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The Government Screws Up Attempt to Distinguish between January 6 Insurrection and Anti-Kavanaugh Protests

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The government is obviously getting fed up with some of Ethan Nordean’s legal challenges. I can’t blame them for being impatient with Nordean’s claims that, so long as cops at one of four barricades he passed on his way to insurrection weren’t knocked down, it means he had no way of knowing he wasn’t welcome.

But they fucked up, badly, in what would otherwise be an important argument to make. In his reply brief to his motion to dismiss his entire indictment (here’s the government’s response), Nordean made an argument that right wingers love to make, that the Kavanaugh protests were just like the insurrection, yet those protestors weren’t charged with the same felony charges that January 6 insurrectionists are being charged with.

About two years before the January 6 events, in October 2018, Congress held confirmation hearings for now Justice Kavanaugh. Of course, confirmation hearings are not ceremonial functions like the Electoral College vote count but are rather inquiries held pursuant to Congress’s investigatory power. Subpoenas are issued, sworn testimony is given. See, e.g., United States v. Cisneros, 26 F. Supp. 2d 24, 38 (D.D.C. 1998). As on January 6, Vice President Mike Pence was present and presiding over the confirmation vote.4 Hundreds of protestors broke through Capitol Police barricades.5 They burst through Capitol doors and “stormed” the Senate chamber. N.Y.Times, Oct. 6, 2018. There, they disrupted and delayed the Senate proceedings by screaming and lunging toward the Vice President and other people. As a report described the day, Saturday’s vote reflected that fury, with the Capitol Police dragging screaming demonstrators out of the gallery as Vice President Mike Pence, presiding in his role as president of the Senate, calmly tried to restore order. “This is a stain on American history!” one woman cried, as the vote wrapped up. “Do you understand that?” N.Y. Times, Oct. 6, 2018. Here are some of the images of protestors who broke through Capitol Police barricades and entered Congress that day, about 26 months before January 6:

Roll Call, Oct. 6, 2018 (VP Pence presiding in Capitol Building)

NBC News, Oct. 6, 2018 (VP Pence presiding in Capitol Building)

Though they intentionally delayed the congressional proceedings, these protestors, numbering in the hundreds, were not charged with “obstruction of Congress” under § 1512(c)(2). Certainly, if the lack of case law supporting the government’s interpretation of “official proceeding,” the absence of any legislative history pointing towards that interpretation, and the DOJ’s own internal inconsistent position do nothing to provide “fair notice” to an “ordinary person” that such political protests constitute “obstruction of official proceedings,” the fact that hundreds of protestors were charged with no offense at all for conduct for which the indictment here charges Nordean does not provide that notice either. Moreover, the naked charging disparity between the episodes—legally similar, according to the government here—also implicates the vagueness doctrine’s concern for arbitrary and discriminatory law enforcement enabled by vague, shifting standards that allow “prosecutors and courts to make it up,” particularly in the context of the rights of free speech, assembly and petitioning of the government. Dimaya, 138 S. Ct. at 1212 (Gorsuch, J., concurring); United States v. Davis, 139 S. Ct. 2319 (2019) (Gorsuch, J.) (residual clause of § 924(c) unconstitutionally vague); Johnson v. United States, 576 U.S. 591 (2015) (residual clause of Armed Career Criminal Act unconstitutionally vague).

4 Kavanaugh is sworn in after close confirmation vote in Senate, N.Y. Times, Oct. 6, 2018, available at: https://www.nytimes.com/2018/10/06/us/politics/brett-kavanaugh-supremecourt.html.

5 See, e.g., Kavanaugh protestors ignore Capitol barricades ahead of Saturday vote, Roll Call, Oct. 6, 2018, available at: https://www.rollcall.com/2018/10/06/kavanaugh-protesters-ignore[-]capitol-barricades-ahead-of-saturday-vote/.

[my italics]

Nordean is conflating two different things in an attempt to draw this parallel. There were the protestors who were in the actual hearing room, who briefly yelled and then were removed. And then there were protestors who broke through a barricade at the Capitol (there were also protestors who broke through a police line at the Supreme Court and knocked on the door). The “hundreds” of protestors Nodean mentions were watching from below and then were on the steps.

Protesters broke through Capitol Police barricades and rushed up the steps to the Capitol Rotunda Saturday afternoon amid large demonstrations ahead of a Senate vote on Supreme Court nominee Brett Kavanaugh.

The metal barricades were erected Thursday to keep demonstrators on specific areas of the Capitol grounds.

[snip]

As each batch of arrestees walked down the stairs, the cheers rose from the hundreds assembled below on the east front stretching out to the street.

In an effort to conflate the two, Nordean invented things that weren’t in the NYT story he claimed to rely on, both that the people inside the hearing had “stormed” the Senate chamber and that those protestors were “lunging” at the Vice President.

As a chorus of women in the Senate’s public galleries repeatedly interrupted the proceedings with cries of “Shame!,” somber-looking senators voted 50 to 48 — almost entirely along party lines — to elevate Judge Kavanaugh. He was promptly sworn in by both Chief Justice John G. Roberts Jr. and the retired Justice Anthony M. Kennedy — the court’s longtime swing vote, whom he will replace — in a private ceremony.

[snip]

Republicans are now painting Democrats and their activist allies as angry mobs. Senator John Cornyn, Republican of Texas, delivered a speech on Saturday assailing what he called “mob rule,” while the majority leader, Senator Mitch McConnell of Kentucky, told reporters that “the virtual mob that has assaulted all of us in this process has turned our base on fire.”

The bitter nomination fight, coming in the midst of the #MeToo movement, also unfolded at the volatile intersection of gender and politics. It energized survivors of sexual assault, hundreds of whom have descended on Capitol Hill to confront Republican senators in recent weeks.

[snip]

Saturday’s vote reflected that fury, with the Capitol Police dragging screaming demonstrators out of the gallery as Vice President Mike Pence, presiding in his role as president of the Senate, calmly tried to restore order. “This is a stain on American history!” one woman cried, as the vote wrapped up. “Do you understand that?”

The government makes some of these points in their surreply, notably pointing out that the protestors who actually interrupted the hearings were all legally present in the public gallery, and had all gone through security to get there.

Defendant’s attempts to manufacture a parallel between the criminal activity during confirmation hearings for Justice Kavanaugh and the events of January 6 should remain on the Internet—they do not fare well when included in a legal brief. Among the distortions of fact and law in his brief, Defendant claims that on October 6, 2018, protestors “burst through Capitol doors and ‘stormed’ the Senate chamber” during confirmation hearings for Justice Kavanaugh. That is not accurate.2 The confirmation hearings were public, and the gallery of the Senate Chamber was open to the public on the day of the vote to confirm Justice Kavanaugh. See C-SPAN, Final Confirmation Vote for Judge Brett Kavanaugh, Oct. 6, 2018 available at https://www.cspan.org/video/?452583-11/final-confirmation-vote-judge-brett-kavanaugh. Indeed, Vice President Pence twice reminded the “guests” in the Gallery that expressions of approval or disapproval were not permitted. Id. Protestors who demonstrated inside the Senate Chamber on October 6 did so after lawfully accessing the building and being subjected to security screening. 3 See, e.g., Public seating at Kavanaugh hearing cut in half, then restored again, PBS News Hour, Sept. 5, 2018, available at https://www.pbs.org/newshour/politics/public-seating-at-kavanaugh[-]hearing-cut-in-half. No serious parallel can be drawn between the two events.4

[snip]

3 Those entering the earlier confirmation hearings reportedly had to pass through multiple identification checks. Members of the public were required to “first wait in line outside the building to go through an initial screening” before being “escorted in small groups to a holding area outside the committee room itself.”

The government twice mocked Nordean for using the wrong pictures in his brief.

While Defendant can claim to have “images of protestors who broke through Capitol Police barricades and entered Congress” on October 6, 2018 (Id. at *14), the Court will immediately recognize that one of the images depicts protestors on the steps of the Supreme Court.

[snip]

2 In his Reply, Defendant included two pictures of protestors who had “stormed” the Capitol. The pictures alone underscore the frivolous nature of Defendant’s argument. But there is another problem—the protestors in the second photograph were on the steps of the Supreme Court.

It would be a great gotcha if it were true.

It’s not. While there were protestors that day at the Supreme Court, and while the story Nordean mistitles and doesn’t include a URL for does describe protestors storming past a police line on the Supreme Court stairs, the picture Nordean used was, indeed, from the Capitol steps.

Here’s what the view of those same steps looked like after mobsters occupied them on January 6 (from the NYT documentary on it); by this point several windows were already broken:

I can think of no instance where rioters who only occupied those East steps were even arrested (there were several people who occupied the more violent West Terrace who were arrested, most commonly in association with a conspiracy or assault charge), suggesting the equivalent January 6 “protestors” were in fact treated more leniently than the protestors — some of whom were arrested — from the Kavanaugh protests. For example, Proud Boy Ricky Willden may never have entered the building from the East stairs, but he is accused of spraying cops with some toxin.

Here’s what the protest at the Supreme Court looked like (again, from the same NBC article), with the caption that makes this incidence of “storming” seem quaint by comparison:

It’s an unbelievably embarrassing error to make — to accuse Nordean of an error when in fact the government was in error, especially while suggesting that Judge Kelly would immediately recognize the Supreme Court. All the more so given that Joe Biggs’ re-entry through the East door is charged in this indictment. Getting this wrong is a testament that the government didn’t spend as much thought responding to Nordean’s comparison as they need to, not just to rebut his argument, but to reflect seriously on what the line between the civil disobedience of the Kavanaugh hearings and the terrorist attack of January 6 is such that the former resulted in over a hundred misdemeanor arrests onsite whereas the latter resulted in delayed arrests and felony charges.

There are clear differences, differences that go beyond the fact that the entire Capitol was shut down on January 6 whereas (as the government notes) protestors were legally present when they interrupted the Kavanaugh hearing. There’s no evidence any of the Kavanaugh protestors were armed, whether with baseball bats or bear spray or guns. There were no reports that protestors assaulted police, much less continued to march past them after causing injuries that required hospitalization. Contrary to Nordean’s invention, protestors did not lunge at Pence, and certainly didn’t threaten to assassinate him. In general, protestors were more compliant upon arrest than January 6 rioters (which is one of many reasons why the police succeeded in arresting them, whereas several charged January 6 defendants escaped or were forced to be released by other rioters). While protestors definitely criticized Kavanaugh’s alleged actions (and his own screaming), I’m not aware of any who threatened to injure much less assassinate him onsite. The threats against Senators — most notably, Susan Collins — were electoral, not physical.

This surreply brief provided the government an opportunity to make that case, make it soberly, and make it in such a way to respond to legitimate questions that right wingers who aren’t aware of these real differences might raise. The surreply also provided the government an opportunity to explain why Neil Gorsuch won’t find this to be a charging disparity when he eventually reviews this challenge — because he almost certainly will, which is obviously why Nordean put that nod to Gorsuch right there in his brief. How do you screw something like that up???

But the government didn’t do that. Instead, in rebutting Nordean, the government tried to dick-wag. And failed, badly.

I’m tired of some of Ethan Nordean’s bullshit arguments myself. But the legal question about what makes the insurrection bad enough to treat its masterminds as terrorists is a very serious one, one that needs to be treated with more care than the government did here.

Update: I’ve updated the comparison image for the East stairs and added the observation that few if any January 6 protestors who only climbed the East stairs were charged.

Update: emptywheel gets results.

The United States files this notice of correction along with the refiling of its Surreply to Defendant Nordean’s Motion to Dismiss. In its original filing, the United States asserted that Defendant Nordean had misidentified a photograph of the protests on October 6, 2018. Such assertion was incorrect and has been removed from page 1 and footnote 2 of the corrected filing.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Proud Boy UCC-1’s Work Ethic Saved Him from a Felony Charge

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The other day the government released Powerpoint presentations (Zach Rehl, Charles Donohoe) from detention hearings for the two Proud Boys, as well as the Telegram chats one or the other side used as part of those detention disputes. (The times on the chats are UTC-8, probably because they came from Ethan Nordean’s phone after it was seized in Washington; add three hours to get the time in DC.)

January 4 5:17 to 5:42PM

January 4 5:50 to 7:06PM

January 5 8:58PM to January 6 12:03AM

January 6 1:00 to 4:07PM

January 30 to February 1, Nordean and Donohoe

In general, the texts show how, in the wake of Enrique Tarrio’s arrest on January 4, Donohoe took the lead in attempting to set up two new Telegram chats — New MOSD, with just a few leaders, and Boots on the Ground, with around 60 Proud Boys (not all of whom were present, it seems) — so the Feds wouldn’t have access to their organizational efforts via Tarrio’s phone, which they correctly assumed the government had seized (though it’s not clear when the phone was exploited). The Proud Boys struggled to figure out what to do with Tarrio, with Donohoe seemingly warning not to add Tarrio back into a chat until they had confirmed he was free and using an uncompromised phone, to prevent the FBI from logging on under Tarrio’s credentials.

They seem to know that Tarrio also spoke with someone outside their circle about his flag-burning, and considered warning that person. They interspersed that conversation with discussions about how to get more Proud Boys to the riot, perhaps picking them up in Philadelphia or Greensboro. For several hours, Donohoe kept adding names, begging for help, explaining what he was doing as he went.

Because of the time crunch, Donohoe added everyone as Admins (I’m not familiar enough with Telegram to understand potential repercussions of that, with regards to FBI’s ability to get more of these chats as they arrested more Proud Boys).

On January 5, their communication plans were still in flux, with one apparent cell leader — who, on account of the redaction, appears not to have been arrested yet — communicating with his cell separately.

Nordean was supposed to be in charge, but he was AWOL for several hours leading up to 9PM (rather interesting hours on January 5 to be unreachable).

There are texts about adding someone to the MOSD leadership channel that might be consistent with Tarrio rejoining the chats after his release (the government redacted his name in some places but not all of them).

Whether or not they added Tarrio to the thread, Biggs — who was with the AWOL Nordean — seems to have been in contact with Tarrio.

Great swaths of the texts from January 6 — almost 10 full pages — are redacted. What’s left are seemingly one after another Proud Boy (not all present) claiming to be storming the Capitol right at 1:02 PM.

At 3:38 PM Donohoe says the Proud Boys will regroup, only to express shock that Trump[‘s Administration] would call out the National Guard against rioters.

The exhibits with just texts are actually far more redacted than the Donohoe Powerpoint — the latter of which includes damning details like Donohoe acknowledging, in advance, that they could face gang charges.

In addition, in the Donohoe Powerpoint, the government lays out a discussion from after the insurrection where someone — perhaps Biggs — expresses some kind of regret, something to make Donohoe push back.

REHL: Ah shit forgot you [Biggs] had to roll, was hoping to have some celebratory beers with yall after this epic fuckin day, I’ll drink one for ya

BIGGS: We will one day. This day lives in infamy or [sic] the ages

DONOHOE: Yeah I feel like a complete warrior. . . .I stood on that front line the entire time and pushed it twice . . . Thank God we were not wearing colors . . . We should never wear colors ever again for any event . . . Only for meetups . . .

[Approximately 12 Minute Gap with No Messages in Message Thread]

DONOHOE: Stop right there . . . All of what you said doesn’t matter . . . We stormed the capitol unarmed . . . And took it over unarmed . . . The people are fucking done . . . Wait when joe biden tells us we are all criminls [sic] [emphasis original]

The gap is interesting, however, because every Telegram text involving Nordean from the key days amounted to a deleted attachment to a text.

We know Nordean would text, though, because he did later in January, when he and Donohoe were discussing Nordean’s plan for a temporary move to North Carolina.

Note, if texts involving Nordean were deleted, they may not be deleted in phones seized from other participants.

Which leads me an obscure detail revealed in that Powerpoint that nevertheless explains something that has been out there for some time: the logic behind an unindicted Proud Boy co-conspirator’s status.

By March 1, prosecutors had details about all these Telegram texts. Yet in a detention hearing for Nordean on March 3, they backed off providing proof, leading to claims that prosecutors had gotten over their skis on Nordean’s prosecution. But the government rolled out the texts themselves — as well as the existence of an unindicted co-conspirator, referred to as UCC-1, in the Proud Boy Leadership conspiracy indictment on March 15. In a sealed filing before unsealing the indictment, the government had asked Judge Tim Kelly to hide all that until Rehl and Donohoe could be arrested. At the time, it seemed that UCC-1 was the likely source for the Telegram texts.

It turns out that was wrong, however. At a hearing on May 4, Nordean’s attorney Nick Smith revealed that the government had obtained all the texts from Nordean’s phone, a password for which his wife shared with the FBI (which explains the time zone and may explain why Nordean’s content was deleted when his that of co-conspirators was not).

Texts from early on January 6, not replicated (or left redacted) in the full exhibits explain that UCC-1 was not at the insurrection because he had just gotten a new job that he didn’t want to fuck up, yet.

DONOHOE: Are you here? …

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

DONOHOE: Well fuck man

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

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

Person-2: Would be epic

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

That provides a ready explanation for why DOJ might seek to get UCC-1 to cooperate: he wasn’t present, and any role had had in decision-making leading up to the insurrection pales in comparison to Tarrio’s role. Plus, maybe he was telling the truth about trying to keep that new job. As soon as investigators saw why this guy didn’t show, they would understand a motive he might have to cooperate.

If that’s right, that not only would provide a direct witness to these leadership chats, but it might provide an even fuller set of Telegram chats than what the charged co-conspirators know about.

Tucker Carlson and Glenn Greenwald Are Outraged that Bill Barr Set Up Antifa!!!! [Just Kidding]

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You’ve no doubt seen the conspiracy theory championed by Tucker Carlson and Glenn Greenwald claiming that the unnamed Oath Keeper associates described in those indictments are actually FBI informants.


As happened with earlier propaganda campaigns (notably the one downplaying Brian Sicknick’s death), the conspiracy theory started with Revolver News, got magnified by Tucker Carlson, and got normalized by Glenn Greenwald (the latter of whose central role largely escaped attention because commentators don’t identify him, yet, as a right wing propagandist).In his first appearance, Carlson grotesquely accused Sharon Caldwell, who was described in later Oath Keeper documents as Person Two but was identified clearly in earlier documents by her first name and as Thomas Caldwell’s spouse, of being an informant who framed her husband.

Person Two and Person Three were organizers of the riot. The government knows who they are. But the government has not charged them. Why is that? You know why. They were almost certainly working for the FBI. So FBI operatives were organizing the attack on the Capitol on January 6, according to government documents. And those two are not alone! In all Revolver News reported there were, quote, “upwards of 20 unindicted co-conspirators in the Oath Keepers indictments, all playing various roles in the conspiracy, who have not been charged for virtually the exact same activities — and in some cases much, much more severe activities — as those named alongside them in indictments.”

Huh????

So it turns out that this white supremacist insurrection was, again, by the government’s own admission in these documents organized at least in part, by government agents.

This little campaign has led compromised members of Congress to embrace this excuse for the insurrection they previously have claimed was not an insurrection at all.

Thomas Caldwell’s wife, Sharon, is Person Two

To show that “Person Two,” whom Tucker Carlson alleges for framing Thomas Caldwell, is actually his wife, Sharon, you can compare this filing, where her name is not redacted, with this one, where “Person Two” has substituted for her name.

1. Sharon Caldwell is Thomas’ wife:

2. “Sharon and I are setting up shop there” (at the Comfort Inn Ballston) and then “Sharon and I are going our way.”

3. “Sharon was right with me!”

Later filings over release conditions confirm the selfies posted to Facebook were of Thomas’ wife, describe Thomas agreeing to be accompanied by his wife, Sharon, to Sunday Mass starting on Easter, expressing concern that his wife has to do all the chores on their 30-acre farm which has led to the loss of farm income, and describing that he rarely travels anywhere without his wife, Sharon Caldwell, and she’s willing to go with him every time he does leave their property.

Glenn and Tucker must be outraged that Billy Barr set up Antifa

Parts of this campaign are pathetic, even for the men involved, and may reflect a desperate attempt to repackage their own past claims.

For example, after parroting a bunch of obviously self-serving PR from Parler in the days after the attack (such as that the insurrectionists organized on Facebook, not Parler), Glenn now shows that Parler was actually sharing threats of violence with the FBI in advance, without noting that that undermines several things he said in the past, such as that the insurrectionists didn’t plan on Parler. This must be dizzying and embarrassing for Glenn.

And because Glenn has to package this — like he did his never-ending obsession with Hunter Biden’s laptop — as a failure of Democrats and liberal media, he remarkably claims that the left — which has so relentlessly asked why the FBI was caught unawares that Glenn even screen caps an example of Ryan Goodman linking to Carolyn Maloney doing so — is resistant to questioning the FBI’s role in the riot.

What accounts for this furious liberal #Resistance to questioning the FBI’s role in the January 6 riot and asking whether there are vital facts that are being concealed?

Maybe Glenn has a harder time getting CSPAN in Brazil than I do in Ireland, because when I’ve watched the multiple hearings Democratic Chairs of various committees (including Maloney) have had with FBI Director Chris Wray or now-National Security Branch EAD Jill Sanborn, they question the FBI about it over and over and over. Glenn literally made up this hash-tagged resistance out of thin air because he needs it to be true, when in fact the opposite is true.

But it’s important to look at what this propaganda campaign obscures.

Probably, this campaign got started because a number of people implicated in the investigation, now realizing that it won’t go away, are trying to absolve themselves of any responsibility. It has already happened with those charged for crimes committed on January 6. Dominic Pezzola suggested that a key witness against him was actually more involved in the riot than he was, only to learn he guessed wrong and that the government was going to invoke a terrorism enhancement with him. Similarly, top Proud Boys were hinting at challenges to the UCC-1 described in their indictment, before they grew conspicuously silent about it, as if they learned something that undercut such claims. [see update below]

The other reason people are talking about informants is that (FBI’s failure to respond notwithstanding) it’s not that far-fetched. Importantly, multiple Proud Boys have claimed to be informants, though Glenn only mentions Enrique Tarrio. Maybe that’s because the implication of the claims from the others leads to a place Glenn and Tucker don’t want to go. Of the four Proud Boys that Aram Rostom described as being FBI informants prior to January 6, three claimed to be sharing information about Antifa.

Reuters interviewed two Proud Boys members who spoke on the condition of anonymity about some members’ interactions with the FBI. Reuters also interviewed Proud Boys leader Enrique Tarrio, examined court records and interviewed sources close to the federal investigation.

The reporting showed:

– One Proud Boy left the group in December after telling other members he was cooperating with the FBI by providing information about Antifa, say Tarrio and two other Proud Boy sources. The former member, whom Reuters was unable to identify, insisted to group leaders that he had not revealed information about the Proud Boys, these people say.

– A second Proud Boy leader bragged in 2019 about sharing information with the FBI about Antifa, according to private chats leaked on social media. The chats’ authenticity was confirmed by a source familiar with the Proud Boys and the Jan. 6 case.

– A third Proud Boy leader, Joseph Biggs, who was indicted and charged with conspiracy in the January attack, has said in court papers he reported information to the FBI about Antifa for months. Reuters spoke to Biggs two days before the riot. In that interview, he said he had specific plans for Jan. 6, but declined to disclose them. But, he volunteered to Reuters in that call, he was willing to tell his FBI contact of his plans for the coming rally, if asked. Reuters wasn’t able to determine whether such a contact took place. [my emphasis]

What this suggests is not that the FBI set up the Proud Boys with paid informants, but the opposite: that under a President who “denounced” the Proud Boys by saying they should “Stand back and stand by,” and under an Attorney General who dismissed threats against a judge involving the Proud Boys as a technicality, the Proud Boys were viewed not as an equivalent (or greater) threat than Antifa, but instead were able to disguise their use of Antifa as a foil to sow violence by serving as informants against them.

If these three self-proclaimed informants are right (there’s good reason to doubt them), then it means under Bill Barr, the FBI was using informants not to set up the Proud Boys, but instead to set up Antifa.

If Tucker and Glenn were good faith actors and not paid propagandists, you would fully expect them to be outraged that the FBI set up Antifa.

Especially because of the possibility that the FBI didn’t take the Proud Boys threat seriously because (on top of being endorsed by the President and downplayed by the Attorney General), they prioritized investigating Antifa over investigating the Proud Boys. With that possibility in mind, read the framing of Glenn’s Substack post:

The original report, published by Revolver News and then amplified by Fox News’ Tucker Carlson, documented ample evidence of FBI infiltration of the three key groups at the center of the 1/6 investigation — the Oath Keepers, the Proud Boys, and the Three Percenters — and noted how many alleged riot leaders from these groups have not yet been indicted. While low-level protesters have been aggressively charged with major felonies and held without bail, many of the alleged plot leaders have thus far been shielded from charges.

The implications of these facts are obvious. It seems extremely likely that the FBI had numerous ways to know of any organized plots regarding the January 6 riot (just as the U.S. intelligence community, by its own admission, had ample advanced clues of the 9/11 attack but, according to their excuse, tragically failed to “connect the dots”).

[snip]

What would be shocking and strange is not if the FBI had embedded informants and other infiltrators in the groups planning the January 6 Capitol riot. What would be shocking and strange — bizarre and inexplicable — is if the FBI did not have those groups under tight control.

It is fucking insane that Glenn claims to be mystified by the possibility that a group endorsed in the President’s first Presidential debate and dismissed by the Attorney General would not get the proper scrutiny by the FBI. Trump very effectively punished people — especially at the FBI — for investigating entities close to him. And on September 29, 2020, Donald Trump made it quite clear the Proud Boys should get special treatment. That’s all the explanation you need. Though it is, indeed, reason for closer scrutiny, the kind of scrutiny that Democrats have been demanding, Glenn’s false claims to the contrary notwithstanding.

But if you want to raise the possibility that FBI had informants in the group, then the explanation may be equally as damning: That the FBI didn’t see January 6 coming because it was too busy treating Antifa as a terrorist threat.

Indeed, everything we know about the threat reporting on that day — which claimed the big risk of violence arose from the possibility of clashes between counter-protestors and right wing militias — suggests that may be what happened: that the FBI was looking the other way, possibly in conjunction with the militia that played a key role in planning the attack. That certainly accords with Acting Secretary of Defense Christopher Miller’s claim that Trump told him to use the National Guard to protect Trump supporters.

Since Glenn claims to be very familiar with the role of informants, surely he knows that multiple terrorists — definitely David Headley and allegedly Tamerlan Tsarnaev and Omar Mateen — have planned attacks under the cover of serving as informants (or in the case of Mateen, his father doing so). There were also at least two former FBI informants that played key parts in the Russian operation in 2016. The most logical answer to the questions that Glenn pretends to entertain is that the FBI didn’t look too closely at what Joe Biggs was planning (as part of a Kelly Meggs-brokered Florida alliance of militia groups with ties to Roger Stone), because they treated him as a credible source of reporting on Antifa.

The propaganda that goes unnoticed

The absurdity of accusing Sharon Caldwell of entrapping her spouse has, justifiably, gotten all the attention from this campaign.

But there’s a piece of propaganda that it incorporates — one parroted by Members of Congress — that deserves focus of its own: in framing his piece, Glenn not only claims that the plot leaders have been shielded from charges, he also states as fact that, “low-level protesters have been aggressively charged with major felonies and held without bail.”

While low-level protesters have been aggressively charged with major felonies and held without bail, many of the alleged plot leaders have thus far been shielded from charges.

In making this claim, Glenn is mindlessly parroting something that appears in the original Revolver piece.

The first category is the group of mostly harmless tourists who walked through already opened doors and already-removed barricades, and at most were guilty of minor trespassing charges and light property offenses. The second group consists of those who were violent with police officers, broke down barricades, smashed windows, belonged to a “militia” group engaged in military-style planning prior to the event, discussed transporting heavy weaponry, and so forth.

Up until now, the overwhelming (perhaps exclusive) share of counter-establishment reporting on 1/6 has focused on absolving the first group. And this is a valuable thing. The notion that these harmless “MAGA moms” wandering around the Capitol were domestic terrorists engaged in an insurrection is absurd. That many of these people are being held in prison, without bail, under harsh conditions, amounts to an unacceptable and outrageous abuse of basic human rights.

The only way to sustain a claim that “low-level protestors” have been charged with major felonies and held without bail is to claim that alleged plot leaders — people like Ethan Nordean, Joe Biggs, Billy Chrestman, and Kelly Meggs — were actually just protestors.

That’s because with perhaps two exceptions (people like Karl Dresch whose criminal records were cited as the reason for their detention), the only people who remain in jail are either those charged with planning the insurrection, or people who engaged in violence or came armed. And even many of those people were released. Just going in alphabetical order, Christopher Alberts brought a gun and a magazine to the insurrection but was released on bail. John Anderson is accused of assault but is out on bail. Richard Barnett, who entered Nancy Pelosi’s office with a high voltage stun gun, was initially jailed but has since been released. Bradley Bennett, whom the government argued went on the lam for weeks and destroyed his phone, got released on bail. Craig Bingert, involved in one of the conflicts with cops at a barricade, was released on bail. Gina Bisignano, accused of inciting violence and destruction with a bullhorn, was released on bail. Joshua Black, who was involved in confrontations with cops before heading to the Senate Chamber and said God ordered him to riot, was released on bail. James Breheny, an Oath Keeper who allegedly lied to the FBI and attended a key inter-militia planning event, is out on bail. Both men who brought zip ties to the Senate Chamber on the day of the riot, Eric Munchel and Larry Brock, are out on bail (and Brock isn’t even charged with a felony).

Even Brandon Fellows, charged with obstruction and present when Jeff Merkley’s office was trashed and laptop stolen, thus far remains out on bail, even after several bail violations.

Perhaps the only two people who remain in custody who weren’t either associated with a group being treated as a militia or involved in assault are Doug Jensen and Jacob Chansley. Both, though, played a kind of leadership role during the attack, both brought blades with them to the insurrection, both had direct confrontations with cops, and the government has argued (Jensen, Chansley) both exhibit the kind of fervor in their QAnon beliefs that pose a particular danger.

Given that QAnon had better success placing bodies where they were useful during the insurrection, I’m not sure it even makes sense to treat them differently than the more traditional militia.

Other than that, the men detained pre-trial are accused of leading the insurrection, precisely the people that this conspiracy theory falsely claims have been shielded from charges. Among the Proud Boys, Ethan Nordean, Joe Biggs, Charles Donohoe, Zack Rehl, and Kansas City cell leader Billy Chrestman remain jailed. Among the Oath Keepers, Kelly Meggs, Kenneth Harrelson, and Jessica Watkins remain jailed. All are accused of playing key leadership roles in the insurrection.

There were some questionable detention decisions early on. At this stage, however, there are no cases where people still detained are simply protestors on the wrong side of the law.

And yet even Glenn makes that false claim without any evidence.

Donald Trump’s FBI Director and Bill Barr’s hand-picked US Attorney called these defendants terrorists

There’s one more aspect of this conspiracy that is confounding.

Tucker Carlson and Glenn Greenwald suggest this is a Deep State plot to harm Trump and his supporters. Even Andrew McCarthy, who wrote a long and worthwhile piece debunking Tucker and Glenn’s conspiracies, nevertheless claims the prosecutorial decisions in this case reflect Democratic politicization.

Although Schaffer is plainly a member of the Oath Keepers conspiracy, the Biden Justice Department did not have him plead guilty to the conspiracy charge in the Oath Keepers indictment. That’s undoubtedly because, for the purposes of helping Democrats hype a white-supremacist terrorism narrative, the conspiracy charge is too minor. Although that charge has been portrayed by the media and the Justice Department as if it were a terrorism allegation, it actually involves a statute that criminalizes comparatively minor conspiracy offenses, fit for a maximum penalty of just five years’ imprisonment (with the possibility of no jail time at all).

So instead, DOJ had Schaffer plead guilty to a two-count criminal information, charging him with the substantive crimes of obstructing Congress and illegally carrying a dangerous weapon (bear spray) on restricted federal grounds. That allowed government officials to bray that Schaffer could be looking at 30 years in prison, which sure sounds a lot worse than five years. But it’s a feint. The 30-year level is just an aggregation of the maximum sentences prescribed by the two statutes in Schaffer’s guilty plea — i.e., the highest possible sentence that could potentially apply to anyone who violated these laws. The sentence a judge actually imposes within that 30-year range depends on the circumstances, with only the worst offenders getting the maximum sentence. Realistically, then, what matters in Schaffer’s case are the federal sentencing guidelines that apply specifically to him. In the plea agreement’s fine print, prosecutors concede that the guidelines call for a relatively paltry 41- to 51-month term, which may be reduced if his cooperation proves to be valuable.

I suspect that Schaffer is one of the unnamed, numbered “Persons” referred to in the Oath Keepers indictment.

[snip]

To be clear, Carlson is right that it is ridiculous for Attorney General Merrick Garland to portray the Capitol riot as if it were a terrorist attack and the people behind it as the most dangerous national-security threat we face. As noted above, the conspiracy allegation is not a terrorism charge: It carries a penalty of no more than five years. Carlson is right to point out that, despite the government’s and the media’s claims to the contrary, there is no indication that racism motivated the riot (the Oath Keepers, for example, are not a white-supremacist organization, and the indictment does not even hint that race had anything to do with January 6). Carlson is right that, even as congressional Democrats posture about the supposed need for a commission to fully expose the events of January 6, the government is withholding mounds of information — including the identity of the security official who killed rioter Ashli Babbitt, a concealment that would be unfathomable in a case where a police officer killed an African-American criminal suspect or a Black Lives Matter rioter. And Carlson was right to call out the ludicrous suggestion by Frank Figliuzzi, a former top FBI national-security official, that congressional Republicans who cynically supported Trump’s scheme to overturn the election result are the equivalent of a terrorist organization’s “command and control element.”

Christopher Wray — the FBI Director chosen by Donald Trump — has, from day one, called this a terrorist attack.

More importantly, the person leading this investigation for the first two months was the US Attorney Bill Barr installed with no input from Congress, Michael Sherwin. If Sherwin had his way, these people would be charged with seditious conspiracy. Under Sherwin, Proud Boy Dominic Pezzola’s crimes were labeled terrorism. Under Michael Sherwin, Jessica Watkins’ crimes were labeled terrorism. And while the Jon Schaffer cooperation agreement that McCarthy disdains was finalized after Sherwin left, signs of it were already evident before Sherwin left (note, McCarthy is probably wrong in his belief that Schaffer is one of the people identified thus far in the Oath Keepers conspiracy, and he misunderstands why prosecutors charged Schaffer like the did). A Sherwin-friendly article written after his departure quotes him stating these were not close cases (and also taking credit for making the bulk of the cases).

“These were not complicated cases,” Sherwin said of the Capitol breach probe. “What made these cases so unusual were the scope and scale of the crime,” reaching into almost every state in the country, including Florida.

Sherwin’s tour of duty as acting U.S. Attorney ended soon after the Biden administration took over the Justice Department. He was asked to stay on as the lead prosecutor in the Capitol breach probe, but Sherwin said it was time to move on after making the bulk of the cases in the investigation.

If you have a problem with the way this investigation unfolded, you have a problem not with Joe Biden’s DOJ, but instead with the guy Bill Barr installed into a politicized US Attorney role with no input from Congress.

Which may be why those who need to downplay the seriousness of the attack have instead resorted to baseless conspiracy theories.

Update: Because some dead-enders still don’t believe that Tucker Carlson has accused Sharon Caldwell of entrapping her husband Thomas, I’ve done an entire section showing how the same references to Person Two in a later filing show up as Thomas’ wife Sharon in an earlier one. I also describe all the efforts Sharon is making to keep her husband out of jail.

Update, July 25: Above, I noted that the Proud Boy leaders seem to have learned something that sated their curiosity about whether UCC-1 was an FBI informant. Indeed they did. At a recent hearing, one of the AUSAs on the case revealed that they had been provided this person’s identity and confirmation he was not an informant.

Several more relevant updates: First, Larry Brock has since been charged with obstruction, a felony, but remains out on bail. Doug Jensen, one of the last remaining people who wasn’t either a leader or charged with assault still being detained, was released on bail. Michael Curzio, one of just a few exceptions who got jailed because of past crimes, got released after serving a six month time served sentence for his misdemeanor trespass charge. Two non-violent defendants — Brandon Fellows and Thomas Robertson — have since had pretrial released revoked for violating their conditions.

Finally, the friend of former DEA officer Mark Ibrahim — who may himself serve as an FBI informant — not only debunked Ibrahim’s excuse for being at the insurrection, but made it clear that the FBI did not formally ask him to attend the event.

IBRAHIM said he went along with his friend, who had been asked by the FBI to document the event, and that he went along with his friend to assist with that effort.

Your affiant also interviewed IBRAHIM’s friend. According to the friend, IBRAHIM crafted this story about how his friend was at the Capitol to assist the FBI and that IBRAHIM was there helping him. IBRAHIM’s friend told your affiant that he was not there in any formal capacity for the FBI and that the FBI was not giving him directions or marching orders. He said that IBRAHIM crafted this story in an effort to “cover his ass.” According to IBRAHIM’s friend, IBRAHIM went to the rally in order to promote himself—IBRAHIM had been thinking about his next move after leaving the DEA and wanted the protests to be his stage for launching a “Liberty Tavern” political podcast and cigar brand.

Ibrahim, who brought another of the guns that Glenn claims no one brought to January 6 and displayed it publicly, is out on bail.

A New Emphasis on Threats of Violence in the Latest January 6 Conspiracy Indictment

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As I laid out the other day, the government charged six Three Percenters from California — American Phoenix Project founder Alan Hostetter, Russell Taylor, Erik Warner, Tony Martinez, Derek Kinnison, and Ronald Mele — with conspiracy. As I described, the indictment was notable in that just one of the men, Warner, actually entered the Capitol. But it was also notable for the way it tied Donald Trump’s December 19 call for a big protest on January 6 with their own public calls for violence, including executions, as well as an explicit premeditated plan to “surround the capital” [sic].

That’s one reason I find the slight difference in the way this conspiracy got charged to be of interest.

As I’ve been tracking over time, the now-seven militia conspiracies are structured very similarly, with each including coordinated plans to get to DC, some kind of plans to kit out for war, and some coordinated effort to participate in the assault on the Capitol. These conspiracies intersect in multiple ways we know of:

  • Thomas Caldwell’s communication with multiple militia to coordinate plans
  • Kelly Meggs’ formation of an alliance between Florida militias
  • Joe Biggs’ decision to exit the Capitol after the first breach, walk around it, and breach it again with two other Proud Boys in tow just ahead of the Oath Keeper stack
  • The attendance of James Breheny (thus far only charged individually), apparently with Stewart Rhodes (thus far not charged), at a leadership meeting of “multiple patriot groups” in Quarryville, PA on January 3, which Breheny described as “the day we get our comms on point with multiple other patriot groups”

All three militias mingled in interactions they’ve had with Roger Stone, as well, but thus far Stone only shows up in the Oath Keepers’ conspiracy.

In other words, while these represent seven different conspiracies (along with around maybe 15 to 20 identified militia members not charged in a conspiracy), they’re really one networked conspiracy that had the purpose of preventing the democratic replacement of Donald Trump.

Of particular note, what is probably the most serious case of assault charged against a militia member, that charged against Proud Boy Christopher Worrell, has not been included in any conspiracy. So while individual members of these conspiracies — including Joshua James, Dominic Pezzola, and William Isaacs, have been charged for their own physical resistance to cops — the conspiracies as a whole don’t yet hold conspirators accountable for the violence of their co-conspirators. The conspiracies only allege shared responsibility for damage to the Capitol, not violence against cops.

That said, the purpose and structure of the Three Percenter conspiracy is slightly different than the other six. The other six (Oath Keeper, Proud Boy Media, Proud Boy Leadership, Proud Boy Kansas City, Proud Boy North Door, Proud Boy Front Door) are all charged under 18 U.S.C. §371, conspiracy against the US. While the timeline of each conspiracy varies and while some of the Proud Boy conspiracies also include the goal of impeding the police, all six include language alleging the conspirators,

did knowingly combine, conspire, confederate, and agree with each other and others known and unknown, to commit an offense against the United States, namely, to corruptly obstruct, influence, and impede an official proceeding, that is, the Certification of the Electoral College vote, in violation of Title 18, United States Code, Section 1512(c)(2).

The purpose of the conspiracy was to stop, delay, and hinder the Certification of the Electoral College vote.

That is, those six conspiracies are charged (at least) as a conspiracy to violate the obstruction statute.

The Three Percenter SoCal conspiracy, however, is charged under the obstruction itself, 18 U.S.C. §1512(k).

Between December 19, 2020 and January 6, 2021, within the District of Columbia and elsewhere, the defendants … together with others, did conspire to corruptly obstruct, influence, and impede an official proceeding, to wit: the Certification of the Electoral College vote.

The object is the same — to impede the vote certification. But it is charged differently.

I’m still thinking through what the difference might mean. It might mean nothing, it might reflect the preference of the prosecutors, or it may reflect a rethinking at DOJ.

Nick Smith claims there’s no evidence Ethan Nordean corruptly influenced anyone else to violate their duty

But there are two things that may factor into it. First, since the government first started structuring its conspiracies this way, some defense attorneys have started challenging the applicability of the obstruction statute to the vote certification at all. For this discussion, I’ll focus on the argument as Nick Smith laid it out in a motion to throw out the entire indictment against Ethan Nordean. Smith makes two arguments regarding the conspiracy charge.

First, Smith argues that Congress only intended the obstruction statute to apply to proceedings that involve making factual findings, and so poor Ethan Nordean had no way of knowing that trying to prevent the vote certification might be illegal.

As indicated above, § 1512(c)(2) has never been used to prosecute a defendant for the obstruction of an “official proceeding” unrelated to the administration of justice, i.e., a proceeding not charged with hearing evidence and making factual findings. Moreover, there is no notice, much less fair notice, in § 1512(c)(2) or in any statute in Chapter 73 that a person may be held federally liable for interference with a proceeding that does not resemble a legal tribunal.

Of course, that argument ignores that Ted Cruz and the other members who challenged the vote claim they were making factual findings — so Nordean’s co-conspirators may sink this legal challenge.

Smith also argues that the obstruction charge fails under the findings of US v. Poindexter, in which John Poindexter’s prosecution for lying to Congress about his role in Iran-Contra was reversed, in part, because the word “corruptly” as then defined in the obstruction statute was too vague to apply to Poindexter’s corrupt failure to do his duty. Smith argues that the language remains too vague based on his claim that the government is trying to prosecute Nordean for his “sincerely held political belief that the 2020 presidential election was not fairly decided,” which prosecutors have no business weighing.

Here, the FSI’s construction on § 1512(c)’s adverb “corruptly” fails this Circuit’s Poindexter test. First, the FSI does not allege that Nordean obstructed the January 6 joint session “to obtain an improper advantage for himself or someone else. . .” Poindexter, 951 F.2d at 386. Instead, it contends he allegedly obstructed the session in support of the sincerely held political belief that the 2020 presidential election was not fairly decided. Such an interpretation of § 1512(c) is unconstitutionally vague because it leaves to judges and prosecutors to decide which sincerely held political beliefs are to be criminalized on an ad hoc basis. Dimaya, 138 S. Ct. at 1223-24. Second, the FSI neither alleges that Nordean influenced another person to obstruct the January 6 proceeding in violation of their legal duty, nor that Nordean himself violated any legal duty by virtue of his mere presence that day.

As I noted in my post on this challenge, this might be a nifty argument for a defendant who hadn’t — as Nordean had — started calling for revolution on November 27,  well before the state votes were counted. But Nordean had already made his intent clear even before the votes were counted, so Smith’s claims that Nordean was reacting to the election outcome is fairly easily disproven. (As with this entire challenge, it might work well for other defendants, but for a long list of reasons, it is far less likely to work with Nordean.)

There’s another, far more important, aspect to this part of the argument though. Smith claims, without any discussion, that Nordean didn’t “influence” any other person to violate their legal duty. Smith wants Judge Timothy Kelly to believe that Nordean did not mean to intimidate Congress by assembling a violent mob and storming the Capitol and as a result of intimidation to fail to fulfill their duty as laid out in the Constitution, whether by refusing to certify Joe Biden as President, or by running away in terror and simply failing to complete the task.

Unlike conspiracy, obstruction has a threat of violence enhancement

As I understand it (and I invite actual lawyers to correct me on this), the other difference between charging this conspiracy under 18 USC 371 and charging it under 1512(k) is the potential sentence. While defendants can be sentenced to 20 years under their individual obstruction charges (the actual sentence is more likely to be around 40 months, or less if the defendant pleads out), 18 USC 371 has a maximum sentence of five years.

If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.

But 18 USC 1512(k) says that those who conspire to obstruct shall be subject to the same penalty as they’d face for the actual commission of the offense.

(k)Whoever conspires to commit any offense under this section shall be subject to the same penalties as those prescribed for the offense the commission of which was the object of the conspiracy.

And obstruction has special penalties tied to murder, attempted murder, and the threat of physical force.

(3) The punishment for an offense under this subsection is—
(A) in the case of a killing, the punishment provided in sections 1111 and 1112;
(B) in the case of—
(i) an attempt to murder; or
(ii) the use or attempted use of physical force against any person;
imprisonment for not more than 30 years; and
(C) in the case of the threat of use of physical force against any person, imprisonment for not more than 20 years.

Thus, anyone charged along with a co-conspirator who threatened to kill someone may be exposed to twenty or even thirty years in prison rather than just five years.

As noted, there are several things about the overt acts charged in the Three Percenter conspiracy that differentiate it from the other militia conspiracies. They were even more explicit about their intent to come armed to the Capitol than the Oath Keepers were with their QRF (and their stated excuses to be armed relied even less on what I call the Antifa foil, the claim they had to come armed to defend against people they fully planned to incite).

And Hostetter twice publicly threatened to execute people. He posted a YouTube on November 27 in which he said, “some people at the highest levels need to be made an example of with an execution or two or three.” And he gave a speech on December 12 in which he demanded, “There must be long prison terms, while execution is the just punishment for the ringleaders of the coup.”

In other words, I think by charging this conspiracy under the obstruction statute rather than the conspiracy one, the government has exposed all of Hostetter’s co-conspirators, along with Hostetter himself, to far longer sentences because he repeatedly threatened to execute people.

The Three Percenter conspiracy makes threats to intimidate Mike Pence and members of Congress an object of the conspiracy

My guess is that the government is going to argue that, of course, Nordean was trying to corruptly influence others to violate their legal duty to certify the electoral results. Every single militia includes at least one member who made explicit threats against Mike Pence or Nancy Pelosi, and the Proud Boys, especially, have no recourse by claiming they showed up to listen to Donald Trump, since instead of attending his speech, they were assembling a violent mob to march on the place where Mike Pence was going to enact his official duties.

The Proud Boys were there to intimidate Mike Pence and members of Congress in hopes they would fail to fulfill their duty as laid out in the Constitution. If these charges make it to trial, I think prosecutors will be able to make a very compelling argument that assembling a mob in anticipation of Pence’s official acts was designed to intimidate him corruptly.

But, if I’m right about the criminal penalties, with the Three Percenter conspiracy, the government is going one step further. This conspiracy is structured to hold each member of the conspiracy accountable for the threats of murder made by Hostetter, the threat posed by planning to be armed at the Capitol, as well as the violence of others in their networked conspiracy. And even for those who didn’t enter the Capitol but instead egged on violence from some rally stage or behind some bullhorn, this conspiracy seems to aspire to expose co-conspirators accountable to a twenty year sentence for their (unsuccessful) efforts to intimidate Mike Pence to renege on his duty.

Update: I should add that someone with no prior convictions who goes to trial and is found guilty would face closer to 7-9 years with a full threats of violence enhancement. It would not be the full 20 years.

Update: Thanks to harpie for helping me count to seven (I had the wrong total number originally).

Accused Terrorist* Leader Ethan Nordean Complains He Got Charged with Trespassing

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The biggest advantages that Ethan Nordean and the other men charged in the Proud Boys Leadership conspiracy have are a judge, Tim Kelly, who is very sympathetic to the fact that they’re being held in jail as the government fleshes out the case against them, and the 450 other January 6 defendants who have been charged with one or another of the same charges the Proud Boys were charged with. The biggest disadvantages are that, as time passes, the government’s case gets stronger and stronger and the fact that seditious conspiracy or insurrection charges not only remain a real possibility, but are arguably are a better fit than what they got charged with.

That’s why it baffles me that, minutes after Judge Kelly noted that every time Nordean files a new motion, Nordean himself tolls the Speedy Trial clock, Nordean’s lawyer, Nick Smith, filed a motion to dismiss the entirety of the indictment against Nordean.

Don’t get me wrong; I think Smith is a good lawyer and I’m grateful for the January 6 defense attorneys who are making aggressive challenges to the charges against their clients; it’s an important check on the First Amendment risks of this prosecution. And I imagine the filing was all ready to go before yesterday’s status hearing, where Kelly kept repeating that he is sympathetic to the plight of the defendants, but noted that the last motion Smith filed — a motion for a Bill of Particulars, a kind of motion that, in general, rarely succeeds — probably tolls the Speedy Trial clock whether or not Kelly were prepared to rule against prosecutors’ request for more time.

But tactically, trying to throw out every single crime, up to and including his trespassing charge, charged against one of the key leaders of a terrorist attack that put our very system of government at risk trades away the two biggest advantages Nordean has on legal challenges that won’t eliminate the prosecution against Nordean.

The 66-page motion goes one by one, arguing that every charge against Nordean is vague or wrongly applied. Obstruction — 1512 — only applies for Congress when it is engaged in an investigative function, not what Nordean claims (notwithstanding the questions that sympathetic members of Congress raised about the vote count) was just a formal technicality. Leading an insurrection also doesn’t have the requisite corrupt nature, because threatening the Vice President and the Speaker of the House with assassination would not have the effect of influencing members of Congress to do what the mob wanted. Civil disorder — 231 — was designed to jail civil rights leaders and so (it suggests) shouldn’t be used against a guy trying to invalidate the votes of 81 million Americans. A riot affecting a vote count that affects every state and shut down much of DC did not affect interstate commerce. There were other police, in addition to the Secret Service at the Capitol, and so the specific terms of 1752 — the trespassing charge — don’t apply here. Plus, poor Ethan Nordean had no way of knowing that barriers that were clearly in place when he started the approach to the Capitol were barriers meant to keep him out. And, finally (though this comes off as half-hearted), Nordean has no idea what property his conspiracy depredated even though it has been discussed ad nauseum in past hearings.

Along the way, Smith shades the case in ways that prosecutors will easily rebut, as when he suggests Nordean, whom the indictment cites invoking revolution as early as November 27 (and so even before the states certified their votes), was motivated out of a sincere belief that the election was stolen because of voter fraud.

Nordean did so, the government alleges, in the misguided belief that the legislature should refuse to certify the vote upon a review of evidence that he mistakenly contended showed voter fraud.

[snip]

Instead, it contends he allegedly obstructed the session in support of the sincerely held political belief that the 2020 presidential election was not fairly decided.

He lays out the legislative history for many of these laws. He provides the entire history of the Executive Mansion. He falsely represents that the only people who are being charged with 1512 are gang members like Nordean. More ridiculous still is the claim that hundreds or thousands of other people aren’t being charged with 1752 and so Nordean’s charge must solely stem from his gang membership, when in fact, virtually every person who is being charged, is being charged with 1752.

Some of these arguments have merit. For example, I’ve repeatedly raised concerns about the way the government has hung all its felony counts on a fairly novel reading of obstruction (basically, the argument that the insurrectionists were obstructing the official proceeding of certifying the vote). But other defendants — albeit mostly Proud Boys — are already bringing these challenges (and more are likely to now that Paul Hodgkins’ plea has made it clear that the government will insist defendants plead to that count). The DC Circuit is far more likely to assess those arguments on their legal merits if someone like business owner Jenny Cudd, who actually attended Trump’s rally before heading to the Capitol, and who didn’t preassemble a mob of 100 gang members to attack the Capitol even before Trump’s speech (that said, Cudd’s challenges thus far have been motions to change venue and to sever).

I would like the 231 challenge to succeed, but similar challenges have thus far failed when launched by people in actual states rather than the nation’s capital that by its geographic nature can carry out little commerce without transit through Maryland and/or Virginia, and in protests that would have been prosecuted solely by state cops if Billy Barr didn’t bigfoot on the events

Even Smith’s challenge to the trespassing charge was genuinely interesting when he made the same argument for another of his clients, Couy Griffin, who attended Trump’s rally and is not alleged to have entered the Capitol itself. But it works very differently for a guy who, rather than attending Trump’s rally, instead spent the morning of January 6 preparing a mob to march on an event that was important precisely because Mike Pence, along with his Secret Service detail, would be there conducting official business.

That’s the thing about being charged along with 450 other people: Where a claim has legal merit, other defendants are going to make such challenges. Those other defendants will be taken more seriously by the DC Circuit (the detention case for Chris Worrell has already shown that the DC Circuit sees the Proud Boys’ role in this as distinct from the unaffiliated defendants). And most of those defendants, if they succeed, won’t be promptly charged with insurrection or seditious conspiracy to sustain the prosecution.

And if any of these challenges brought by others succeed, then at that point, Nordean could point to the appellate decision and get his charges dropped along with hundreds of other people. But launching the challenge now, and in an omnibus motion claiming that poor Ethan didn’t know he was trespassing, is apt to get the whole package treated with less seriousness. Meanwhile, Nordean will be extending his own pre-trial detention. The government will be given more time to try to flip other members of a famously back-stabbing group, possibly up to and including Nordean’s co-conspirators (whose pre-trial detention Nordean will also be extending). And Judge Kelly will be left wondering why Nordean keeps undermining Kelly’s stated intent to limit how much the government can draw this out.

The worst thing about this motion, though, is that both the substance of it and that it was filed by one of the key terrorist leaders of this attack serves as the single best argument I’ve seen for passing a domestic terrorism statute. I don’t want January 6 to lead to passage of a domestic terrorism statute so the government has a way to criminalize membership in the Proud Boys. But claiming that Ethan Nordean shouldn’t even be held accountable for trespassing is a good way to ensure that one is passed.

*I believe it is legally accurate to use the term “terrorist” with Nordean because the government has charged him with a crime that can carry a terrorist enhancement — and in fact the government laid that out explicitly in the superseding Front Door indictment. I also believe the January 6 attack was a classical case of terrorism: the use of political violence to achieve a political goal.

Y’all Qaeda Northwest: Ethan Nordean Provides Yet More Proof of the Proud Boys’ Sophistication and Resilience

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The government and Ethan Nordean are having a dispute that is, at least procedurally, about whether by giving Nordean the Telegram text messages he demanded in prioritized fashion, the government committed a Brady violation. Nordean started this dispute on April 29 with a filing admitting that the texts he received before his detention hearing were the ones he asked for specifically but still complaining that he didn’t get all his texts at once.

Today, the government produced for the first time additional Telegram messages extracted from Nordean’s phone. The government provided no explanation as to why they were produced after the hearing on its third detention motion and not beforehand.1 Like the Telegram chats it used to support detention, today’s production was drawn from the same device (Nordean’s phone), the same app (Telegram), and only postdate by some days the chats the government used to detain Nordean. In reviewing the following chats, the Court may recall that because the Telegram messages are encrypted and, according to the government, “designed to evade law enforcement,” the government would have the Court believe the app users are speaking candidly in Telegram.

On March 25, Nordean requested that the government produce, at least by March 30, Telegram chats on Nordean’s phone sent and received between 1/4/21 and 1/8/21. Nordean did not say that no other chats should be produced, nor did he waive any right to Brady material of which the government was aware. On March 9, Nordean served a discovery letter on the government seeking all of the defendant’s statements and requesting that Brady material be produced according to the schedule in Rule 5.1.

The government response doesn’t point out that they gave Nordean precisely what Nordean asked for. It does describe how they provided Nordean’s Telegram chats in three waves, with the entire content of his phone provided by April 30.

On April 29, 2021, the government produced to defendant Nordean eleven (11) strings of text messages, totaling over 5,000 pages, that contained the terms “Ministry of Self-Defense” or “MOSD,” and that were recovered from defendant Nordean’s phone.

Thereafter, on April 30, 2021, a full copy of an extraction from defendant Nordean’s phone was produced to Nordean’s counsel. That production included approximately 1,172 Telegram message strings (totaling over 1.3 million messages). The extracted text of the Telegram messages in Nordean’s phone runs over 204,000 pages when printed in .pdf format, which does not include any of the images, audio, or video files that are associated with the message strings. In addition to the Telegram messages, the phone contains hundreds of other communications using other platforms, including other encrypted platforms such as Signal and WhatsApp. The government’s review of these message strings, hundreds of which contained communications between December 2020 and January 2021, is ongoing, and all of this information is in defendant Nordean’s possession.

Nordean’s reply doubles down on the accusations of misconduct, now claiming the government intentionally withheld substantiation of Nordean’s claim to have disavowed rallies.

Nordean had presented an audio recording of himself in a conversation with members of his group in which he rejected political rallying. The recording shows him annoyed with how often he had to “repeat himself” on the point. The clip was recorded in February, shortly before his arrest. It is not “self-serving,” as he was communicating with his in-group and through the medium that the government alleges was used “to evade detection.”1 The Court found that the clip “does suggest that, at some point, [Nordean] agreed that the Proud Boys should stop rallying.” Hr’g Trans., 4/19/21, p. 55:21. However, the Court also found that “without any further context there’s no indication that that was some kind of permanent decision.” Id., p. 55:22.

At the time of the hearing, there was “further context.” The government knew it and did not inform the defense or the Court. Shortly after that hearing, on April 29, the government produced late January chats in which Nordean repeatedly discussed “bans on rallies”; in which Nordean said, “fuck politics, build communities and local economy” (Cf. the Court: “politics has not [passed]”); where Nordean endorses the doubly capital notion “THE PROUD BOYS ARE NOT MARCHING ON CAPITAL BUILDINGS”; and in which Nordean reacts dismissively, in real time, to the conspiracy charge supposedly predicating his detention. On its own, the government’s late production of these chats is unequivocally a violation of the Due Process Protections Act and Local Criminal Rule 5.1. It is also a violation of Rule 3.8(e) of the D.C. Rules of Professional Conduct for prosecutors.2

2 “The prosecutor in a criminal case shall not . . . Intentionally fail to disclose to the defense, upon request and at a time when use by the defense is reasonably feasible, any evidence or information that the prosecutor knows or reasonably should know tends to negate the guilt of the accused or mitigate the offense.” Rule 3.8(e) of the D.C. Rules of Professional Conduct.

In his reply Nordean asks a fair question — why the government didn’t just keep screen-capping texts that were a “two-second scroll” down Nordean’s phone from the chats the government had turned over in response to Nordean’s specific request. It seems the government has a reasonable answer: because it was responding to a specific request, though they have yet to say that specifically.

Nevertheless, neither side is treating this as a dispute over misconduct. The government notes that his original motion asks for no relief.

Defendant Nordean’s notice alleging a violation of those provisions (ECF 79) seeks no relief, and no relief or further action by the Court is necessary or appropriate.

Nordean’s reply asks for no relief either. It instead says that he is “developing evidence,” but once again asks for no relief.

The government concludes its response by saying Nordean’s “notice seeks no relief because defendant is entitled to no relief.” ECF No. 84, p. 12. The government is mistaken. The notice sought no relief because Nordean is developing further evidence of the government’s misconduct in filing a series of misleading claims in this matter and in withholding evidence so that it cannot be timely used.

And Nordean goes from that comment — stating that it is incorrect that he asks for no relief by once again asking for no relief — to instead make an argument about bail. (This series of exchanges is actually about preparing a record for Nordean’s detention challenge at the DC Circuit.)

Nordean points to this declaration from Daniel Aurellano stating that Ethan Nordean is no longer the President of Proud Boys Seattle Chapter, because he, Aurellano, was elected to replace him.

Nordean is also developing evidence showing that the premises for revoking his release order are factually mistaken. For example, although Nordean’s leadership role in the Proud Boys was cited to detain him, he is no longer a leader, in any sense of the word, in that organization, nor does he have any decision-making authority, as sworn statements indicate and will further indicate.

Aurellano says he was elected to replace Nordean “in February 2021,” but doesn’t say when that happened. Nor does Aurellano say when, in February 2021, the Proud Boys Northwest chose to dissociate from the national Proud Boys. He does, however, say Nordean stopped participating in Proud Boys Internet communications after his arrest in February 2021. Which suggests Aurellano got elected to replace Nordean at a meeting that Nordean called for while still the head of the chapter, on January 20, and at which Nordean planned to discuss “bugout bags” and “bulk armor deals” because they were “on the brink of absolute war.”

Nordean makes much of the fact that subsequent to this January 20 statement, and so also subsequent to Joe Biggs’ arrest on January 20, he made a series of comments forswearing rallies.

But that means one of the last things Nordean did while still in charge was call for and prepare for war — not to mention to call for bugout bags for which the old passport of one’s ex-wife, such as the one the government alleges (though the allegation is contested) was out on Nordean’s bedroom dresser when the FBI came to search his house — would be acutely valuable. And then everyone started getting arrested and the Proud Boys took steps to cover their tracks.

Amid this whole bail dispute pretending to be a misconduct dispute, however, Nordean has helped to lay out both that this is a remarkably organized militia, and it is adopting a tactic other terrorist groups have in the past: to splinter and rebrand as a way to attempt to evade prosecution, as if the Proud Boys Northwest had adopted the name Y’All Qaeda Northwest like African branches of the Islamic State did.

Thus far, filings in the Proud Boys Leadership conspiracy case have shown that:

  • The Proud Boys started preparing a compartmented cell structure in anticipation of the January 6 insurrection on December 29
  • Enrique Tarrio anticipated he would be arrested when he came to DC on January 4 and so provided for a succession plan
  • Charles Donohoe allegedly attempted to destroy evidence of past planning in the wake of Tarrio’s arrest, specifically in an attempt to avoid gang charges (whether he succeeded or not remains contested)
  • In the aftermath of January 6, the Proud Boys (and Nordean specifically) took steps to prepare for war
  • In Seattle, the Proud Boys responded to Nordean’s arrest by ensuring the continuity of the organization

Again, none of this is exculpatory for Nordean. It shows the Proud Boys operating like sophisticated terrorist groups have operated in the past, in an attempt to retain viability while under government scrutiny.

And along the way, Nordean and the government have been drawing an utterly convincing argument — with two attempts to access passports and an explicit call for bugout bags — that he would flee the country the first chance he got.

January 6: A Change of Pace

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Although GWU’s tracker, which is still the best way to keep track of all the January 6 defendants (though this visual story from WaPo using their data is nifty) added four new January 6 defendants yesterday, the pace of new defendants has slowed considerably. While there are still some detention fights, several of those disputes (Proud Boys Ethan Nordean and Joe Biggs, and disorganized conspirators Nate DeGrave and Ronnie Sandlin, as well as Neo-Nazi sympathizer Timothy Hale-Cusanelli — have moved to the DC Circuit.

We’re likely to have more bail revocation fights. The other day, for example, Landon Copeland — who made news for his meltdown during a magistrate judge’s hearing last week — was arrested for some still unidentified bail violation. The government has also moved to revoke Patrick Montgomery’s bail because he — a professional hunting guide — shot a mountain lion that he — a felon — cannot legally possess.

But there are a couple of developments this week that point to what’s going on with this investigation.

Delayed phone exploitation

In a hearing in the case against mother and son defendants Deborah and Salvador Sandoval, Deborah’s attorneys were anxious to move to trial based off an apparent misunderstanding that the evidence on her sole computer device, her smart phone, would show she barely entered the Capitol. Meanwhile, the government revealed that because Salvador chose not to share passwords to his multiple devices, those are taking a lot longer to exploit. As I’ve already noted, Ethan Nordean is the only Proud Boys leadership co-conspirator whose phone DOJ was able to exploit without cracking the password first (the FBI got the password from Nordean’s wife). Exploiting all these phones is going to take a lot of time.

In another case, there appear to be privileged communications on Eric Torrens’ phone, which will delay the exploitation of that for up to four weeks as a filter team reviews the content.

In other words, even before you consider any delay created by FBI’s need to respond to Signal’s Moxie Marlinspike’s exposure of vulnerabilities in Cellebrite’s code, it will take some time to process the vast volume of evidence the government has obtained since January 6.

The network analysis

The arrest of Brittiany Dillon gives a sense of another cause of delay.

Bryan Betancur was one of the first wave of January 6 defendants to be arrested, on January 17, after his parole officer alerted the FBI that he had lied about handing out Bibles to get permission to travel from Baltimore to DC that day. The government got a warrant for his phone on January 20. Once they got into his phone, they discovered text messages between Betancur and Dillon in which Dillon described falling in the door of the Capitol during the riot. The government found video of her — falling down as she entered — on surveillance videos by January 23. The government obtained phone and Google warrants to confirm that Dillon had been inside the Capitol the day of the riot. For some reason, the FBI only got around to interviewing Dillon’s father, ostensibly about Betancur, on April 21; the agent got Dillon’s father to confirm Dillon’s ID while they were talking.

This is similar to what happened with Patrick Montgomery, who like Betancur was arrested on January 17. Only after FBI exploited his phone and found some key pictures did they arrest a buddy he was with that day, Brady Knowlton, while pursuing two others.

These arrests of friends of early arrestees may reflect an FBI agent trying to get arrest numbers, but in a number of cases, they seem to reflect larger investigative strategies based on things investigators have found in the profiles of the original defendant. By my count there are about 18 cases of network arrests aside from the militia conspiracies, and about half of those look like they may be more interesting than friends getting scooped up together. I would expect to see more of this going forward.

Delayed arrests

The two month delay between the time DOJ identified active duty Marine, Major Christopher Warnagiris, as the person who played a key role in keeping the East door of the Capitol open after it was first breached on January 6 and when they arrested him on Wednesday is far more interesting.

As the arrest affidavit explains, FBI isolated Warnagiris as a suspect based on his conduct as shown in video, and then published a Be On the Lookout picture to figure out who he was. On March 16, a former co-worker IDed him, and on March 17, the FBI interviewed one of his current co-workers, who positively IDed Warnagiris.

And that’s it–that’s where the narrative in the affidavit, which was signed on Wednesday, ends. They get a BOLO-based tip on March 16, and get military witnesses to confirm his ID on March 17. And that’s all they’re telling us about who he is and what other evidence they have against him.

I’m sure that’s not all that has transpired since FBI discovered an active duty Major played a key role in keeping the East Capitol breach open.

All the while, someone who by dint of being an active duty service member has clearance, has (as far as we know) been going into Quantico every day for the almost two months since they IDed him. That’s … an interesting investigative decision.

Compare that narrative to the one told in the arrest affidavit of Timothy Hale-Cusanelli, the Army reservist and Nazi-sympathizer who worked as a contractor at Naval Weapons Station Earle in New Jersey. On January 12, an informant told the FBI that Hale-Cusanelli was at the riot, on January 14, the informant recorded a conversation in which Hale-Cusanelli admitted to pushing and shoving along with the rest of the mob. Hale-Cusanelli has been jailed since the very next day, January 15 (he is appealing his detention to the DC Circuit). Hale-Cusanelli has not been charged with assault and he is not known to have played such a key role in compromising the Capitol from a second side.

Now, for many defendants, I can see taking your time after the initial rush of arrests. After all, if they were going to delete their Facebook, that would have happened (and did happen, with a goodly number of defendants) by January 9. But Warnagiris seems like a more urgent risk.

And, remarkably, DOJ apparently did not ask for any special conditions on Warnagiris. He has no location monitoring, no restrictions on possessing a gun, no specificity to his travel around DC (most defendants have stay-away orders, but for people like Warnagiris who are local to DC, they’re sometimes restricted to their District). They did not ask him to surrender his passport. Now, perhaps something is also going on with him in the military. But the whole thing — on top of the inevitable shock of having an active duty officer arrested — raises more questions than other cases.

All of which is to say that, with a defendant who genuinely poses unique security risks, the government is now taking their time to flesh out their investigation.

I’ve said from the start that this investigation has been lightning quick. That’s still, absolutely, true. But there’s going to be a lot more happening behind closed doors in the weeks ahead.

DOJ’s Curious Militia Math

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The government has responded to Ethan Nordean’s claim that texts that confirmed he was a recognized leader in the Proud Boys were exculpatory. In a filing that lays out more of how the Proud Boys responded — first with glee, then with cover stories, then with plans to regroup — to the events of January 6, DOJ includes a curious paragraph describing Enrique Tarrio establishing a very hierarchical upper leadership of the militia.

On December 29, 2020, the Proud Boys Chairman announced the leadership and structure of the Ministry of Self-Defense. The leadership and structure included an “upper tier leadership” of six people, which included Proud Boys Chairman, Nordean, Biggs, and Rehl. Later that evening, Donohoe explained the structure with reference to the upcoming trip to Washington, D.C. Among other things, Donohoe explained that the MOSD was a “special chapter” within the organization. The “special chapter” was not to have any interaction with other Proud Boys attending the event.

Other Proud Boys attending the event were to coordinate with their own chapters and “do whatever you guys want.”1

The filing goes on to describe the statements of, “one member (“Person-1”) of the upper tier leadership” and “another member of MOSD leadership (Person-2).” In addition, it describes the comments of our old friend UCC-1, an unindicted co-conspirator, clearly distinguishing that person’s legal risk from the others.

When UCC-1 was first introduced in the indictment against the Proud Boys Leadership, it was implied that both he and Charles Donohoe were also in the leadership MOSD, and described the total membership as the four indicted defendants plus “a handful of additional members.”

39. On after Chairman’s January 4, 2021, shortly after Proud Boys Chairman’s arrest pursuant to a warrant issued by D.C. Superior Court, DONOHOE expressed concern that encrypted communications that involved Proud Boys Chairman would be compromised when law enforcement examined Proud Boys Chairmans’ phone. DONOHOE then created a new channel on the encrypted messaging application, entitled, “New MOSD,” and took steps to destroy or “nuke” the earlier channel. After its creation, the “New MOSD” channel included NORDEAN, BIGGS, REHL, DONOHOE, and a handful of additional members.

40. On January 2021, at 7:15 p.m., DONOHOE posted a message on various encrypted messaging channels, including New MOSD, 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.” DONOHOE then wrote, “Stop everything immediately” and then “This comes from the top.”

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

Perhaps it’s because I’m what one of Nordean’s buddies calls a “purple haired faggot,” and so can’t understand Tarrio hierarchical logic. But by my math, these two filings suggest the MOSD leadership looks like this:

  1. Enrique Tarrio (who correctly anticipated he’d be arrested in advance of the insurrection)
  2. UCC-1
  3. Joe Biggs
  4. Ethan Nordean
  5. Zach Rehl
  6. Person 1
  7. Person 2

One-two-three-four-five-six-seven. Not six, seven. And that’s assuming Donohoe is not part of the group, though the indictment had suggested he was.

Whether UCC-1 is in or out of that leadership group is a key distinction. The government has a presumed informant who said some of the most inflammatory things in advance of the insurrection:

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

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

If this person was an active informant for the FBI going in — as an Aram Rostom story suggests — it means someone at the FBI lost control of their informant and rather than punishing the informant for participating in an insurrection and not informing the FBI about it, it is giving the person a pass. It would mean that because this person had made accusations to feed Billy Barr’s demand for dirt on Antifa, he is getting a pass on insurrection.

But if this informant provided the FBI some kind of warning, then it means the Bureau failed, badly, because the FBI has claimed that it had no warning of events of the day, not even with multiple Proud Boys in its informant ranks, including, possibly, one with top level access.

Not to mention the fact, if this guy had the access some of these filings suggest, it raises real questions about why the FBI still doesn’t know precisely how the operation rolled out.

David Headley and Tamerlan Tsarnaev demonstrate that one way to plan a terrorist attack without the FBI seeing it is to serve as an informant. And if the Proud Boys managed to carry out fairly complex planning for an insurrection because so many of them were trading information on Antifa, it would mean FBI’s handing of informants, plus DOJ’s commitment, from the very top, to prioritize Antifa at the expense of right wing militia, were key ingredients to the success of January 6.

DOJ Got All the Proud Boy Telegram Texts from Ethan Nordean’s Phone

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Judge Tim Kelly just wrapped up a status hearing with three of the four Leadership Proud Boy conspiracy defendants: Ethan Nordean, Joe Biggs, and Charles Donohoe (Zach Rehl’s attorney is still arranging her appearance before the DC court).

A really important detail came out about the Telegram texts that have been central to the conspiracy case against the defendants: According to Nordean’s attorney Nick Smith, they call came from Nordean’s phone.

He said that, in part, to anticipate some of the challenges he’ll make to the evidence. First, he’s going to claim the search was illegal and move to suppress it based off a ruling that the government has dropped that theory of crime (that won’t work under Fourth Amendment precedents, but you have to try).

More importantly, he said the government had gotten into the phone — rather than be forced to crack it, as they are doing with everyone else’s phone — because Nordean’s wife gave the FBI the passcode.

It had seemed like someone listed as Unindicted Co-Conspirator 1 may have shared them with the government. That person says some pretty damning things in the chats.

39. On after Chairman’s January 4, 2021, shortly after Proud Boys Chairman’s arrest pursuant to a warrant issued by D.C. Superior Court, DONOHOE expressed concern that encrypted communications that involved Proud Boys Chairman would be compromised when law enforcement examined Proud Boys Chairmans’ phone. DONOHOE then created a new channel on the encrypted messaging application, entitled, “New MOSD,” and took steps to destroy or “nuke” the earlier channel. After its creation, the “New MOSD” channel included NORDEAN, BIGGS, REHL, DONOHOE, and a handful of additional members.

40. On January 4, 2021, at 7:15 p.m., DONOHOE posted a message on various encrypted messaging channels, including New MOSD, 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.” DONOHOE then wrote, “Stop everything immediately” and then “This comes from the top.”

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

42. On January 5, 2021, at 1:23 p.m., a new encrypted messaging channel entitled “Boots on the Ground” was created for communications by Proud Boys members in Washington, D.C. In total, over sixty users participated in the Boots on the Ground channel, including NORDEAN, BIGGS, REHL, DONOHOE, and UCC-1.

That, in turn, had led to speculation, and in no way just from me, that UCC1 had already flipped on his buddies and was cooperating.

What was said today appears to be inconsistent with that. Indeed, it seems all the talk of four informants from the Proud Boys working with the FBI mostly pertained to helping Attorney General Billy Barr gin up claims against Antifa, and not (yet, at least) informing on each other.