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Terrorists in the Tunnel: The Omnibus Indictment for Officer Daniel Hodge’s Assault

One of the most spectacular assaults from January 6 was that charged against Patrick McCaughey for crushing Officer Daniel Hodges in a door.

McCaughey was charged early — on January 19. Over time, though, his indictment has become more than that — an indictment incorporating the worst assailants involved in a long brutal fight that took place in the Lower West Terrace entrance to the Capitol, deemed the Tunnel. First Tristan Chandler Stevens was added in March. Christopher Quaglin and David Judd were added in April. Robert Morss and Geoffrey Sills were added in June.

On August 4, the government rolled out a superseding indictment that adds two newly charged defendants, Steven Cappuccio and David Mehaffie, and incorporates Freddie Klein into the existing one; it was unsealed yesterday after Cappuccio and Mehaffie were arrested.

A notice filed in both the McCaughey and Klein dockets on July 29 explains the logic of this indictment.

All nine of these individuals are or will be charged primarily with assaultive conduct on law enforcement officers in and around the first landing of the Lower West Terrace as well as the Lower West Terrace archway, colloquially referred to as “the tunnel,” of the United States Capitol Building on January 6, 2021, between approximately 1:00 p.m. and 4:30 p.m. This tunnel entranceway to the Capitol Building, which is approximately ten feet wide, was the site of a significant physical confrontation with law enforcement for several hours. Each of these defendants was an active participant in the first wave of rioters to enter the tunnel between 2:40 and 3:18 p.m., at which time law enforcement successfully cleared the tunnel of rioters for the first time that day. Moreover, several of the defendants, including Mr. Klein, committed additional crimes on the first landing of the Lower Wester Terrace before reaching the tunnel for the first time. Accordingly, because the primary criminal conduct alleged against these individuals overlaps both temporally and geographically, and the evidence against them will be mutually admissible, including the testimony of witnesses and their victims, the government is preparing to charge this group in a single indictment and to present evidence against them in a single trial.

The same notice says that while there are “dozens” of people who committed crimes along with these defendants, they do “not expect” to add any other defendants to this one.

I’ve tried to lay out which defendants got charged with what crimes using what weapons in this table. Altogether, I think this indictment does four different things.

First, Cappuccio is charged with grabbing Hodges’ gas mask and pulling if off and then stealing his police baton.

McCaughey is the guy whose name is on this indictment and who has, since the days after the riot, been one of the chief focal points because of that assault. But Cappuccio was actually the guy alleged to be doing to the most harm to Hodges (a point that McCaughey nodded to in a successful bid to get pretrial release). Cappuccio has finally been added alongside McCaughey, charged in one of the signature assaults of the attack.

Second, this indictment charges Mehaffie along with a bunch of people he gave instructions to during the hours long assaults, as captured by his Sedition Hunter moniker, Tunnel Commander and explained by HuffPo.

Dave Mehaffie of Dayton, Ohio, was known to online investigators as #TunnelCommander because he was issuing orders to members of the mob who were attacking officers during a brutal battle at the lower western terrace entrance to the Capitol. Mehaffie was 86-AFO on the FBI’s Capitol wanted list, meaning he was wanted for assault on a federal officer.

A judge signed an arrest warrant for Mehaffie on Aug. 4 after he was indicted by a grand jury as part of an existing case.

Mehaffie was involved in one of the toughest battles of the Capitol siege. Members of the mob had stormed past police barriers and ascended the scaffolding set up for President Joe Biden’s inauguration on Jan. 20, and were attempting to break into the building. During the “medieval” battle, members of the pro-Trump mob kidnapped D.C. Metropolitan Police Officer Michael Fanone, who was repeatedly electroshocked. Rosanne Boyland, a pro-Trump member of the mob, was trampled during the brutal clash. The woman’s brother-in-law said that former President Donald Trump “incited a riot” that killed one of his “biggest fans.”

Alone among these nine defendants, Mehaffie is not charged with assault using a dangerous weapon and/or directly striking the officer victim (that’s roughly speaking the difference between the 111(a)(1) charges and the 111(b) charges in the table). Instead, Mehaffie is charged with one count of assault and abetting assault, lasting from 2:40 to 3:18, presumably amounting to his directing the assaults of the others, along with civil disorder and obstruction. But that doesn’t convey the seriousness of his actions, because he had a role in making the other assaults more effective.

That’s why including him on this omnibus indictment will be important. By charging all nine men together, DOJ will be able to show how these men, who aren’t alleged to have known each other before the assault and aren’t charged with conspiracy, nevertheless worked in concert, always ensuring there were people at the front to press the assault, with Mehaffie playing a key role in making it all work (Morss, too, had a key role in directing traffic in the tunnel, which will also become clearer at trial with all charged together). In isolation, these men’s assaults can be minimized. In concert, their actions had a devastating effect.

Finally, Klein’s inclusion does more than just get him added to what will be a very powerful trial. He was originally indicted, on March 19, with just one count of assault. By April 5, in a detention memo, DOJ described three different assaults. So DOJ was bound to supersede his initial indictment in any case. This superseding indictment charges him in six different assaults (I think I’ve bolded the ones that appeared in the April detention memo), the culmination of seven months of video review to understand his role.

It also might get Klein detained. Of the seven men who had already been charged, Stevens was released on arrest, McCaughey got released with a huge bond payment, and Judd was released after review. The government successfully fought to keep Quaglin and Morss detained, sustaining Quaglin’s detention on appeal.

Klein also fought successfully for release. Along the way, his attorneys pointed to the conduct of McCaughey and two other of his now co-defendants, claiming they were more dangerous.

Contrast these cases, and the allegations against Mr. Klein, with others detained pretrial and alleged to have engaged in far more egregious conduct including having pinned an officer between a door and a riot shield (McCaughey – 21-cr-00040); violently assaulting an officer in the side of the neck with a riot shield and spraying chemical irritant directly into the eyes of an officer (Quaglin – 21-mj-00355); repeatedly throwing objects, including a pole, a desk drawer, some type of pipe/metal rod, and a flagpole at officers (Jenkins – 21-cr-00245); lighting and throwing fireworks at officers (Judd – 21-mj-00334), and striking an officer so violently with a pole that it shatters on his riot shield (Palmer – 21-mj-00301).

John Bates released Klein (in an opinion that significantly lowered the bar on releasing violent assault defendants). And while the release itself was a defensible decision, Bates’ logic (in my opinion) was not. Bates treated Klein’s assault on the Capitol, as a State Department official, as a breach of trust, but also credited him with having held a security clearance, as if having a cleared individual attack his own government isn’t particularly dangerous (as the government successfully argued in Timothy Hale-Cusanelli’s case). Crazier still, Bates said that Klein’s assaults weren’t as bad as others because his objective was not to injure the police but instead to occupy the tunnel, the use of violence for political end.

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

[snip]

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

Klein is now the co-defendant of McCaughey, Judd, and Quaglin, charged in more assaults than McCaughey and Judd, which might make his own prior comparison with them backfire. More importantly, Klein’s inclusion in this larger indictment makes it clear how his actions cannot be viewed — as Bates did — as isolation actions, but were instead an integral part of some of the worst clashes of the day.

I have no idea whether DOJ will use this superseding indictment to move to get Klein’s release revoked. But he’s on the edge anyway: since his release, he has had several release violations for things like drinking enough wine at dinner with his mom that he decided to just stay over the night in violation of curfew. Thus far, John Bates hasn’t deemed Klein’s disrespect for the authority of the Court to be worth detaining him over. Trevor McFadden, under whom Klein’s case will be moved, has similarly been reluctant to revoke bail (though the most notable January 6 defendant where he did revoke bail, Brandon Fellows, is only charged with obstruction and may have mental health issues contributing to his refusal to follow release conditions). But he has far less patience with defendants who openly disdain the Court’s authority, as Klein has.

Last week, I noted that the government had made a record that they are entitled to invoke a terrorist enhancement for Scott Fairlamb at sentencing (his sentencing has been bumped to November to give the probation office time to finish the presentencing memo).

Like Fairlamb, all these defendants are also charged with obstruction. If proven at trial, that would mean a jury found there was an intent behind their serial, extended, coordinated assaults: to occupy the Capitol (as even Judge Bates described it) and in so doing to halt the vote count. These men are accused of violence in the service of preventing the peaceful transfer of power. And as such, I would be shocked if on this most spectacular of assault trials, DOJ didn’t also go after a terrorism enhancement.

In his testimony before the January 6 Commission, Jamie Raskin asked Hodges why he referred to terrorism or terrorists 15 times. Hodges read the legal definition of domestic terrorism:

Activities that involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any state, and, b, appear to be intended to intimidate or coerce a civilian population, or, to influence the policy of a government by intimidation or coercion.

If this omnibus case goes to trial it will demonstrate how all these assaults worked in concert to sustain an assault on our democracy for thirty-eight minutes. Officer Hodges may have his vindication at labeling these men terrorists.

The Cellebrite Wars: Moxie’s Stunt and Freddie’s Phone

On April 21, the guy behind the Signal encrypted texting service, Moxie Marlinspike, wrote a post exposing vulnerabilities in the interface of Cellebrite, the cell phone extraction program that FBI relies on.

Given the number of opportunities present, we found that it’s possible to execute arbitrary code on a Cellebrite machine simply by including a specially formatted but otherwise innocuous file in any app on a device that is subsequently plugged into Cellebrite and scanned. There are virtually no limits on the code that can be executed.

For example, by including a specially formatted but otherwise innocuous file in an app on a device that is then scanned by Cellebrite, it’s possible to execute code that modifies not just the Cellebrite report being created in that scan, but also all previous and future generated Cellebrite reports from all previously scanned devices and all future scanned devices in any arbitrary way (inserting or removing text, email, photos, contacts, files, or any other data), with no detectable timestamp changes or checksum failures. This could even be done at random, and would seriously call the data integrity of Cellebrite’s reports into question.

After telling Cellebrite to fuck off for integrating Signal exploitation into their offerings in about four different ways, Moxie announced that some Signal installs going forward would have such aesthetic sabotage built in in the future.

In completely unrelated news, upcoming versions of Signal will be periodically fetching files to place in app storage. These files are never used for anything inside Signal and never interact with Signal software or data, but they look nice, and aesthetics are important in software. Files will only be returned for accounts that have been active installs for some time already, and only probabilistically in low percentages based on phone number sharding. We have a few different versions of files that we think are aesthetically pleasing, and will iterate through those slowly over time. There is no other significance to these files.

As a Signal user, I’m thrilled that Moxie is trying to make it harder for FBI to exploit my phone. As someone who’d like FBI to hold the January 6 insurrectionists accountable, this stunt couldn’t have happened at a worse time, when the FBI was in the process of trying to exploit the devices of over 500 defendants in a violent assault on democracy.

Which brings us to Freddie Klein, the former Trump State Department official with family ties to Argentine fascists who was arrested for assault in conjunction with the insurrection.

Freddie wants his phone (and dash cam) back. Freddie was arrested on March 3 and his phone — which was plugged into his car charger when he was arrested — was exploited on March 12. Freddie’s attorney Stanley Woodward first asked verbally for the phone, and on May 6, prosecutors said they’d be happy to return Freddie’s phone as soon as he stipulated that the exploitation of it happened via reliable methods.

Thereafter, on May 6, 2021, the government advised that, “we would be happy to release Mr. Klein’s phone as evidence in the case provided that Mr. Klein is willing to agree to the attached stipulation. This stipulation was subsequently revised following discussions with the Office of the Federal Public Defender for the District of Columbia, although that office has not approved or, to the undersigned’s knowledge, accepted the stipulation as drafted. The stipulation provides, inter alia, that Mr. Klein agree that: “[t]he [digital] Images [of Mr. Klein’s phone] are accurate duplicates of the Digital Media and were created using reliable methods” and “[t]he Images of the Digital Media and/or any other copies are ‘admissible [into evidence] to the same extent as the original,’ within the meaning of Federal Rule of Evidence 1003.”

So now Freddie is moving formally to get it back, because his defense team wants the ability to inspect it forensically.

The government, however, maintains that absent that stipulation, they can’t return the phone. Not only might they need it to introduce the evidence against Freddie, but it’s possible the phone will have evidence implicating some of the other 500+ defendants, and the government wouldn’t be able to call Freddie as a witness against them to attest to the accuracy of the Cellebrite report.

The government doesn’t describe what evidence it thinks Freddie might have implicating others. But they note that some of the evidence they want to use at trial against him includes him bragging about appearing in a video from the riot via a Signal text.

After the filter team completed its review, the prosecution team began its review of the non-privileged and search warrant responsive contents of the defendant’s phone via the Cellebrite extraction report and has identified relevant material that the United States intends to introduce as evidence at trial. The identified evidence thus far includes location information on January 6, 2021, as well as messages exchanged by the defendant via the Signal application (“app”) regarding his presence at the U.S. Capitol.

The government then goes on to explain that some of the evidence they want to use is not available via other means (say, by serving a warrant on Facebook). They’re talking about Signal, of course.

It is also important to note that some of the evidence that has been discovered in the defendant’s phone is not available to the government through other means. For example, the United States has identified text messages sent by the defendant through the Signal app, in which Klein identifies himself in a video at the Capitol. Notably, Signal is a “state-of-the-art end-to-end encryption” app that “keeps your conversations secure.” See Why Use Signal, https://signal.org/en/ (last visited Jul 26, 2021). Signal advertises that even they cannot read messages or listen to calls, “and no one else can either.” Id. As Signal itself says, “Signal doesn’t have access to your messages; your chat list; your groups; your contacts; your stickers; your profile name or avatar; or even the GIFs you search for.” See https://signal.org/bigbrother/centralcalifornia-grand-jury/ (last visited Jul 26, 2021). Indeed, Signal has specifically asserted that “the broad set of personal information that is typically easy to retrieve in other apps simply doesn’t exist on Signal’s servers.” Id. This includes address of the users, their correspondence, and the name associated with each account. Id. Indeed, according to Signal, the only information that it maintains is the timestamps for when each account was created and the date that each account last connected to the Signal service. Id. Thus, the messages sent by the defendant via the Signal app are only available to the government through the defendant’s phone and the Cellebrite extraction of that phone.

To be clear: the government is generally making defendants stipulate to the accuracy of forensic reports before returning any devices (though I wonder if they have done so with Stewart Rhodes, who reportedly shared his phone and already got it back). For example, the government refused to return Vitali Gossjankowski’s laptop, which has special software tied to his hearing impairment on it, without such a stipulation. So it’s not just Freddie’s use of Signal that has led them to refuse to return the phone.

Moreover, the concern about introducing evidence against others is real. A number of prosecutors’ recent investigative moves (both specific arrests and the way they’re wiring some plea deals to others) are best explained by the difficulty posed by a crime in which hundreds of the criminals, many of them misdemeanor defendants, have important evidence against others.

But this is the use case for which Moxie’s stunt presented the real concern: someone whose phone has evidence needed to rebut his claims that the videos showing him violently attacking the Capitol aren’t really him. And that’s before any special protections DOJ started taking after Moxie promised future sabotage in a tiny percentage of Signal installs.

The Hundred-Plus January 6 Defendants Accused of Assault

Yesterday, Merrick Garland marked two milestones in the January 6 investigation: 500 arrests, of which 100 were for assaulting police.

The Department of Justice reached several benchmarks in our investigation into the January 6th attack on the U.S. Capitol.

We have now crossed the threshold of 500 arrests, including the 100th arrest of a defendant on charges of assaulting a federal law enforcement officer. This morning, we arrested our first defendant on charges that include assaulting a member of the news media.

I could not be more proud of the extraordinary effort by investigators and prosecutors to hold accountable those who engaged in criminal acts that day. Particular credit goes to those serving as prosecutors and agents in Washington, D.C., as well as those in FBI field offices and U.S. Attorney’s Offices across the country, and with the Department’s National Security Division.

Our efforts to bring criminal charges are not possible without the continued assistance of the American public. To date, we have received their more than 200,000 digital tips.

I assure the American people that the Department of Justice will continue to follow the facts in this case and charge what the evidence supports to hold all January 6th perpetrators accountable.

I’ve been tracking the charged assaults (and a few related crimes). Here’s my list, which includes several people who really resisted arrest (but got charged under 18 USC 111). Note this list also tracks how the FBI identified the defendant, which shows that FBI has been relying on “Be On the Lookout” photos to identify assailants. As of right now, all these defendants have pled NOT guilty and are assumed innocent. [fixed typo]

As you read this list, keep in mind that FBI has released 410 BOLOs, most for assault, and well over 200 of those people remain at large. And of course, the FBI has not yet apprehended the pipe bomber.

  1. Daniel Page Adams, whose arrest affidavit describes engaging in a “direct struggle with [unnamed] law enforcement officers” (his cousin, Cody Connell, described the exchange as a “civil war”). Tip SM
  2. Zachary Alam, who pushed cops around as he was trying to break into the Speaker’s Lobby. BOLO 79
  3. Michael Alberts, who was arrested for gun possession the day of the riot but who had an assault charge added in a superseding indictment
  4. Wilmar Alvarado, who pushed cops in the mob trying to get in from the West Terrace. BOLO 65
  5. John Anderson, who after taking two riot shields from cops, needed their assistance after getting maced.
  6. Thomas Ballard, who used a police baton and threw a table in the Lower West Terrace. BOLO 325
  7. Logan Barnhart, who pulled one of the cops out of the Capitol.
  8. Craig Bingert, who allegedly helped shove cops with a barricade. BOLO 105
  9. Brian Glenn Bingham, who scuffled with two cops after Ashli Babbitt got shot. BOLO 93
  10. David Blair, who poked a cop with a lacrosse stick with a Confederate flag attached. Onsite arrest
  11. Michael Brock, who hit two cops with a four-foot rod. BOLO 319
  12. Nicholas James Brockhoff, who sprayed a fire extinguisher from the Terrace at cops. BOLO 255
  13. Benjamin Burlew, who participated in a 6-person assault on an AP journalist.
  14. Jamie Buteau, whom surveillance video showed throwing chairs at cops several times in the Capitol. (BOLO 188)
  15. Alan Byerly, who allegedly beat up a cop and then beat up an AP cameraman. BOLO 193
  16. Daniel Caldwell, who was filmed macing 15 cops. SM
  17. Steven Cappuccio, who pulled Daniel Hodge’s gas mask and beat him with his own baton. BOLO 123
  18. Matthew Caspel, who was filmed charging the National Guard. Tip SM
  19. William Chrestman, who is accused of threatening a cop as Proud Boys pushed their way past the original line of defense (charged with 18 USC 115). NM
  20. Reed Christensen, who was videotaped swinging at cops. BOLO and video 191
  21. Luke Coffee, who was videotaped beating several cops with a crutch. Tip SM and BOLO 108
  22. Cody Connell, who with his cousin was in a direct confrontation with cops. Tip SM
  23. Lance Copeland, who admitted to fighting with cops on the barricades.
  24. Matthew Council, who was arresting for shoving cops the day of the riot.
  25. Kevin Creek, who was filmed hitting and kicking officers on the West Terrace. BOLO 296
  26. Bruno Cua, who was filmed shoving a cop to be able to get into the Senate. Tip LE
  27. Matthew DaSilva, who fought over shields with cops in the Lower West Terrace. BOLO 230
  28. James Davis, the Proud Boy with a big stick who charged some cops.
  29. Nathan DeGrave, whom security cameras caught threatening to fight cops. Network Sandlin
  30. David Dempsey, a Proud Boy with a history of assaulting anti-Trump protestors who used a crutch to assault police in the Tunnel. Sedition Hunters
  31. Robert Dennis, alleged to have assaulted officer JS on the terrace
  32. Josh Doolin, who is part of Johnny Pollack’s cell that assaulted multiple cops. Network Pollack
  33. Michael Eckerman, who pushed an officer down a small flight of stairs, thereby opening a new hallyway. Tip anon
  34. Daniel Egdvedt, a large man who took swipes and grabbed at several officers as they tried to remove him from the Capitol. BOLO 76
  35. Scott Fairlamb, who was caught in multiple videos shoving and punching officers (one who whom is identified but not named); Cori Bush has said she was threatened by him last summer. Tips, including SM
  36. Joseph Fischer, a cop who got in a tussle with another cop. Tip SM
  37. Kyle Fitzsimons, who charged officers guarding the doorway of the Capitol. BOLO 139
  38. Michael Foy, a former Marine who was caught on multiple videos beating multiple cops with a hockey stick. Tip SM
  39. Kevin Galetto, who allegedly knocked an MPD officer to the ground in the Tunnel. BOLO 146
  40. Robert Giswein, who appears to have ties to the Proud Boys and used a bat to beat cops. NM
  41. Vitali Gossjankowski, who was interviewed about whether he had tased MPD officer Michael Fanone, causing a heart attack; instead he was charged with assaulting CPD officer MM. BOLO 98 — with a second one mentioned
  42. Daniel Gray, who got into several confrontations with officers inside the Capitol, including knocking down a female cop. Tip SM
  43. Brian Gunderson, charged with assault while committing a felony on a superseding.
  44. Alex Harkrider, who after being filmed fighting with police at the door of the Capitol, posted a picture with a crowbar labeled, “weapon;” he was charged with abetting Ryan Nichols’ assault. Tip SM
  45. Richard Harris, who assaulted a journalist in Oregon weeks before threatening cops, Nancy Pelosi, and Mike Pence during the riot.
  46. Uliyahu Hayah, who was in the vicinity of Ashli Babbitt’s death and shoved a cop on his way out. NM
  47. Albuquerque Cosper Head, accused of assaulting Michael Fanone.
  48. Dillon Herrington, who threw a 4X4 at cops, then threw a barrier. Sedition Hunters picture
  49. Joseph Hutchison, who is part of Johnny Pollack’s group, but who was caught via his own BOLO. BOLO 320
  50. Emanuel Jackson, whom videos caught punching one officer, and others show beating multiple officers with a metal baseball bat. BOLO 31
  51. Shane Jenkins, alleged to have used a crowbar to break in a window, later threw things including a pole, a desk drawer, and a flagpole at cops.
  52. Douglas Jensen, the QAnon who chased Officer Goodman up the stairs, got charged with resisting him. NM, BOLO 10
  53. Taylor Johnatakis, charged with 111.
  54. Paul Johnson, who carried a bullhorn and was in the initial assault from the west side with Ryan Samsel. BOLO 49
  55. David Judd, who threw a firecracker at cops in the tunnel. Tip and BOLO 137
  56. Julian Elie Khater, who allegedly sprayed Brian Sicknick and two others with very powerful bear spray. BOLO 190
  57. Freddie Klein, the State Department employee who fought with three different officers while trying to break through police lines. BOLO 136
  58. Edward Jacob Lang, who identified himself in a screen cap of a violent mob attacking cops and who was filmed slamming a riot shield into police and later fighting them with a red baseball bat. Tip SM
  59. Nicholas Languerand, accused of throwing a bollard, a can of pepper spray, and a stick at cops in the Lower West Tunnel.
  60. Samuel Lazar, who was caught on video spraying chemicals and cops and claimed to be the tip of the spear.
  61. Mark Jefferson Leffingwell, whom a Capitol Police officer described in an affidavit punching him. Onsite arrest
  62. Joshua Lollar, who described fighting cops and was caught in pictures showing himself in the front lines confronting cops. Tip SM
  63. Michael Lopatic, who allegedly assaulted some cops with Stager and Sabol, then took a BWC to hide the assault. BOLO 133
  64. Clifford Mackrell, who attempted to strip an officer’s gas mask after someone else sprayed bear spray. BOLO 124
  65. Logan McAbee, who was part of a gang assault on a cop pulled out of the Capitol.
  66. Patrick Edward McCaughey III, who was filmed crushing MPD Officer Daniel Hodges in one of the doors to the Capitol. BOLO 62
  67. James McGrew, who shoved some cops in the Rotunda then bared his King James belly tattoo, Tip Network
  68. Sean McHugh, accused of spraying some yellow substance at cops and using a sign as a battering ram, BOLO 59
  69. Jeffrey McKellop, a former Special Forces guy accused of assaulting 4 cops, including one by using a flagpole as a spear. BOLO 215
  70. David Mehaffie, who directed the assaults in the Tunnel
  71. Jonathan Mellis, who used some kind of stick to try to jab and beat police. Tip SM
  72. Jalise Middleton
  73. Mark Middleton, the Middletons fought the cops outside the West entrance to the Capitol. BWC
  74. Garret Miller, who pushed back at cops and then threatened both AOC and the cop who killed Ashli Babbit. Tip LE
  75. Matthew Ryan Miller, who released fire extinguisher in close quarters. Tip SM
  76. Jordan Mink, who used a pole to assault the police.
  77. Brian Mock, who kicked a cop when he was down and bragged about it. BOLO and Tip SM
  78. Patrick Montgomery was charged with assault against MPD officer DJ in a follow-up indictment.
  79. Robert Morss, who in addition to tussling with a cop, was a key organizer of shield walls in the Tunnel. BOLO 147
  80. Aaron Mostofsky, possibly for stripping a cop of his or her armored vest and riot shield. NM
  81. Clayton Mullins, alleged to be part of the mob that assaulted AW and two other police. Tip
  82. Jonathan Munafo, alleged to have fought with cops in two different locations, including punching one in the Lower West Terrace. (BOLO and video 170)
  83. Ryan Nichols, who was filmed wielding a crowbar and yelling, “This is not a peaceful protest,” then spraying pepper spray against police trying to prevent entry to the Capitol. Tip SM
  84. Grady Owens, who allegedly hit a cop in the head on the Mall with a skateboard, as he was heading to reinforce the Capitol. BOLO 109
  85. Jason Owens, accused of assaulting a second officer after his son attacked one with a skateboard. Network Owens
  86. Jose Padilla, who shoved cops at a barricade, then helped use a Donald Trump sign as a battering ram against them. Tip SM
  87. Robert Palmer, who sprayed cops with a fire extinguisher then threw it at them.
  88. Michael Perkins, who is part of the Pollack group. Network Pollack
  89. Dominic Pezzola, a Proud Boy who stole a shield from cops. NM and BOLO 43
  90. Johnny Pollack, who serially assaulted cops and then went on the lam. BOLO 144
  91. Olivia Pollack, Johnny’s sister who also allegedly punched a cop. Pollack network
  92. Mark Ponder, filmed repeatedly attacking cops with poles.
  93. Christopher Quaglin, accused of assaulting cops both at the initial breach of the barriers and later in the Lower West Terrace.
  94. Stephen Chase Randolph, who shoved cops at the initial barricade and later bragged about a female cop’s head bouncing off the pavement. BOLO 168
  95. Daniel Rodriguez, whom videos appear to show tasing Michael Fanone. Sedition Hunter-based reporting
  96. Edward Rodriguez, who sprayed pepper spray at cops while wearing a suit. Sedition Hunter-based reporting
  97. Greg Rubeacker, Tip SM
  98. Jeffrey Sabol, helped drag a cop from the Capitol and beat him while prone. LE arrest (erratic driving)
  99. Ryan Samsel, who set off the riot by giving a cop a concussion; he appears to have coordinated with Joe Biggs. BOLO 51 (though not IDed by BOLO)
  100. Salvador Sandoval, Jr, who went to the insurrection with his mother and shoved some cops.
  101. Robert Sanford, who was filmed hitting Capitol Police Officer William Young on the head with a fire extinguisher. Tip NM
  102. Ronald Sandlin, who tried to wrestle cops to keep the door to the Senate open. MPD tip
  103. Troy Sargent, who appears to have punched some cops holding a line. Tip SM
  104. Peter Schwartz, a felon who maced several cops. Tip NM (BOLO 120)
  105. Dan Scott, AKA Milkshake, who shoved some cops in the initial assault. Network.
  106. Christian Secor, a UCLA self-described fascist who helped shove through some cops to break into the Capitol and then sat in the Senate chamber. Tip NM
  107. DJ Shalvey. The details of the assault charged against Shalvey are not public, but he did get charged for lying about it to the FBI.
  108. Barton Wade Shively, who pushed and shoved some police trying to get into the Capitol, punched another, then struck one of those same cops later and kicked another. BOLO 55
  109. Thomas Sibick, accused of being among a group of men who attacked Michael Fanone and stole his badge.
  110. Geoffrey Sills, alleged to have used both a pole and a baton in several assaults on cops in the tunnel.
  111. Audrey Southard-Rumsey, the talented singer deemed one of the main agitators in the Statuary Hall Connector. Tip SM
  112. Peter Francis Stager, who was involved in beating a prone cop with a flagpole. Tip SM
  113. Ezekial Stecher, whom videos showed pushing in the Lower West Tunnel.
  114. Tristan Stevens, who fought cops with a shield and baton. Video
  115. Isaac Sturgeon, who is accused of using a barricade to attack some officers.
  116. Andrew Taake, who is accused to have used a metal whip and pepper spray against the cops. Tip SM
  117. George Pierre Tanios, who allegedly conspired with Julian Khater to attack Brian Sicknick and two other cops. BOLO 254
  118. Kenneth Joseph Owen Thomas, who organized a MAGA Caravan from AL and then selfied himself attacking cops. BOLO 214
  119. Christopher Warnagiris, the Marine Major who fought to keep the East door open. BOLO 241
  120. Thomas Webster, who attacked a cop with a flagpole. BOLO 145
  121. Wade Whitten, accused of dragging AW down the steps of the Capitol and hitting him with a crutch. BOLO 130
  122. Ricky Willden, who allegedly sprayed cops with a chemical.
  123. Duke Wilson, accused of assaulting several officers in the Lower West Tunnel. BOLO 87
  124. Jason Woods, who allegedly used the same tripping attack on a female cop and a cameraman. BOLO 238
  125. Christopher Worrell, a Proud Boy who apparently sprayed pepper spray at a line of police.
  126. Kyle Young, accused of attacking Michael Fanone and another officer, and stealing Fanone’s weapon.

In [Legal] Defense of the Nazi

The biggest known investigative fuck-up in the January 6 investigation thus far was when the FBI raided the home of Marilyn and Paul Hueper believing that Marilyn was a woman that the FBI suspects, based off surveillance video, may have been part of stealing Nancy Pelosi’s laptop. The Hueper’s claims about their actions on January 6 don’t seem to be entirely forthright, but Marilyn has made a solid case that the FBI mistook her for the woman in question.

I think the FBI did have probable cause for that search, but I also think the FBI did not use available tools — most notably the Google and GeoFence warrants they’ve used in many other cases — that should have been able to exclude Marilyn as the suspect.

I think it likely that DOJ has made an error, of another sort, with Nazi sympathizer Timothy Hale-Cusanelli, detaining him for four months based off a mistaken belief he played a more important role in January 6 violence than he did.

Hale-Cusanelli was arrested on January 15, three days after a co-worker of his, who was already an NCIS informant, alerted the FBI that Hale-Cusanelli took part in the riots and had, in the past, espoused fairly extreme white supremacist views. On January 14, the informant recorded Hale-Cusanelli describing giving hand signals to the mob and taking a flag that Hale-Cusanelli described as a “murder weapon” to destroy.

Hale-Cusanelli’s arrest warrant, which charged him with the misdemeanor trespassing charges everyone gets charged with along with a civil disorder charge, included no video from the day of the attack. When the government indicted him, they added obstruction charges and abetting.

When the FBI arrested Hale-Cusanelli, he admitted in an interview that he gave hand and voice signals — which could be no more than waving people forward — to encourage others to “advance” past cops. But the government’s primary basis to keep him jailed, when they first succeeded in doing so back in January, seems to have been that, once you cut him off from the military network he worked in as a Navy contractor, he was bound to turn to war.

Releasing Defendant from custody will only reinforce his belief that his cause is just. Given his impending debarment from Naval Weapons Station Earle, and his potential Administrative Separation from the U.S. Army Reserve, Defendant’s release will likely leave him with nowhere to go and nothing to do except pursue his fantasy of participating in a civil war. If nothing else, the events of January 6, 2021, have exposed the size and determination of right-wing fringe groups in the United States, and their willingness to place themselves and others in danger to further their political ideology. Releasing Defendant to rejoin their fold and plan their next attack poses a potentially catastrophic risk of danger to the community.

When they made a more substantive (and successful) argument he should remain detained, they focused on two things: his choice of a third party guardian was also an extremist who had helped him try to game reporting from the Navy on his extremism, and his extremism itself, including that he groomed to look like Hitler.

They also argued that Hale-Cusanelli poses a threat to the informant who IDed him.

Hale-Cusanelli is appealing his detention. But both he and his attorney, Jonathan Zucker, are getting fed up. Last week, Zucker submitted a motion asking to be replaced, but also claiming that he has received nothing in discovery about what Hale-Cusanelli did at the Capitol.

The parties were last before the court on May 12, 2021. At that time the defense expressed concern to the court regarding the paucity of discovery in this case. To date the prosecution has disclosed the defendant’s custodial interview, a surreptitiously recorded conversation between the defendant and a cooperating witness who was wearing a recording device provided by law enforcement, two portions of text messages between the defendant and two other civilians. The prosecution has provided nothing else, particularly no evidence regarding what defendant did on January 6 either outside or inside the Capitol. Nor any other evidence regarding the defendant’s activity in relation to the charged offenses. 1

1 Defendant advises that other defendants have disclosed to him that other defendants indicated they received discovery of recordings from inside the Capitol where defendant has been seen peacefully walking in the hallways.

Yesterday, the government responded. AUSA Kathryn Fifield claimed that most of what Zucker had said was not accurate.

The bulk of Defendant’s representations to the Court regarding discovery—both in terms of what they have received and government’s response to their requests—are not accurate. To date, the government has provided the most substantial portions of the government’s evidence. That includes the CHS recordings in which Defendant makes substantial admissions regarding his criminal conduct on January 6, Defendant’s custodial interview in which Defendant makes substantial admissions regarding his criminal conduct on January 6, and a partial extraction of Defendant’s cellular phone. The partial extraction includes the extraction report and the native files, including chats, videos, and photos. Defense counsel has confirmed with the undersigned that they have access to these materials on USAfx. Further, the government separately provided Capitol CCTV video capturing Defendant inside the Capitol building on January 6 and reports of interviews conducted by NCIS. Defense counsel confirmed receipt of these materials with prior government counsel. Thus, Defendant is already in possession of the evidence most relevant to detention proceedings and to Defendant’s conduct on January 6, and has been in receipt of these materials since before the last status hearing on May 12, 2021.

She described how, because of the technical issues that occur every time the government shares large volume electronic files with defense attorneys, Zucker still doesn’t have the full content of Hale-Cusanelli’s phone.

But the accompanying discovery summary in fact seems to confirm what Zucker has said: he has received no or next to no surveillance video of his client in the Capitol, and what he has gotten appears to pertain primarily to a different person he represents (Zucker also represents Jerod Wade Hughes and Thomas Webster, and did represent Dominic Pezzola for a period).

Video recording of custodial interview of Defendant Hale-Cusanelli produced via USAfx on February 22, 2021.

Bulk report of interviews conducted by NCIS produced via email on March 7, 2021.

Report of interview conducted by NCIS of Sergeant John Getz produced via email on March 8, 2021.

Partial extraction of Apple iPhone – includes Cellebrite Extraction Report (PDF 1209 pages) and native files most relevant to Defendant’s detention proceedings and conduct on January 6, 2021. Produced via USAfx on March 11, 2021.

Capitol Surveillance CCTV produced via USAfx in connection with another defendant represented by defense counsel on March 31, 2021. Upon information and belief, you confirmed receipt of this video with prior government counsel. Reproduced in the USAfx folder for this case on May 25, 2021. The Government has designated these files Highly Sensitive under the Protective Order issued in this case.

CHS video and audio recordings produced via USAfx on May 7, 2021. The Government has designated these files Sensitive under the Protective Order issued in this case. Cellebrite Extraction Report (PDF 63073 pgs): iPhone 6s (A1633), MSISDN 7328105132, ISMI 310120163205040. Produced via USAfx on May 7, 2021.

Full extraction of Defendant’s Apple iPhone produced on encrypted zip drive on or about April 28, 2021, on Blu Ray discs on or about April 28, 2021, and on defense counsel’s hard drive on or about May 25, 2021.

One of the main images in an earlier detention memo from inside the Capitol is indexed to Pezzola, so that may be the discovery in question.

This guy has absolutely loathsome views. But they are views protected by the First Amendment — and also views shared by a goodly percentage of the other January 6 defendants, many of them out on personal recognizance. The others who, like Hale-Cusanelli, were of particular concern to the government because they held clearance on January 6 also engaged in physical assault — and Freddie Klein was released even after that. As I noted, the government spent two months confirming details of active duty Marine, Major Christopher Warnagiris’ far more important conduct from the day before arresting him, and then let him out on personal recognizance.

While the government has provided evidence that he did intend to obstruct the vote count, nothing in his conduct from the day substantiates the civil disorder challenge. Yesterday, Fifield asked for two more months to find that evidence.

This seems like a mistake that the government is simply doubling down on. But if you haven’t found more compelling evidence after four months, what are the chances you will?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

FISA Judges January 6 cases

Lamberth:

Kollar-Kotelly:

Bates:

Walton:

Hogan:

Boasberg:

Contreras:

Updated List of January 6 Assault Defendants

Back in February, I did a post listing the January 6 defendants charged with one or another type of assault against police. I’ve been updating the post (and will update this one), but that one had gotten out of date and I’ve spent much of the morning doing housekeeping on my own tracking of the January 6 defendants so I wanted to repost that list.

Since February, some known assailants have been charged:

  • Julian Khater and George Tanios in the assault on Brian Sicknick suspected of playing a role in his death
  • Albuquerque Cosper Head, Thomas Sibick, and Kyle Young — charged together — in an attack on Michael Fanone and, separately, Daniel Rodriguez for tasing him
  • An expanding group — currently including Jeffrey Sabol, Peter Stager, Michael Lopatic, Clayton Mullins, and Jack Whitton — accused of dragging a cop into the crowd and beating him with various weapons and attacking another, thwarting attempts to help Rosanne Boyland, who was dying nearby

In addition, more militia defendants are being accused of assault, including Proud Boys Christopher Quaglin and Christopher Worrell. Last week, Oath Keeper Jon Schaffer entered a cooperation agreement with the government, probably staving off an assault charge tied to his use of bear spray, and a recent detention motion claims Joshua James riled up assaults on cops as well.

Then there are the rather spectacular cases of Trump State Department official Freddie Klein and former Green Beret Jeffrey McKellop, who’ve been charged with assault.

Yet even while the FBI rounds up more of the people charged with some of the identifiable assaults from January 6, the great majority of BOLOs (Be On the Lookout for — basically, requests for tips) released by the FBI, currently numbering 360, are assault suspects who have yet to be identified. So there may be around 200 more people who could be charged with assault.

And, of course, the pipe bomber remains at large, in spite of a $100,000 reward for information leading to that person’s arrest.

  1. Daniel Page Adams, whose arrest affidavit describes engaging in a “direct struggle with [unnamed] law enforcement officers” (his cousin, Cody Connell, described the exchange as a “civil war”). Tip SM
  2. Zachary Alam, who pushed cops around as he was trying to break into the Speaker’s Lobby. BOLO 79
  3. Wilmar Alvarado, who pushed cops in the mob trying to get in from the West Terrace. BOLO 65
  4. John Anderson, who after taking two riot shields from cops, needed their assistance after getting maced.
  5. Craig Bingert, who allegedly helped shove cops with a barricade. BOLO 105
  6. Brian Glenn Bingham, who scuffled with two cops after Ashli Babbitt got shot. BOLO 93
  7. David Blair, who poked a cop with a lacrosse stick with a Confederate flag attached. Onsite arrest
  8. Nicholas James Brockhoff, who sprayed a fire extinguisher from the Terrace at cops. BOLO 255
  9. Jamie Buteau, whom surveillance video showed throwing chairs at cops several times in the Capitol. (BOLO 188)
  10. Daniel Caldwell, who was filmed macing 15 cops. SM
  11. Matthew Caspel, who was filmed charging the National Guard. Tip SM
  12. William Chrestman, who is accused of threatening a cop as Proud Boys pushed their way past the original line of defense (charged with 18 USC 115). NM
  13. Reed Christensen, who was videotaped swinging at cops. BOLO and video 191
  14. Luke Coffee, who was videotaped beating several cops with a crutch. Tip SM and BOLO 108
  15. Cody Connell, who with his cousin was in a direct confrontation with cops. Tip SM
  16. Lance Copeland, who admitted to fighting with cops on the barricades.
  17. Christian Cortez, who yelled at cops behind a door.
  18. Matthew Council, who was arresting for shoving cops the day of the riot.
  19. Kevin Creek, who was filmed hitting and kicking officers on the West Terrace. BOLO 296
  20. Bruno Cua, who was filmed shoving a cop to be able to get into the Senate. Tip LE
  21. Nathan DeGrave, whom security cameras caught threatening to fight cops. Network Sandlin
  22. Daniel Egdvedt, a large man who took swipes and grabbed at several officers as they tried to remove him from the Capitol. BOLO 76
  23. Scott Fairlamb, who was caught in multiple videos shoving and punching officers (one who whom is identified but not named); Cori Bush has said she was threatened by him last summer. Tips, including SM
  24. Joseph Fischer, a cop who got in a tussle with another cop. Tip SM
  25. Kyle Fitzsimons, who charged officers guarding the doorway of the Capitol. BOLO 139
  26. Michael Foy, a former Marine who was caught on multiple videos beating multiple cops with a hockey stick. Tip SM
  27. Kevin Galetto, who allegedly knocked an MPD officer to the ground in the Tunnel. BOLO 146
  28. Robert Giswein, who appears to have ties to the Proud Boys and used a bat to beat cops. NM
  29. Vitali Gossjankowski, who was interviewed about whether he had tased MPD officer Michael Fanone, causing a heart attack; instead he was charged with assaulting CPD officer MM. BOLO 98 — with a second one mentioned
  30. Daniel Gray, who got into several confrontations with officers inside the Capitol, including knocking down a female cop. Tip SM
  31. Bryan Gunderson, charged with assault while committing a felony on a superseding.
  32. Alex Harkrider, who after being filmed fighting with police at the door of the Capitol, posted a picture with a crowbar labeled, “weapon;” he was charged with abetting Ryan Nichols’ assault. Tip SM
  33. Richard Harris, who assaulted a journalist in Oregon weeks before threatening cops, Nancy Pelosi, and Mike Pence during the riot.
  34. Albuquerque Cosper Head, accused of assaulting Michael Fanone.
  35. Dillon Herrington, who threw a 4X4 at cops, then threw a barrier. Sedition Hunters picture
  36. Emanuel Jackson, whom videos caught punching one officer, and others show beating multiple officers with a metal baseball bat. BOLO 31
  37. Shane Jenkins, alleged to have used a crowbar to break in a window, later threw things including a pole, a desk drawer, and a flagpole at cops.
  38. Douglas Jensen, the QAnon who chased Officer Goodman up the stairs, got charged with resisting him. NM, BOLO 10
  39. Taylor Johnatakis, charged with 111.
  40. Paul Johnson, who carried a bullhorn and was in the initial assault from the west side with Ryan Samsel. BOLO 49
  41. Chad Jones, who used a Trump flag to break the glass in the Speaker’s Lobby door just before Ashli Babbitt was shot and may have intimidated three officers who were pursuing that group. Tip NM
  42. David Judd, who threw a firecracker at cops in the tunnel. Tip and BOLO 137
  43. Julian Elie Khater, who allegedly sprayed Brian Sicknick and two others with very powerful bear spray. BOLO 190
  44. Freddie Klein, the State Department employee who fought with three different officers while trying to break through police lines. BOLO 136
  45. Edward Jacob Lang, who identified himself in a screen cap of a violent mob attacking cops and who was filmed slamming a riot shield into police and later fighting them with a red baseball bat. Tip SM
  46. Nicholas Languerand, accused of throwing a bollar, a can of pepper spray, and a stick at cops in the Lower West Tunnel.
  47. Mark Jefferson Leffingwell, whom a Capitol Police officer described in an affidavit punching him. Onsite arrest
  48. Joshua Lollar, who described fighting cops and was caught in pictures showing himself in the front lines confronting cops. Tip SM
  49. Michael Lopatic, who allegedly assaulted some cops with Stager and Sabol, then took a BWC to hide the assault. BOLO 133
  50. Clifford Mackrell, who attempted to strip an officer’s gas mask after someone else sprayed bear spray. BOLO 124
  51. Patrick Edward McCaughey III, who was filmed crushing MPD Officer Daniel Hodges in one of the doors to the Capitol. BOLO 62
  52. James McGrew, who shoved some cops in the Rotunda then bared his King James belly tattoo, Tip Network
  53. Sean McHugh, accused of spraying some yellow substance at cops and using a sign as a battering ram, BOLO 59
  54. Jeffrey McKellop, a former Special Forces guy accused of assaulting 4 cops, including one by using a flagpole as a spear. BOLO 215
  55. Jonathan Mellis, who used some kind of stick to try to jab and beat police. Tip SM
  56. Jalise Middleton
  57. Mark Middleton, the Middletons fought the cops outside the West entrance to the Capitol. BWC
  58. Garret Miller, who pushed back at cops and then threatened both AOC and the cop who killed Ashli Babbit. Tip LE
  59. Matthew Ryan Miller, who released fire extinguisher in close quarters. Tip SM
  60. Jordan Mink, who used a pole to assault the police.
  61. Brian Mock, who kicked a cop when he was down and bragged about it. BOLO and Tip SM
  62. Patrick Montgomery was charged with assault against MPD officer DJ in a follow-up indictment.
  63. Robert Morss, who in addition to tussling with a cop, was a key organizer of shield walls in the Tunnel. BOLO 147
  64. Aaron Mostofsky, possibly for stripping a cop of his or her armored vest and riot shield. NM
  65. Clayton Mullins, alleged to be part of the mob that assaulted AW and two other police. Tip
  66. Jonathan Munafo, alleged to have fought with cops in two different locations, including punching one in the Lower West Terrace. (BOLO and video 170)
  67. Ryan Nichols, who was filmed wielding a crowbar and yelling, “This is not a peaceful protest,” then spraying pepper spray against police trying to prevent entry to the Capitol. Tip SM
  68. Grady Owens, who allegedly hit a cop in the head on the Mall with a skateboard, as he was heading to reinforce the Capitol. BOLO 109
  69. Jason Owens, accused of assaulting a second officer after his son attacked one with a skateboard. Network Owens
  70. Jose Padilla, who shoved cops at a barricade, then helped use a Donald Trump sign as a battering ram against them. Tip SM
  71. Robert Palmer, who sprayed cops with a fire extinguisher then threw it at them.
  72. Dominic Pezzola, a Proud Boy who stole a shield from cops. NM (BOLO 43)
  73. Mark Ponder, filmed repeatedly attacking cops with poles.
  74. Christopher Quaglin, accused of assaulting cops both at the initial breach of the barriers and later in the Lower West Terrace.
  75. Stephen Chase Randolph, who shoved cops at the initial barricade and later bragged about a female cop’s head bouncing off the pavement. BOLO 168
  76. Daniel Rodriguez, whom videos appear to show tasing Michael Fanone. Sedition Hunter-based reporting
  77. Greg Rubeacker, Tip SM
  78. Jeffrey Sabol, helped drag a cop from the Capitol and beat him while prone. LE arrest (erratic driving)
  79. Ryan Samsel, who set off the riot by giving a cop a concussion; he appears to have coordinated with Joe Biggs. BOLO 51 (though not IDed by BOLO)
  80. Salvador Sandoval, Jr, who went to the insurrection with his mother and shoved some cops.
  81. Robert Sanford, who was filmed hitting Capitol Police Officer William Young on the head with a fire extinguisher. Tip NM
  82. Ronald Sandlin, who tried to wrestle cops to keep the door to the Senate open. MPD tip
  83. Troy Sargent, who appears to have punched some cops holding a line. Tip SM
  84. Peter Schwartz, a felon who maced several cops. Tip NM (BOLO 120)
  85. Dan Scott, AKA Milkshake, who shoved some cops in the initial assault. Network.
  86. Christian Secor, a UCLA self-described fascist who helped shove through some cops to break into the Capitol and then sat in the Senate chamber. Tip NM
  87. DJ Shalvey. The details of the assault charged against Shalvey are not public, but he did get charged for lying about it to the FBI.
  88. Barton Wade Shively, who pushed and shoved some police trying to get into the Capitol, punched another, then struck one of those same cops later and kicked another. BOLO 55
  89. Thomas Sibick, accused of being among a group of men who attacked Michael Fanone and stole his badge.
  90. Geoffrey Sills, alleged to have used both a pole and a baton in several assaults on cops in the tunnel.
  91. Audrey Southard-Rumsey, the talented singer deemed one of the main agitators in the Statuary Hall Connector. Tip SM
  92. Peter Francis Stager, who was involved in beating a prone cop with a flagpole. Tip SM
  93. Ezekial Stecher, whom videos showed pushing in the Lower West Tunnel.
  94. Tristan Stevens, who fought cops with a shield and baton. Video
  95. Isaac Sturgeon, who is accused of using a barricade to attack some officers.
  96. George Pierre Tanios, who allegedly conspired with Julian Khater to attack Brian Sicknick and two other cops. BOLO 254
  97. Kenneth Joseph Owen Thomas, who organized a MAGA Caravan from AL and then selfied himself attacking cops. BOLO 214
  98. Christopher Warnagiris, the Marine Major who fought to keep the East door open. BOLO 241
  99. Thomas Webster, who attacked a cop with a flagpole. BOLO 145
  100. Wade Whitten, accused of dragging AW down the steps of the Capitol and hitting him with a crutch. BOLO 130
  101. Duke Wilson, accused of assaulting several officers in the Lower West Tunnel. BOLO 87
  102. Jason Woods, who allegedly used the same tripping attack on a female cop and a cameraman. BOLO 238
  103. Christopher Worrell, a Proud Boy who apparently sprayed pepper spray at a line of police.
  104. Kyle Young, accused of attacking Michael Fanone and another officer, and stealing Fanone’s weapon.