difficult, if not impossible, for prosecutors to prove sedition, which requires the use of force. It is true that key Proud Boys expressed a goal to rile up the “normies” who would then carry out the violence on January 6. It’s even true that probably dozens of rioters said they were following the Proud Boys — but the prosecution here has shown no hint they would call those “normies” as witnesses. It is true that Ryan Samsel — the guy who kicked off the entire riot — had an exchange with Joe Biggs right before the attack. But DOJ never got Samsel to cooperate.

There’s a lot of evidence that the Proud Boys orchestrated the riot and conspired with others in doing so. But it seems likely that prosecutors have the same kind of evidentiary holes, including a potentially fatal one where the plan they finalized on January 5 is, that the Oath Keeper prosecutors did.

Update: On a late re-read, I realized I left out a key caveat on the issue of a plan: People do acknowledge there was a plan. That plan included meeting at the Washington Monument instead of at Trump’s speech, for example. The question is whether it included the attack on the Capitol (the language I’ve added, in bold).

Skull and Bones: The Proud Boys’ Non-Conspiratorial Secret Society?

The morning of January 5, according to the government sentencing memo for him, Proud Boy Nicholas Ochs texted Ethan Nordean to say that, in light of the arrest of Enrique Tarrio the day before, he and Nordean were, “senior leadership in DC till Enrique is sprung.”

Following Tarrio’s arrest, Ochs messaged Nordean the morning of January 5. He said, “I guess we’re senior leadership in DC till Enrique is sprung. I’ll be in today or tonight. Lemmie know anything relevant.” Nordean replied, “Ok will do,” and they traded cell phone numbers.

Och’s own sentencing memo addresses that comment, but doesn’t explain it.

[T]he government relies extensively on a single message by Mr. Ochs, where he offhandedly referred to himself as a leader, Dkt. 94, pg. 9, and a tasteless message in which Mr. Ochs states he is “pro-violence,” id., at 4, the government is unable to point to a single actual instance wherein Mr. Ochs actually performed the duties of a leader or acted out in violence during the January 6th riots.

He doesn’t explain what became of the message, if anything (there’s no mention of any calls between Ochs and Nordean, and Nordean’s phone was not operational during the riot).

At least on the surface, it looks like Nordean blew Ochs off.

Instead, and before that comment, Ochs makes a very strained comment — limited to before attending the rally and discussion about their planned activities for the day –about what he said to other Proud Boys on the day of January 6, while he and Nicholas DeCarlo were attending the Trump speech and most of the other the other Proud Boys were marching around DC.

On the morning on January 6, Mr. Ochs and DeCarlo went to the rally where the President was addressing the crowd. Mr. Ochs was dressed in normal civilian clothing and did not wear any special military or other riot gear—unlike the many others who attended the rally, dressed in military/assault garb, signaling their violent intentions. Mr. Ochs was armed only with a smartphone.

Before attending the rally, Mr. Ochs did not communicate with any other Proud Boy members regarding their planned activities for the day. Indeed, at no point during the rally or the resulting assault on the Capitol, did Mr. Ochs coordinate with other Proud Boy members. As is stated in the Statement of Facts, though Mr. Ochs did come across other Proud Boy members in Washington, these were chance encounters and not the result of any prior planning. During the rally itself, Mr. Ochs was unable to live stream the event because the local cellular system was overwhelmed, and given his physical location, he was unable to hear the president’s speech.

At the conclusion of the rally, after the President finished speaking on the Ellipse, Mr. Ochs began seeking out the larger crowd which had begun moving towards the Capitol building—the first of many bad decisions that day. [my emphasis]

Given the evidence, that’s a credible claim.

What’s not covered by Och’s narrow (albeit for sentencing, critical) denials was Ochs’ participation in some small member chat groups, including one, called Skull and Bones, that included Nordean and Enrique Tarrio.

Leading up to January 6, 2021, Ochs participated in several Proud Boys chats on an encrypted messaging application, including one called “Official Presidents’ Chat” and one called “Skull and Bones.” Skull and Bones consisted of a small group (approximately twelve) of the Proud Boys’ Elders, including Enrique Tarrio and Ethan Nordean, both of whom have been charged with seditious conspiracy and other crimes for their roles leading the Proud Boys on January 6. See United States v. Nordean et al., 21-cr-175 (TJK). Some of these chats ended and then were reconstituted (because of concerns about being “compromised”) in the days leading up to January 6.

Of some interest: while the Proud Boy Leaders prosecution used Och’s November 2020 advocacy to wait before embracing violence as a way to show the Proud Boys ratcheted up their willingness to embrace violence.

[A]s the defendants, their co-conspirators, and their tools got further from the election and closer to Inauguration, the language they used to discuss the transfer of power became more desperate and more reflective of a willingness to take matters into their own hands. See Ex. 1 (proposed trial exhibit referenced at 11/18 hearing, with Proud Boys “elder” counseling: “I’m pro violence but don’t blow your load too soon.”).

Here, the focus is on Ochs’ attempts to persuade others to await the Supreme Court, which he was sure would deliver victory to Trump.

In Skull and Bones, on November 7, 2020, the group reacted to Biden being declared the winner of the election. Tarrio said, “Dark times if it isn’t reversed…and if it’s reversed…civil war.” Another user commented, “It’s civil war either way.”

Ochs disagreed: “It’s really not. The odds are with us because of the Supreme Court boys. I’m pro violence but don’t blow your load too soon.” He continued, “Not to be an anti-murder buzzkill but I really think this ISN’T fucked. Once it is, let’s go wild.” Ochs advised the group, “Bush/gore ruling took till December…Trump has a MUCH stronger case.” Ochs said, “Americans are weak and don’t want to fight. Them more so than us, but what’s really going to matter to the common man is what the Supreme Court says. And it will say.”

Another member noted, “Interesting that Trump got that woman through just before this huh. Could be the ace up his sleeve.” Ochs agreed and reiterated his belief that the Supreme Court was the best option to overturn the election: “Don’t fuck up the ruling. It’s a better chance than fighting.” He advised the group not to turn violent yet: “Not till the law enforcement institutions [are] weakened or more on our side. We lose right now.” But he told the group: “I’ll still chimp out if I’m wrong about the Supreme Court tho…we just have to TIME IT RIGHT and DO IT SMART.” Another member proposed that “veterans with combat experience” should “form militias.”

Ochs also expressed optimism in Parler posts that the Supreme Court would overturn the election results, including an image of Justice Thomas as a video game character:

Tarrio and others discussed a conference call on December 19 after Trump announced the rally.

Ochs’ prediction that the Supreme Court would overturn the election results did not come true. Instead, courts rejected dozens of lawsuits challenging the election results. On December 19, 2020, then-President Trump invited his followers to Washington, D.C. for a “wild” protest. The Proud Boys’ chats soon filled with talk of what they would do there. The same day as Trump’s December 19 tweet, in the small-group Skull and Bones chat, one member said, “Trump is calling for proud boys to show up on the 6th.” Ochs, Tarrio, and others then discussed arranging a conference call.

But Ochs is only described as a participant in the larger 50 and 35 person Ministry of Self Defense chats leading up to the riot. His top-level access seems to have remained that Skull and Bones chat.

After cooperating witness Charles Donohoe — though he is not named — is described as attempting to reconstitute the main MOSD list after Tarrio’s arrest, Ochs suggests doing so on the Skull and Bones list (and elsewhere it says it was reconstructed).

At 7:11 p.m., [Donohoe] posted a message in the MOSD Main chat, which read, “Hey have been instructed and listen to me real good! There is no planning of any sorts. I need to be put into whatever new thing is created. Everything is compromised and we can be looking at Gang charges.” The member then wrote, “Stop everything immediately” and then “This comes from the top.”

[snip]

Ochs asked if the Skull and Bones chat, which included Tarrio, should be deleted. Another user responded, “I did tell him to delete telegram off his phone right before he was arrested, so I’m hoping he listened to me.” Ochs sent two responses: “Yep. Smacc it off your phone if there’s trouble. Can always redownload no problem” and “*Fed has joined the chat*”

The sentencing memo describes Ochs getting the message to show up at the Washington Monument twice, on the Main MOSD chat and another unnamed one.

On January 5, in in a reconstituted version of the Main MOSD chat created the evening of January 4, another user sent a message with instructions for the next day: “Everyone needs to meet at the Washington Monument at 10am tomorrow morning! Do not be late! Do not wear colors! Details will be laid out at the pre meeting! Come out []as patriot!”6 ”

6 Ochs received a similar message in another Proud Boys encrypted chat involving approximately 33 members.

But he didn’t follow those directions; he went to the Ellipse speech with Nicholas DeCarlo instead.

But by 4:18PM, when the riot was still very much ongoing, Ochs was back on Skull and Bones in chats in which Tarrio also participated — including someone instructing Tarrio to tell Don Jr to stop condemning the violence.

In the Skull and Bones chat, at 4:18 p.m., another member reposted a photograph of Ochs and DeCarlo smoking cigarettes in the Crypt, and asked, “@Nick_Ochs you inside? Lol.” Ochs replied, “Yeehaw.” Soon after, one member said, “So what now,” and another (whose username indicated he was from the United Kingdom) said, “from our end it looks like Trump ain’t going peacefully.” Tarrio responded, “They’ll fear us doing it again…” When asked, “So what do we do now?” Tarrio replied, “Do it again.” Another user told Tarrio to “text your boy Don jr and tell him to stfu. This is PB country now.”

One explanation for this is that Ochs might have liked to be a more central player in the Proud Boys. But was not, and so he didn’t take part in the Nordean (and Joe Biggs-run) operation on the day of the riot.

And Nicholas DeCarlo joined him in not taking part.

DeCarlo goes even further attempting to distance himself from the Proud Boys — and the “nihilistic” behavior of those who were insufficiently insouciant while rioting.

As the Court can readily determine from both the agreed upon Statement of Facts in this case, as well as the photographic and video evidence, the defendant did not travel to the Capitol as a member of the Proud Boys, a group that he resigned from in 2019. He did not wear their distinctive clothing; he did not coordinate with other Proud Boy members (other than his co-defendant) prior to coming to Washington D.C.; and more importantly, he did not participate in any of the organized violence attributed to the group. In addition, while the Government argues that Mr. DeCarlo acted with “glee” during the riot, that adverb misapprehends the defendant’s intent. While Mr. DeCarlo’s insouciant/sarcastic nature and comments before, during, and after the events are blameworthy, he did not evince the angry, nihilistic demeanor displayed by a significant number of the other January 6 defendants.

The claim he wore no distinctive clothing is irrelevant, as that was what Proud Boys were ordered to do that day. And his complaint that he still bears a Proud Boy tattoo raises questions why he hasn’t removed it to limit the “lifelong” consequences of once having belonged to the group.

The defendant acknowledges that he became a member of the Proud Boys Dallas Fort Worth Chapter in in 2017, but he is adamant that resigned from the organization in 2019 because it was becoming “too political.” Mr. DeCarlo is well aware that his prior membership in the Proud Boys will have lifelong consequences; if nothing else, he had the words Proud Boys” tattooed on his left arm. The defendant is emphatic, however, that he left the Proud Boys in 2019 and the Government’s effort to connect him to the group thereafter is based upon nothing more than conjecture, suspicion, and innuendo and ought to be rejected by this Court. 1

And when disavowing the import of December calls with Tarrio and Gavin McInnes, DeCarlo doesn’t name McInnes.

1 The Government notes that the defendant stated he was “in contact” with Enrique Tarrio, the head of the Proud Boys, in December 2019. The Government has no idea whether the two men actually spoke and if so, what was the topic of conversation. Similarly, the prosecution states that based upon data collected from his cellular phone, Mr. DeCarlo “called” another Proud Boy leader the day that the former President announced that he would be speaking on the Mall on January 6, 2021. Again, the Government does not state if the data reveals the two men actually spoke and the prosecution makes no representation as to the nature of any such conversation. [my emphasis]

Here’s how DOJ described those claimed and real contacts.

DeCarlo flew from Texas and met with Ochs in Virginia, where they shared a hotel room. That night, DeCarlo posted a 15 minute “selfie” video stream titled BlackVill’d: Twas the Night Before Revolution!!! to the Murder the Media/ThunderdomeTV Facebook page. DeCarlo said he spoke to “Enrique,” “who isn’t even allowed in D.C.,” referring to Proud Boys leader Enrique Tarrio, who had been arrested the day before and ordered to stay out of Washington, D.C. 3 DeCarlo stated that they would be getting a “nice early interview” with Enrique the next day. He also said that he had “a lot of shit planned for tomorrow.”

[snip]

Evidence recovered from DeCarlo’s phone indicates that, on December 19, 2020, the same day that then-President Trump announced plans for a “wild” rally in Washington, D.C., DeCarlo called Gavin McInness, the founder of the Proud Boys.

There’s a lot unsaid here, and it goes further than DOJ’s choice not to name Donohoe and DeCarlo’s choice not to name McInnes. It may suggest a factionalism in the Proud Boys that has since grown more acute.

Remember, too, that after doing the mandatory FBI interview with Ochs, the government chose not to do one with DeCarlo. So on October 4, DeCarlo went and did one with the January 6 Committee instead (and is trying to claim credit for that).

October 4, 2022, the defendant participated in a virtual interview with staff members of the House Select Committee for several hours. Mr. DeCarlo gave them a narrative of the events that led to his presence at the Capitol on January 6, 2021 and responded to the Committee’s questions. He also voluntarily provided them with access to the contents of his electronic devices.

Again, there’s a lot that has been said and left unsaid.

Litigating “‘Normies’ Smash[ing] Some Pigs to Dust” in the Proud Boy Leader Conspiracy

Ten months ago, I wrote a post describing how the Proud Boys were a key part of the overall assault on the Capitol, because they took “normies” and made sure they were deployed to maximal advantage, including having them do the dangerous job of “smash[ing] some pigs to dust.”

The plan required six types of participants to make it work:

  • People (Trump, Rudy, and Mo Brooks) to rile up large numbers of normies
  • Someone (Alex Jones) to guide the normies to the Capitol, probably while communicating with the Proud Boys as they kicked off the riot
  • People at the Capitol (Proud Boys and associates) to tactically deploy the normies as a weapon, both to occupy the Capitol and to create a very real risk to the members of Congress
  • Members of Congress (Paul Gosar and others) willing to create conflict that could be exploited in any of a number of ways
  • Masses and masses of people who, starting even before the election, had been led to believe false claims that their country was under threat; those masses did two things:
    • Enter the Capitol, with a varied level of vocal enthusiasm for the mayhem occurring, and make it far more difficult for cops to put down the assault
    • “Smash some pigs to dust”

Whether or not that conception is true — and just as importantly, whether DOJ can introduce the evidence to prove it at trial — has been the subject of recent pretrial litigation in the Proud Boy Leader case that may determine the outcome of the trial:

As I’ve been saying for 14 months, whether this approach succeeds at the Proud Boy trial will determine the degree to which higher ranking people who were conspiring with Joe Biggs and Enrique Tarrio can be implicated in a conspiracy with those who attacked the Capitol, as opposed to an incitement or aid and abet theory of criminal exposure. And whether it succeeds is neither an easy legal question nor, for a jury assessing guilt beyond a reasonable doubt, evidentiary one.

The opening filing in this dispute argues that even if the subordinate Proud Boys and affiliates who marched on the Capitol didn’t know all the plans and objectives of the conspiracy, they were still part of it. As DOJ describes, the Proud Boy leaders, including John Stewart (Person 3), who secretly entered into a plea deal, probably in June, intentionally aimed to get lower ranking Proud Boys to obey unthinkingly.

It is important to note that it does not matter whether all these members of the conspiracy understood and “agreed on the details” of the scheme, so long as they agreed on the “essential nature of the plan.” United States v. Gatling, 96 F.3d 1511, 1518 (D.C. Cir. 1996); cf. ECF 71 at 46 (Court’s ruling on Nordean and Biggs detention, explaining that “even if someone who was a part of the conspiracy expressed surprise at the way events unfolded that day or what the ultimate outcome was . . . that does not necessarily mean there wasn’t a conspiracy of the kind alleged.”). And in fact, the evidence will show that the conspiracy’s leaders purposefully kept subordinates in the dark about the precise details, urging them to “turn off [their] brains” and “follow the . . . guys you’re with.” ECF 475 at 15 (Statements Motion, quoting statement from Person 3 to MOSD members). In assembling their group of foot soldiers, the leader defendants sought loyal followers, not co-equal partners. Cf. United States v. Mahdi, 598 F.3d 883, 891 (D.C. Cir. 2010) (finding that evidence of defendant exercising “organization control” to keep “the worker bees in line” was intrinsic evidence of conspiracy). Willing followers all, the fact that each may not have been fully privy to the entire plan in no way negates their being co-conspirators.1 Co-conspirators need not share all of the charged criminal objectives of the conspiracy, so long as they formed some agreement with the defendants. Hypothetically, if a particular member of the marching group lacked sufficient understanding of what was happening in Congress to make him part of a conspiracy to corruptly obstruct an official proceeding in violation of 18 U.S.C. § 1512, he could still be part of a conspiracy to use force to oppose the lawful transfer of Presidential power in violation of 18 U.S.C. § 2384 or a conspiracy to forcibly prevent law enforcement officers from discharging their duties in violation of 18 U.S.C. § 372. His conduct is relevant regardless. [my emphasis]

Based on that logic, the filing argues that the tactically important violence of a number of Proud Boys (plus Robert Geiswein, who is being prosecuted by Proud Boy prosecutor Erik Kenerson) was part of the conspiracy.

  • Daniel Lyons Scott, aka “Milkshake,” a Proud Boy, led a crowd in shoving a line of officers to force their way up a set of steps leading to the Capitol.3
  • Alan Fischer and Zachary Johnson, both Proud Boys, were part of a crowd trying to force its way through a line of officers defending an entrance to the Capitol building known as the “tunnel” on the Lower West Terrace. Johnson passed weapons up to rioters on the front line of the crowd, including a sledgehammer and a can of chemical spray.4
  • Edward George, a Proud Boy, engaged in a shoving match with an officer while trying to force his way into the Capitol through the Senate Carriage Door.5
  • Steven Miles, a Proud Boy, shoved and threw punches at officers in an altercation at the west front of the Capitol, and used a plank of wood resembling a two-byfour to break a window to make entry into the Capitol building.6
  • Christopher Worrell, a Proud Boy, sprayed a chemical irritant while in the restricted area of the Capitol grounds.7
  • Robert Gieswein, who is not a Proud Boy but who joined the marching group and wore orange masking tape as insignia showing affiliation with the marching group, sprayed officers with chemical irritant at multiple times and places inside the Capitol.8

Note, I believe all of these defendants are still awaiting trial (though Milkshake was for a time plea-curious), and thus far, only Milkshake and Worrell have been charged with conspiracy, with each other. All the rest, and their co-defendants, could well be superseded with conspiracy charges if this structure succeeds at trial.

Also of note, this government argument preceded (and to some degree explains) the leak about Proud Boy informants who had no knowledge of a plan to attack the Capitol. The defendants want to argue that if Proud Boys didn’t know of the plan to attack the Capitol, there must have been no conspiracy to do so. DOJ argues that, particularly given the hierarchy and the planned close hold on the plan imposed in advance, it doesn’t matter if they knew the overall plan and in fact the ignorance of lower level Proud Boys was actually part of the plan.

But the government is not relying just on the actions of Proud Boys and affiliates. It argues that the Proud Boys “harnessed” others who were at the attack.

Evidence of the conspiracy is not bound by the actions of the co-conspirators. As the evidence will show, on January 6, the defendants sought to harness the actions of others to achieve their objective of forcibly opposing the lawful transfer of Presidential power. In so doing, the defendants used these individuals as “tools.”

That the government is arguing this is unsurprising. As I’ve noted repeatedly, senior Proud Boys discussed doing this explicitly the morning of the attack.

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

Person-2: Would be epic

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

Person-2: We are the people

UCC-1: Fuck yea

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

Person-2: Fuck these commie traitors

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

But the two sentence paragraph, above, is all that the opening motion describes with respect to “harnessing” “normies.”

Nordean’s short response on this point notes that the government had not yet proven the bulleted list of defendants were co-conspirators, much less provided any precedent to introduce the actions of people not alleged to be co-conspirators as evidence of the conspiracy.

Even more inappropriate is the government’s attempt to show the jury countless actions by nondefendants on January 6 who the government concedes are not “co-conspirators” even under its relaxed standards. Gov’t Mot., pp. 6-7. Although the government has no evidence that these protesters joined the charged conspiracies, it says their actions are somehow admissible because they are “tools” of the conspiracy. The government cites no rule or case law holding that the criminal actions of nondefendant “tools” of a conspiracy—conceded nonmembers—can be admitted against defendants in their criminal case. There is none. The government’s novel “tools” concept has no discernable limiting principle.

This argument accompanies Nordean (and Zach Rehl’s) First Amendment argument that the poor Proud Boys were simply engaged in a non-violent protest outside the Capitol when a bunch of unaffiliated people showed up and violently attacked the Capitol.

After which the Proud Boys took credit for what those purportedly unaffiliated people had done.

(Nordean’s filing also anticipated the extended sealed argument about a bunch of informant materials that he would later claim to be surprised by.)

In reply, the government uses analogies for other types of crime. This interlocking conspiracy, DOJ argues, is like a complex drug scheme where someone might be involved in delivering the drugs but not the money laundering.

An analogy illustrates the fallacy of Nordean’s argument. Imagine a defendant charged with one count of conspiring to possess cocaine with the intent to distribute and one count of laundering the proceeds of that drug trafficking. Imagine that an uncharged co-conspirator transported narcotics on the defendant’s behalf but had no involvement in, or knowledge about, the laundering of the money. On Nordean’s reasoning, the co-conspirator’s conduct would be excluded at trial because it was only related to “a conspiracy” to traffic drugs and not “the conspiracy” to commit both object offenses. ECF 505 at 2 (emphasis Nordean’s). See Joint Proposed Jury Instructions (submitted to the Court on 11/2/2022), at 18 (“To have guilty knowledge, the defendant need not know the full extent of the conspiracy or all of the activities of all of its participants. It is not necessary for the defendant to know every other member of the conspiracy.”).

Before DOJ describes how the “normies” “harnessed” in the attack are like “money mules” in a financial transaction, it cites the discussion in advance of inciting the “normies” or leading them as the tip of a spear.

Contrary to Nordean’s telling, though, there is nothing novel about the principle that the actions of third parties can advance a conspiracy even if those parties are not full members of the conspiracy. The notion that the conspiracy could operationalize other individuals as a force multiplier is not an invention of the government; to the contrary, the conspirators expressly discussed it. See, e.g., ECF 440-1 at 20 (Transcript of MOSD meeting where Bertino explains: “[T]hey’re gonna follow us now because, you know, we’re the tip of the spear.”); ECF 111-1 at 4 (discussion on morning of January 6 about hopes that “normies burn that city to ash today” and “smash some pigs to dust,” which was “going to happen” because normies “have no adrenaline control . . . They are like a pack of wild dogs.”).

Indeed, for example, it is common for financial schemes to involve the use of “money mules” who knowingly conduct transactions at the perpetrators’ direction while remaining unwitting to the essential nature of the arrangement. See, e.g., United States v. Thomas, 999 F.3d 723, 727-28 (D.C. Cir. 2021). The conduct of those “money mules” is relevant evidence of the financial scheming defendant’s criminal intent and unlawful conduct. This case is factually different, but the basic theory is the same. The limiting principle is whether, on the evidence at trial, a jury could reasonably find a factual nexus between the actions of the conspirators and the actions of the tools. See Fed. R. Evid. 104(b) (“When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist.”). [my emphasis]

There was a hearing on all this on November 18 at which the government introduced a new angle to its argument about “harnessing” the “normies” (it was live so there was no call-in). Joe Biggs (whose lawyers are representing few other January 6 defendants, and so many not appreciate how many January 6 defendants — whether trespassers or assailants — claim they just got “caught up,” including a bunch who cited the Proud Boys as inspiration) describes the argument this way:

The Government asserted at argument that what guns were to the Oath Keepers on January 6, non-party protestors were to the Proud Boys. It further attempted to explain what it meant by this clumsy analogy when it asserted that the Proud Boys “weaponized” third parties.

[snip]

Perhaps mindful of the difficulties its arguments presented, the Government asserted that the defendants had “weaponized” third parties, either fellow members of the Proud Boys, members of other groups, or so-called “normies” unaffilated with any group, to engage in acts of violence. The Government did not argue just how percipient agents were transformed into little more than zombies, or tools, at the disposal of the defendants.

[snip]

The analogy to “mules” in narcotics cases in unavailing. In the case of passive mules, that is a party unknowingly carrying a prohibited item from one location to another, the mule lacks knowledge and intent to commit a crime. They are used as a transportation device. They are agents acting on purposes all their own but used by others to accomplish unlawful aims The Government is unclear whether it seriously intends to argue that protestors on January 6, 2021, were used without their knowledge, forced, somehow, to carry on as foreign objects the ideas of another. One suspects the Government cannot mean this, otherwise why would they prosecute the nearly 1,000 individuals charged with crimes requiring intent?

Nordean, whose lawyers do represent a slew of other defendants (though usually those who had more culpability themselves), responds this way.

[T]he government proposes to show the jury the criminal actions of individuals on January 6 who are (a) nondefendants, (b) not members of the charged conspiracies, (c) not members of the Proud Boys, and (d) not linked to the Defendants through a recognized principle of liability such as conspiracy, aiding and abetting, solicitation, or “willfully causing an act to be done.” ECF No. 494, pp. 3-7. The government describes the relevance of such evidence as follows: “the ‘tools’ of the conspiracy [were] deployed by the defendants in furtherance of their criminal objectives.” Id., p. 3 (emphasis added). “These ‘tools’ served as instruments of the defendants to carry out their criminal objective. While unwitting to the criminal objective, they were employed to take action on behalf of and in furtherance of the criminal objective.” Id. (emphasis added). According to the government, this group includes all “normies” whom the Defendants “sought to ‘let [] loose’ on January 6.” Id. Although the government does not say it in plain English, its “tools” argument aims to show the jury any and all criminal acts by any actor on January 6 on the contradictory relevance theory that these Defendants caused all of those acts and yet, at the same time, are not “criminally liable” for any of them. ECF No. 494, p. 7.

In the November 18 hearing, the Court indicated that the “tools” evidence might satisfy the test of relevance even if the government could not establish that the Defendants are legally responsible for the “tools’” actions under a recognized theory of liability.2 The Court suggested that relevance may lie in the following argument: the government alleges that the Defendants conspired to use “normies” to further their conspiratorial aims and thus the “jury should be permitted to see” what Defendants “achieved by mobilizing the crowd.” ECF No. 494, p. 4.

However, embedded in the government’s argument is a factual premise failing which the test of relevance cannot be satisfied. Whether acts of violence on January 6 by “normies” were caused or “mobilized” by the Defendants is a fact question. If those acts were not caused by the Defendants’ “mobilization,” they are not relevant under the government’s novel argument. A counterfactual shows this to be the case. Suppose Normies 1-4 rushed past barriers, ran into the Capitol, and assaulted police officers. They have never heard of the Proud Boys, nor did they see or hear the Defendants on January 6. Displaying their actions to the jury cannot demonstrate the “manner and means of the defendants’ conspiracy,” ECF No. 494, p. 3, as there is no causal relationship to speak of.

In response, the government will try to contend that even absent any causal relationship between the Defendants’ actions and those of “normies,” the latter are relevant inasmuch as the Defendants allegedly dreamed of being or aspired to be an instigator of the normies on January 6. But while Defendants’ alleged pre-January 6 comments about riling up the normies may in that case still hold relevance as to the nature/scope of the alleged criminal agreement, the actions of the normies themselves would not be relevant. Absent any causal relationship between the Defendants’ actions and the normies’ criminal acts, the latter can logically show neither that the conspiracy “succeeded” nor that the Defendants’ alleged agreement somehow “planned” the normies’ actions even where unilaterally undertaken without knowledge of Defendants’ desires.

[snip]

Here, the government has adduced no evidence to show that the actions of the “normies” or other nondefendants were caused by the Defendants’ actions. ECF No. 494, pp. 3-7. None exists. The government has not adduced the statement of any “normie” or other nondefendant to the effect that their acts were “caused” by the Defendants. [my emphasis]

The bolded language may be the only place in the papers where the Proud Boy defendants address the repeated explicit reference in their Telegram threads to riling up “the normies.” But Nordean gets at a critical issue: The government has proof that the Proud Boys intended to “harness” the “normies.” He’s arguing they don’t have proof, perhaps in the form of witness testimony, that hundreds of other January 6 defendants did what they did because of actions of the Proud Boys. (If pressed, the government could come up with at least a dozen witnesses who did talk about following the Proud Boys, but I trust from Nordean’s claim that they haven’t committed to doing so, and one subtext of this fight is the aborted effort by DOJ to get Ryan Samsel to enter a cooperation agreement in which he would testify about what Biggs told him before Samsel set off the entire attack.)

The government, partly because Nordean is also challenging the reliance on earlier evidence and events at the two earlier MAGA Marches, describes first how the Proud Boy Leaders cultivated a certain kind of recruit leading up to the attack, using comms to show senior Proud Boy leaders picked members who had embraced violence to be part of MOSD and anticipated needing a lot of bail money.

The escalation of both violence and violent rhetoric among the Proud Boys from November through January is not only highly probative to the charged conspiracy, it cannot be separated therefrom. After the Ministry of Self Defense was approved as a chapter, the defendants in leadership set about hand-selecting other individuals to join the group. In deciding who to admit, the defendants drew on their knowledge and experience with them at prior rallies. The fact that some of the recruits came into the chat and nearly immediately made references to violence, without rebuke by Nordean or any other leader, is additional evidence both (1) why they were chosen for MOSD, and (2) what they had come to understand about MOSD’s purpose based on  their prior communications with the defendants and other leaders of the conspiracy.4 See Ex. 3 (proposed trial exhibits comprising messages from MOSD recruits upon joining group, expressing (1) willingness to “log into Minecraft”; (2) shared experience of previous “seek and destroy” mission in DC “where we had a target which was Black Lives Matter plaza”; (3) expectation that members were going to need “a lot of bail money”; (4) understanding that “protest time” means “punch ‘em in the face”; and (5) appreciation that “to be in this group, you need to . . . be able to fucking kick ass if you need to kick the fuck ass.”).

It responds to the complaints about the government’s theory of “riling the normies” by pointing to specific moments when the Proud Boys opened the way through which hordes would swarm.

To be clear, the government does not plan to argue that every member of the crowd on January 6 was a tool of the defendants’ conspiracy. The tools will consist primarily of those Proud Boys members and affiliates whom the defendants recruited and led to the Capitol as part of their marching group. As the government explained, many of these individuals would also qualify as co-conspirators who shared a criminal objective with the defendants (even if, as far as the followers understood, that objective was only to commit assault). See 11/18/22 Tr. at 66 (“[W]e would argue, first, that these people are co-conspirators.”); 119 (“[P]art of what the tools theory does is says, even if these people were just signed up to commit violence without knowing why or against whom it would be directed, that’s still relevant.”). In some other instances, of course, the tools will be apparent strangers whose conduct nonetheless has a causal relationship with the defendants. For example, video evidence at trial will show that numerous rioters surged toward the Capitol as a result of Nordean, Biggs, and others destroying a black metal fence that was obstructing the crowds’ progress. Video will likewise show that many rioters entered the Capitol through a window that Pezzola smashed. All these facts lend credence to Tarrio’s own evaluation of the causal relationship at work: “Make no mistake, we did this.”

Stated thusly, it is a more modest argument than the government could have made and may one day make. There’s no reference to Alex Jones delivering the mob created by Donald Trump to his allies (and former employee, in the case of Biggs) in the Proud Boys, for example. Instead, the government seems to be looking barrier by barrier to show that the Proud Boys created the breach through which thousands ran.

I’ve been expecting an argument like this for months. But I admit it’s a close legal call.

I keep thinking about two things as I read this: First, a chilling line in cooperating witness Matthew Greene’s statement of offense, where he likened the moment on January 6 when things turned from peaceful to violent to his time in Afghanistan.

Greene noticed that during and following the chanting, the mood in the crowd changed, and it reminded him of his time in Afghanistan while stationed there with the U.S. Army, when protests changed from peaceful to violent.

While I don’t know the military experiences of Joe Biggs or other Proud Boy veterans, what Greene was describing was the Proud Boys deliberately stoking an insurgency the likes of which many of the men present (both Proud Boys and others) had fought in Iraq and Afghanistan. Some of these guys know how to incite an insurgency because they fought them for so long overseas.

The other thing that’s not clear is who DOJ will have as witnesses. I don’t think Pezzola’s lawyers have submitted an active filing for weeks or months, a possible sign Pezzola is close to or has already flipped; given that he literally breached the Capitol, making way for everyone else, if he were a cooperating witness at trial it would be far easier to make this argument. And while the very first filing in this series described Aaron Whallon-Wolkind (Person 2) as part of the core conspiracy…

Specifically, the jury will be called upon to evaluate whether the defendants and their co-conspirators – including Enrique Tarrio, Joseph Biggs, Ethan Nordean, Zachary Rehl, Charles Donohoe, Jeremy Bertino, Persons 2 and 3, and Dominic Pezzola – entered into an agreement to accomplish an unlawful objective. The defendant’s own words, and those of their co-conspirators, reveal (1) their motive to stop the lawful transfer of power; (2) their agreement to use force to do so, including against law enforcement and elected officials; (3) their efforts to recruit individuals to carry out the criminal objective of the conspiracy; 1 and (4) their efforts to encourage other individuals present on January 6 to use force to achieve their objective.

… unlike Bertino (who formally pled guilty the day before this filing) and John “Blackbeard” Stewart (Person 3), who pled guilty in June, it’s unclear what AWW’s status is. That’s important because he was part of the plan to, “see thousands of normies burn that city to ash” on January 6.

The status of Ron Loehrke, another former Marine who played a key role in directing the attention of the rioters, is also unclear. A year ago, he was arrested on civil disorder and trespassing charges — but not obstruction or conspiracy — with co-defendant Jimmy Haffner (Haffner was also charged with a tactically important assault, at the East Door), but AUSA Kenerson has gotten three pre-indictment continuances of their case, through January 10, probably right in the middle of the Proud Boy Leader trial.

In other words, DOJ’s arguments about the way the Proud Boys deployed “normies” to carry out the bulk of the attack on the Capitol make a ton of sense given the evidence from the attack. This approach also helps to explain a lot of the oddities and apparent delays about the larger Proud Boy prosecution.

What’s unclear is whether DOJ will succeed in introducing it as evidence at trial.

Spy Versus Spy Amid the Proud Boys, Again

In the plea hearing for Nicholas Ochs and DeCarlo, Chief Judge Beryl Howell asked prosecutor Alexis Loeb whether the defendants had sat for the interview required by the standard plea deals. Loeb explained that, Ochs had but, for reasons pertaining to the ongoing investigation, FBI did not do such an interview with DeCarlo. I wondered, then, whether DOJ wanted to avoid discovery obligations to other Proud Boy defendants.

It’s something I had in mind as I read the various filings (Zach Rehl, Ethan Nordean, Enrique Tarrio, Joe Biggs, Nordean reply) that — NYT reported the other day — pertain to discovery about informants that the FBI had or developed among the Proud Boys. The gist of the complaints (as noted in the Biggs filing), which treat this as a Brady violation that merits dismissing the case, is that the FBI had records relating to Proud Boys who said they did not know of a plan to attack the Capitol in advance.

Biggs notes here on the open record that the Brady violations the parties continue to dispute — beginning with the dispute triggered by the Government’s late disclosure of a significant cache of Brady materials on August 13, 2021, or fifteen months ago — consistently go to a structural feature in all three of the Department of Justice’s superseding indictments in 21-cr-175. That feature and overarching issue is whether a Proud Boy conspiracy plan to obstruct the Biden-Harris vote certification or to commit sedition ever existed or could have existed. The Brady materials and discussions most at play now and since mid-2021 point up the increasing doubtfulness and high unlikelihood of the existence of a conspiracy. That is troublesome, and glaring. It continues to be the ‘elephant in the room’ of 21-cr-175.

It’s hard to know how seriously to take this. Some of these defense attorneys have been crying wolf from the start, claiming something turned over in timely fashion is exculpatory when it in fact shows really damning information.

In the August instance cited by Biggs, which NYT also wrote about, the informant was low-level and claimed to have shown up to insurrection late. Except Statements of Offense from members of the Kansas City suggest that the informant falsely told the FBI that violence had not come up in a meeting the night before the attack.

In the evening on January 5, 2021, defendant attended a meeting with co-defendants William Chrestman, Kuehne, and Ashlock, and others during which group safety was discussed. At some point during the meeting, another individual said that he did not come to Washington, D.C., to just march around and asked, “do we have patriots here willing to take it by force?” Defendant was shocked by this and understood that the individual was referring to using force against the government. Co-defendant Kuehne responded to the question by saying that he had his guns with him and, in essence, that he was ready to go. The individual who posed the question said that they should “go in there and take over.” [my emphasis]

That said, the statements of offense making such claims — here from Enrique Colon — come from defendants receiving really sweet plea deals in hte process, in multiple cases avoiding weapons charges or enhancements as well.

In the case of the two Nicks, they definitely coordinated with each other and premeditated a plan to stop the vote certification. But they appear not to have been part of any larger plan (they even attended Trump’s rally, which most Proud Boys did not). In other words, one thing that may be going on is that Biggs and Nordean implemented a plan developed along with Tarrio and some senior Proud Boys who weren’t in DC (such as the cooperating Jeremy Bertino), but didn’t tell the greater number of Proud Boys what that plan is in advance, something that makes the testimony of others appear exculpatory only because the Proud Boy leaders had kept a close hold on their plans.

According to Nordean’s reply to DOJ’s entirely sealed 21-page response, the government believes it was justified in withholding the documents under Rule 16(a)(2), which only requires sharing the documents if the pertinent witnesses testify.

The government argues that the sensitive materials were exempt from its discovery obligations under Rule 16(a)(2). ECF No. 538, p. 11. That is false because (1) the records at issue were not made by a government agent or attorney for the government in connection with investigating or prosecuting “the case,” i.e., United States v. Nordean, 21-cr-175, and (2) it is not just “internal government documents” Nordean seeks but the underlying information merely reproduced in government documents.

Nordean seems to be playing games about the bounds of “this” investigation here, and if the documents genuinely are not exculpatory, that would probably be a reasonable response. It’s a matter of whether this is an investigation into just the Proud Boy leaders, all the Proud Boys, or everyone involved in attacking the Capitol.

Separately, these are the files that (in a recent hearing), the defense attorneys were complaining about the heightened security procedures to access the documents, as Nordean lays out in his original filing.

[T]he government has made the extraordinary argument that these exculpatory materials cannot be produced directly to defense counsel. It has argued, successfully, that counsel must comply with the following procedure in order to access Brady information in this case:

(1) counsel must travel to an FBI office to review the materials in person;

(2) counsel may not receive copies of the materials but must take handwritten notes;

(3) counsel must then move the Court to produce the materials to the defendants, based on summary descriptions of the materials in their handwritten notes; and

(4) counsel must then file additional motions to secure this evidence for trial.

The complaint would be more convincing if the details of the earlier informant had not been published by the NYT, making it easy for investigators (and presumably all the other Proud Boys) to identify the informant. In the Oath Keeper case, too, the government is trying to hunt down which attorney(s), if any, sourced a NYT story about an Oath Keeper informant. (h/t Kyle Cheney)

Meanwhile, all this question about who is informing on whom leads me to return to the question of what happened to

Whallon Wolkind in all this (he’s the one top Proud Boy leader not known to have been charged or flipped), not to mention why Dominic Pezzola, alone among the remaining defendants in this case, didn’t join the challenge to access the informant files.

The usual suspects are wailing about how long this investigation is taking. Meanwhile, cases like this reveal the complexity of trying to prosecute key defendants while processing through a thousand others.

The “We the People Plan” Is Evidence of Tarrio’s Motive, But Not His Plan

As part of a renewed motion for bond for her client Zach Rehl, Carmen Hernandez released a copy of the “We the People” plan referenced in the indictments that include Enrique Tarrio. The document is disturbing and in some way reflects the plan to occupy the Capitol achieved during the insurrection on January 6. And it is evidence reflecting Tarrio’s — though not necessarily Rehl’s — motive. But it is not Tarrio’s plan.

We the People Plan

The plan itself consists of nine pages. The last two — intended for public consumption as a recruiting device — issue a demand for a new election on January 20, pledge fondness for Rand Paul and Ron DeSantis, and include a map.

The other seven pages lay out the plan to occupy Congressional office buildings and CNN but not the Capitol itself (one of the points Hernandez makes in her bond motion). The goal was to occupy the buildings with as “many people as possible inside these buildings” and then “present[] our demands in unity.”

The plan envisioned spending January 1 through 5, as well as on January 6 itself, recruiting as many participants as possible, using the public flier. Then, in advance of the attack on January 6, the buildings would be scouted by people wearing suits to blend in. For each building, the plan aspired to recruit a “covert sleeper” who would use a ruse to get inside the building and let others in, with a backup if the first person is discovered. This plan to have someone from the inside open doors to let others in does resemble something that happened on the East side of the Capitol, as Joe Biggs, the Oath Keepers, and the mob led there by Alex Jones all assembled in time for someone to open that door from inside.

The plan advocated using COVID masking to obscure identities (something none of the Proud Boys did, though one of Rehl’s co-travelers, as well as a few others, did a superb job of hiding his face via other means). It also proposed ways to distract by occupying other locations (like hotels and WalMart) and to block select roads in DC. There were conflicting chants — the same people who would chant “No Trump, No America” were also going to demand, “Free and fair elections,” which Trump lost. The plan advocating “sit[ting] in” key Senators’ offices, but then didn’t really understand what to do next.

One area where the plan most closely matches the one ultimately implemented by the Proud Boys was in timing: The mob was supposed to meet at 1PM, then an assessment would be made at 1:22PM if “enough people are around?,” then at 1:30, “Wait for sign from lead, storm the building.” Compare that timeline to this one put together by the Sedition Hunters. Both, importantly, were tied to the vote certification, not Trump’s speech.

The plan appears to have been developed by one or another of the “patriot” groups, which were separate from but with which the Proud Boys had some ties (and, at least in the case of some “Patriots” from Texas, fundraising ties). DOJ has only charged individual pairs of such rioters with conspiracy, even though there was a larger network passing such plans back and forth.

But this was their plan, not the Proud Boys’ plan.

Zach Rehl’s disproportionate charging

And that’s one of the points that Hernandez made in the bond motion. Rehl — and the other charged defendants — had no awareness of the document (though that would not include Jeremy Bertino, who is not currently a charged defendant).

The document was never shared or otherwise discussed with Mr. Rehl. 1776 Returns was sent to Mr. Tarrio by a female acquaintance. Mr. Rehl does not know the woman who sent the document and has not had any conversations with her. The government has represented that Tarrio did not forward the document to Mr. Rehl or the other defendants. And that Tarrio did not discuss the document or its contents with Mr. Rehl and the other defendants.

As I’ll show below, in the government’s theory of the conspiracy, in which Tarrio was a hierarchical head of the militia, that may not matter. The government has accused Rehl of following Tarrio’s plan, not this one.

Hernandez makes another point I find much more persuasive, though. Rehl is included in a sedition conspiracy with Tarrio, the hierarchical leader, Joe Biggs and Ethan Nordean, the onsite leaders who discussed an orally agreed plan starting on January 5, and Dominic Pezzola, whose actions were absolutely crucial from a tactical standpoint. Compared to them, he did play a smaller role in the conspiracy. As conspiracies work legally, that doesn’t necessarily help him much at trial, but this is a bond motion, and it might.

Hernandez cites one of Rehl’s co-travelers, who include Isaiah Giddings, Brian Healion, and Freedom Vy, stating that Rehl wasn’t really in charge and they just entered the Capitol to take a peak.

After the initial breach, [defendant] was with Zach [and two others]. [They] wanted to “go in and take a peek” and that they made the decision to enter the Capitol Building as a group. [Defendant] was curious as to what was going on inside the CapitolBuilding. . . . They left the building as a group.”

It’s true that these three men have, thus far, just been charged with a misdemeanor. But after Hernandez filed this filing yesterday, the prosecutor in their case, Alexis Loeb, filed for a continuance so prosecutors could continue to discuss a pre-charging resolution with these defendants.

The parties therefore request a 69-day continuance to allow defense counsel to continue their review of the discovery in this case. The requested continuance will also allow the government to continue to make progress providing additional discovery and continue discussions potential pre-charging resolution of this matter.

Hernandez also cites Jeff Finley’s treatment, who was with Rehl for part of the day (Hernandez refers to Finley having a cooperation agreement, which may confirm something that was fairly clear from his treatment).

By his own admission, on January 6, Finley marched with the Proud Boys from the start and participated and posted on the Boots on the Ground telegram chat. Id. (ECF 38) at ¶ 8. Finley watched as the barricades were torn down; after the crowd overran law enforcement, he followed the crowd onto the west terrace of the Capitol; and also invited other members of his chapter to join him at the Capitol. During these events, Finley 8 posed for a photograph with Mr. Rehl and three other Philadelphia Proud Boys “on the Upper West Terrace of the U.S. Capitol during the breach.” 9

After entering the Capitol and observing barricades torn down and the crowd overrunning law enforcement, Finley posted a video message, which among other things celebrated the events of the day and congratulated Mr. Rehl (“Yo, [Zach Rehl], proud of your (sic) fucking boy”). Finley (ECF 38) at ¶ 23. Finley deleted social media posts and photographs of himself and other Proud Boys at the Capitol and directed members of his chapter to do the same. Id. Despite almost identical 10 conduct by Finley and notwithstanding the allegations that Finley obstructed justice by deleting and directing members of his chapter to delete posts, the government did not consider Finley a risk of danger and did not seek his detention pretrial.

10 “Following the events at the Capitol on January 6, 2021, Finley took measures to obstruct the government’s investigation into criminal conduct at the Capitol. Among other things, Finley deleted his social media accounts and deleted photos and videos of himself and other Proud Boys at the Capitol. Finley also directed members of his chapter to delete their photographs and advised the presidents of other Proud Boys chapters of his actions, writing in an encrypted message, “Deleted all photos I may have had, advised my boys to as well. No talks about dc on telegram whatsoever and gathering #s as we speak.” Finley (ECF 38) at ¶ 24

According to Hernandez, the single thing that distinguishes Rehl from Finley is that Rehl was a member of the Ministry of Self Defense that Tarrio created in December 2020 as a leadership structure for what came next. She argues, in defiance of years of Proud Boy modus operandi, that the group was formed to avoid violence (rather than to better to incite it from others). And several things she cites actually hurt her argument. She cites Tarrio’s demand for a top-down structure, for example.

Now that goes with the whole thing. I don’t want this – this isn’t a foke (phonetic) thing. This isn’t a fuckin’, a thing where it’s going to be a fuckin’ super militant fuckin’ thing, but we do need to organize better and in order to do that, we need to have a top down structure, right.

She makes much of Tarrio’s demand that the Proud Boys will not, henceforth, be the ones to cross police barricades.

MR. TARRIO: Yeah, I mean every situation calls for something different, you know. Like we’re – I think on the verbalsense and the media sense, me and Biggs has got in on lock, where we know exactly what we’re going to say that will piss off the media. And you can translate that to on the grounds. Now I’m not saying, now I’m not saying to go ahead and fuckin’ talk shit. Go ahead and talk shit, as long as it, you know, keep it fuckin’ professional. But we’re never going to be the ones to cross the police barrier or cross something in order to get to somebody. We’re always going to be the ones standing back, right, and we’re always going to be the ones to fuckin’ defend. [Hernandez’ emphasis]

The Proud Boys weren’t the ones who crossed the barricade first on January 6. Instead, Joe Biggs made some comments to Ryan Samsel, and Samsel pushed over the barricades, giving Officer Caroline Edwards a lasting brain injury in the process and setting off hundreds of people behind him.

And Hernandez points to Bertino’s warnings (whom she names in a piece that also describes that Person-1 is the guy who, like Bertino, got stabbed at an earlier Proud Boy fight) about being stabbed to excuse the body armor the Proud Boys wore on a day when they targeted the Capitol at a time when few if any Antifa were present.

There’s a long redacted passage that, she explains, “refute the allegation that … MOSD planned a violent attack on the Capitol.”

Matters considered by the Court under seal also refute the allegation that the Proud Boys and the MOSD planned a violent attack on the Capitol.

This seems to be a reference to one of, if not the primary extended sealed dispute in this docket before Judge Kelly. Given Hernandez’ description of it, it may be the testimony of an FBI informant who repeatedly denied any such plans. Except that informant went to insurrection with the Kansas City cell of Proud Boys, and two of them — Louis Colon and Ryan Ashcroft — have since pled guilty to statements of offense that seem to directly counter the claims of their co-traveler.

Finally, Hernandez presents what is solid evidence that Rehl was not part of the planning discussions that did go on between Tarrio, Biggs, and Nordean, but which is not evidence that there was no plan.

That was the only plan communicated to the MOSD, to Boots-on-the-Ground and to Mr. Rehl. See also TSI at ¶¶ 63-65; Donohoe Plea (ECF 336 at ¶¶ 22-24). Note also that Mr. Rehl’s understanding of the plan was, as discussed in the 12/30 MOSD meeting, to break off into smaller teams. Mr. Rehl was not with Biggs and Nordean on the evening of January 5 and Tarrio was not in DC. Mr. Rehl did not speak with Tarrio by phone on January 5 or January 6. Compare TSI at 22 ¶¶ 63, 105. Thus, any communications between Mr. Rehl and Biggs, Nordean, or Tarrio on January 5, would have been on telegram. No message exists where they discuss a plan to attack the Capitol.

There was a meeting on January 5 involving Biggs and Nordean, after which Biggs explained that he had a plan that had been discussed with Tarrio. Rehl was not in that loop (and indeed had only just made it to DC). But there are repeated references to this plan.

I lay all this out for two reasons. First, probably because of some difficulties with the prosecution (including the number of Proud Boy informants, including Joe Biggs, that the FBI took to be credible and so got lied to), DOJ’s prosecutorial decisions don’t make transparent sense in the way they do with the Oath Keeper conspiracy, which has been a relentless march towards more senior plotters. But also because, at least according to the government’s theory of how this worked (which does appear in both Matthew Greene and Charles Donohoe’s statements of offense), this attack was implemented using a top-down structure led by a guy, Tarrio, giving oral instructions from offsite. And those oral instructions may have been influenced by the plans of others that Tarrio was known to be in contact with in December, only one of which is this “We the People” plan.

Tarrio’s motive and plan

And that’s why, I would argue, the “We the People” document is in the existing conspiracy indictments. It led Tarrio to express his own motive twice. The sedition indictment has two references to it. First, in regards to discussions Tarrio had with the woman who shared it with him in December, well before the Proud Boy plan was finalized.

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

To her (using a phone Tarrio believed would not be exploited, and which did take a year to be exploited), he agreed that “the revolution is [sic] important than anything,” Tarrio seemingly agreed that “every waking moment” he spent was dedicated to that revolution.

Then, after an attack led by the Proud Boys (who had succeeded in recruiting others to break through the barricades) Tarrio made a reference that suggests Bertino — referred to here as Person-1 — does know about this plan.

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

In response to Bertino’s boast of 1776, Tarrio responded with the code for occupying buildings, Winter Palace. That is, this seems to be his tacit reference to the plan to occupy buildings.

But this exchange goes well beyond that of the We the People plan, which imagined issuing a set of demands but didn’t know what would happen next. This occupation, as reflected by Bertino’s awareness that “They HAVE to certify today! Or it’s invalid,” reflects some knowledge of the entire legal theory espoused by people like John Eastman: that to succeed in winning their demands, occupiers needed to ensure that the certification did not happen as scheduled.

Rehl has a point (though prosecutors, being prosecutors, would note that it’s the same point that Donohoe, who only came to DC on January 6 to fill in for Tarrio after the Proud Boy leader predictably got arrested and so retreated to Baltimore for the actual violence) came to: that Tarrio set up this conspiracy to insulate himself, leaving people like Donohoe and Rehl to take the fall for his plan.

The Proud Boy Leaders’ Trial Takes Shape

I’m buried in other things, but I wanted to write up a few developments in the Proud Boys case.

Yesterday, along with a response to Ethan Nordean’s sustained complaints about Brady material and more general complaints from defense counsel about the difficulty of discovery in the Proud Boy Leaders’ case, the government released a discovery index for its case against Enrique Tarrio and his co-defendants. It provides a snapshot of the government’s case against the Proud Boys.

Much of the discovery in this case consists of things we’ve seen in other cases: Lots of open source, surveillance, and body worn camera videos, the contents of phones and other devices (the term “scoped” means that FBI has provided to the defendants and others only the material deemed to be responsive to the warrant used to obtain the devices), and social media postings. The index also identifies items obtained in searches of defendants’ residences. There are calls from jail included for Ethan Nordean, Zach Rehl, and Matthew Greene. There is surveillance video from various hotel properties, including AirBNB.

There are a variety of interviews noted, including custodial interviews conducted after an arrest, as well as interviews not so marked, suggesting potential cooperation from people like Jeffrey and Jeremy Grace; the father and son pair were prosecuted separately, with son Jeremy pleading to a misdemeanor on April 8 and father Jeffrey due to plead guilty on June 17. Jeff Finley, who pled guilty to a misdemeanor on April 6 even proffered, implying more formal cooperation not identified in his plea paperwork. An interview with Greene, dated October 28, 2021, may reflect the beginning of his cooperation (he was the first Proud Boy to enter into an overt cooperation agreement). As of right now, there’s just one interview from Louis Colon and none from Charles Donohoe, the other two Proud Boys who entered into cooperation agreements. Perhaps most interesting, there is a “non-custodial surreptitious interview intercepted on 3/8/22” of Enrique Tarrio; one possible explanation for that is that the FBI wired someone up before talking to Tarrio. There’s also a surreptitious interview with someone whose name is redacted.

There are a few redaction fails, one for Eddie Block and another for Trevor McDonald, neither of whom have been arrested.

DOJ released this file with all the case numbers (in the first column of the table) unredacted. This list of the abbreviations for FBI Field Offices provides some indication about whether redacted subjects are located in the Philadelphia area (as Aaron Whallon-Wolkind is), the Pacific Northwest, somewhere between Baltimore and the Carolinas, or Saint Louis area.

I guess it’s rather late in this post to offer this warning, but this document will suck you in.

The government released this snapshot of their case even amid several other developments.

First, Joshua Pruitt, who is a long-term Proud Boy but who doesn’t show up in this index, will plead guilty at 1PM.

In a hearing on discovery yesterday, Rehl attorney Carmen Hernandez asked whether the government would comply with their earlier assurances that they would obtain any superseding indictment (potentially adding co-defendants) by June 1, as they promised earlier. The government (I believe this was AUSA Jason McCullough) declined to answer. From that, I take there may be an imminent superseding indictment, perhaps even one that remains sealed until co-defendants are arrested.

We know who won’t be in any superseding indictment though: yesterday the government released a superseding indictment against Christopher Worrell and Dan Scott, joining the two cases and adding obstruction charges to the former. Both men figure prominently in this index.

The Tactics of the Louis Enrique Colon Cooperation Agreement

As Capitol Police attempted to lower a barricade protecting the tunnels of the Capitol on January 6, Proud Boy Louis Enrique Colon reached out and prevented it from closing, then placed a chair to further obstruct the gate.

While inside the Capitol building, defendant observed co-defendants Chrestman, Felicia Konold, and Cory Konold at various points inside of the building, including in a downstairs area of the Capitol near where several retractable doors were being lowered by police officers in an attempt to stop rioters from proceeding further into a portion of the building. To prevent one of the doors from closing, defendant used his hands to stop the door and placed a chair in the door’s path, while co-defendant Kuehne and another individual placed a podium in the path of another door.

That’s the basis of the single charge to which Colon pled guilty as part of a cooperation agreement yesterday, 18 USC 231, Civil Disorder.

Defendant knowingly obstructed, impeded, and interfered with law enforcement officers while those officers were lawfully engaged in their official duties incident to a civil disorder that was occurring inside of the Capitol. Among other things, defendant prevented officers from closing a retractable door which was intended to prevent rioters from advancing further into a portion of the restricted Capitol building.

In my opinion, this is, by any measure, the most lenient overt plea deal a January 6 defendant has gotten (and a comment that one of the lawyers in the plea hearing yesterday made suggested that it had recently been sweetened). On top of this charge and trespassing, Colon was originally charged in a conspiracy with other members of the Kansas City Proud Boys, as well as individually with obstruction. With credit for cooperation, according to his plea deal, the former cop may avoid any prison time.

That’s all the more remarkable given that Colon’s statement of offense reveals that he went to the Capitol with a pocket knife and an axe handle.

Among other things, defendant purchased and modified an axe handle to be used as both a walking stick and an improvised weapon

[snip]

Defendant and the group ultimately made their way to the west side of the Capitol’s grounds, outside of the restricted, fenced-off perimeter which had barricades staffed by USCP officers. At the time, defendant was wearing a backpack, pocket knife, tactical vest, tactical gloves, boots, and a helmet adorned with orange tape.

While the knife may be too short to trigger enhancements, carrying an acknowledged weapon has been used to enhance the penalties of others, though it is also the kind of thing prosecutors have used to flip people.

In other words, either Colon’s cooperation is so valuable, or DOJ needed it so badly, that he got a really sweet plea deal even in spite of bringing an “improvised weapon.”

So I’d like to discuss what DOJ may be doing tactically.

First, some background. The Oath Keepers investigation has been marked by a relentless march of new cooperators, publicly unveiled: Jon Schaffer, Graydon Young, Mark Grods, Caleb Berry, Jason Dolan, Joshua James. Boom. Boom. Boom. Boom. By contrast, just two of the overt Proud Boy cooperators have the kind of plea deal that implicates the wider conspiracy, Matthew Greene and Charles Donohoe. For whatever reason — apparently thinner staffing, greater numbers of participants, difficulties created by Enrique Tarrio’s arrest and delayed phone exploitation, investigative equities, corrupt lenient treatment, or a more important role in the overall investigation — DOJ has been using different tactics to get cooperation from Proud Boys and other key far right personalities. As an example, Jeff Finley (like Brandon Straka and likely, soon, Baked Alaska) seems to have cooperated in advance to avoid a felony altogether. So did Jeremy Grace, though his statement of offense implicated his far more complicit father who, if he ever cooperated, might implicate far more important tactical players. Ricky Willden’s statement of offense barely hints at what he knew that day.

Particularly given a reference made to Colon “continu[ing]” his cooperation in the hearing yesterday, this feels more like the kind of deal Finley got, where someone works their way out of more serious charges (which in Colon’s case would be obstruction with a weapons enhancement) ahead of time. That kind of cooperation makes it less visible, but also may make testimony harder to impeach down the road.

With that in mind, I’d like to look at four aspects of his statement of offense.

First, as virtually all conspirators who flip do, Colon implicated his co-conspirators, describing how:

  • Ryan Ashlock, Christopher Kuehne, and another individual traveled with Colon from Kansas City
  • Kuehne brought two AR-15 or similar assault rifles on the trip
  • Kuehne, at defendant’s suggestion, purchased orange, fluorescent tape so the group would be able to identify each other in a crowd
  • William Chrestman, Kuehne, and Ashlock, and others met on January 5 to talk about safety
  • The Konold siblings joined their group on the way to the meet-up at the Washington Memorial
  • Colon saw Chrestman, Felicia Konold, and Cory Konold as police officers attempted to stop rioters from proceeding further into a portion of the building (though the statement of offense doesn’t describe their efforts to prevent it) [my emphasis]

That is, at one level Colon’s cooperation simply shores up the third major Proud Boy conspiracy, just like Donohoe, Greene, and Finley provided direct evidence against the Leader conspiracy.

But consider this big story from Alan Feuer from September. According to 302s that defendants have gotten, one of just two known actively-handled informants among the Proud Boys that day said he had no advance knowledge of plans to disrupt the vote certification.

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

[snip]

On Jan. 6, and for months after, the records show, the informant, who was affiliated with a Midwest chapter of the Proud Boys, denied that the group intended to use violence that day. In lengthy interviews, the records say, he also denied that the extremist organization planned in advance to storm the Capitol. The informant’s identity was not disclosed in the records.

[snip]

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

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

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

As Feuer noted at the time, if you ignore that this Proud Boys showed up late, this informant’s testimony significantly undermines claims of prosecutors.

There are multiple clues in Feuer’s article and elsewhere — most notably the reference to a young woman (likely to be Felicia Konold) — that this informant was affiliated with the Kansas City cell.

He said that when he arrived, throngs of people were already streaming past the first barrier outside the building, which, he later learned, was taken down by one of his Proud Boy acquaintances and a young woman with him. [my emphasis]

In other words, until such time as DOJ secures testimony to contradict that of their informant, these interviews remain a weak point in the case against the Proud Boys.

They may have gotten that testimony yesterday.

Now consider what this particular cell of the Proud Boys did — and why that may have led DOJ to be satisfied with just the less serious 231 charge against Colon.

DOJ has charged conspiracy tied to January 6 in a bunch of ways: most spectacularly with some Oath Keepers, seditious conspiracy, also with those Oath Keepers (and the alleged Brian Sicknick assailants), conspiracy to injure an officer, and for most people charged with a conspiracy, either the conspiracy charge tied to the obstruction statute (18 USC 1512k, which carries greater penalties), or conspiracy under 18 USC 371.

But for a few of the Proud Boy conspiracies, including this Kansas City cell, the 371 conspiracy had two objects: to obstruct the vote count, but also to obstruct the cops. That’s basically a conspiracy to commit 18 USC 231, the charge Colon pled guilty to.

And the particular act of obstruction that this cell engaged in — preventing the cops from closing the gates leading to tunnels via which rioters correctly believed members of Congress had fled — is one of the most important tactically. That is, this may show not just a desire to mess with the cops, but a plan to go after members of Congress.

This cell is important for the means by which the Proud Boys made things work on January 6. And Colon may be a key witness to the tactical implementation of plans that went into that day.

Finally, consider the description, from Colon’s statement of offense, of this meeting the night before.

In the evening on January 5, 2021, defendant attended a meeting with co-defendants William Chrestman, Kuehne, and Ashlock, and others during which group safety was discussed. At some point during the meeting, another individual said that he did not come to Washington, D.C., to just march around and asked, “do we have patriots here willing to take it by force?” Defendant was shocked by this and understood that the individual was referring to using force against the government. Co-defendant Kuehne responded to the question by saying that he had his guns with him and, in essence, that he was ready to go. The individual who posed the question said that they should “go in there and take over.” [my emphasis]

DOJ has been doing a lot of work unpacking the degree to which coordination happened at meetings on January 5 (I expect we’ll see it in more expected plea agreements going forward). These meetings were critically important for getting everyone on the same page, including a bunch of people who weren’t otherwise affiliated.

We have no idea what this meeting was — we’re still looking for details on a meeting that Joe Biggs and Ethan Nordean attended around 9PM the night before, though I doubt that’s what this is.

The description is important for several reasons. First, the focus on “group safety” seems to match the informant’s claim that, “On the eve of the attack … the group had no plans to engage in violence the next day except to defend itself from potential assaults from leftist activists.” Except if it’s that same meeting, then the informant would have also heard someone express a desire to take DC by force, in response to which Kuehne, who is a former Marine, said he was ready to go. At the very least, this description could correct the informant’s claims; it may prove them false.

But it also significantly advances the evidence that some of the Proud Boys, like some of the Oath Keepers, were thinking of using force against the government.

That’s the kind of evidence that has, with the Oath Keepers, helped persuade others to plead out and cooperate.

Update: Note that Robert Gieswein also wore orange tape to insurrection; he allegedly sprayed cops trying to close that barricade.