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Where to Look (or Not) for Signs of Life in Rule of Law

According to the court schedule for this week, January 6 defendants Stacie and John Getsinger will plead guilty on Thursday, no doubt to misdemeanor trespassing. On the surface, their guilty plea will likely resemble those of the dozens of other January 6 misdemeanor pleas that have gone before them, and that may be all it is.

But, along with a handful of others (Adam Johnson and Justin McAuliffe, who both pled guilty last week, are two other examples), these pleas may hint at what kind of larger underlying case DOJ is building. That’s because the Getsingers are witnesses to an important detail about the way January 6 worked: that Alex Jones, whom Trump had put in charge of leading mobs to the Capitol, likewise induced them to go to the top of the East steps of the Capitol with a lie, the false claim that Trump would be speaking there. That’s what led a couple like the Getsingers, who otherwise would never have entered the Capitol, to do so.

This comes even as InfoWars personality Owen Shroyer’s attempts to dodge his own legal accountability have brought more focus on Jones’ actions, described as Person One in DOJ’s opposition to Shroyer’s attempt to dismiss his indictment.

When the body-camera individual asked if he could get Person One there, the officer stated, “Through the hole that you guys breached right there” (emphasis added). When the body-camera individual responded that he didn’t breach anything, the officer retorted, “Well, the whole group that was with you guys.” The officer then pointed again away from the Capitol Building toward the northeast, telling them to leave through the same hole he had just said other rioters had breached. An officer surrounded by people illegally on the Capitol Grounds dismissively waving them away from the Capitol Building and toward another area hundreds of others had already illegally breached does not amount to “telling [the defendant] that … police officers could use his help.”

[snip]

[T]he defendant forced his way to the top of Capitol Building’s east steps with Person One and others and led hundreds of other rioters in multiple “USA!” and “1776!” chants with his megaphone. Harkening to the last time Americans overthrew their government in a revolution while standing on the Capitol steps where elected representatives are certifying a Presidential Election you disagree with does not qualify as deescalation.

[snip]

The video shows the defendant on an elevated platform leading chants with his megaphone on the Capitol Grounds before his first interaction with law enforcement officers; it shows the body-camera individual repeatedly (and unsuccessfully) try to get Person One on the Capitol steps; it shows evidence that the defendant reasonably should have known he was somewhere he was not supposed to be, including by stepping near moved barriers and downed signs; and it shows officers repeatedly refer to the defendant’s group as part of the problem and the “breaches” of various police lines. In fact, at the end of the video, the body-camera individual took matters into his own hands after facing multiple rejections for permission. He turned to the group and asked, “Just get him up there? … But we know we might catch a bang or two.” That is not evidence that the defendant received explicit or implicit permission to go onto the Capitol steps. That is evidence that the defendant is guilty of the crimes he is charged with.

Every single time that Merrick Garland has been asked about the scope of the January 6 investigation, he has said his DOJ will follow the evidence where it leads. These details are tidbits of the evidence in question, visible tidbits that would be largely meaningless unless you understood how the Oath Keepers, Joe Biggs, and his former employer all converged on those East doors just before they were opened from inside.

None of these details — and others like them, such as Johnson’s description of the crowd’s response to Rudy Giuliani and Mo Brooks’ calls for violence — guarantee that Rudy and Brooks will be held responsible.

At the rally, JOHNSON listened to several speeches, including by former President Trump, Rudy Giuliani, and an unknown older member of Congress–the latter of whom JOHNSON heard stating that it was time for action and violence. In response to these comments, JOHNSON saw members of the crowd nodding their heads in agreement.

But if you don’t know these details, you don’t know even what is publicly available about the investigation.

I respect David Rothkopf. I share his concerns about the threat Trump poses to US democracy and the limited time before Republicans likely take control of the House and shut down efforts to guard democracy in the US.

But unlike him I know that the place to learn about DOJ’s January 6 investigation is not by asking Harry Litman or Barb McQuade or AG Gill or Lawrence Tribe or even Dahlia Lithwick — all of whom I respect greatly — how they feel about the general direction of the investigation, but instead to look at the actual records or reading the reports of people actually covering hearings, such as this crucial Josh Gerstein story about how prosecutors responded when Judge Carl Nichols (the former Clarence Thomas clerk who happens to be presiding over Steve Bannon’s case) asked if someone who did what Trump did could be charged with the same obstruction charge DOJ is using with the more serious defendants.

At a hearing on Monday for defendant Garret Miller of Richardson, Texas, Nichols made the first move toward a Trump analogy by asking a prosecutor whether the obstruction statute could have been violated by someone who simply “called Vice President Pence to seek to have him adjudge the certification in a particular way.” The judge also asked the prosecutor to assume the person trying to persuade Pence had the “appropriate mens rea,” or guilty mind, to be responsible for a crime.

Nichols made no specific mention of Trump, who appointed him to the bench, but the then-president was publicly and privately pressuring Pence in the days before the fateful Jan. 6 tally to decline to certify Joe Biden’s victory. Trump also enlisted other allies, including attorney John Eastman, to lean on Pence.

An attorney with the Justice Department Criminal Division, James Pearce, initially seemed to dismiss the idea that merely lobbying Pence to refuse to recognize the electoral result would amount to the crime of obstructing or attempting to obstruct an official proceeding.

“I don’t see how that gets you that,” Pearce told the judge.

However, Pearce quickly added that it might well be a crime if the person reaching out to Pence knew the vice president had an obligation under the Constitution to recognize the result.

“If that person does that knowing it is not an available argument [and is] asking the vice president to do something the individual knows is wrongful … one of the definitions of ‘corruptly’ is trying to get someone to violate a legal duty,” Pearce said.

I can’t tell you whether DOJ will get much further up the chain of responsibility for January 6; part of that necessarily depends on DOJ’s success at obtaining cooperation, of which only that of Oath Keepers has DOJ thus far disclosed. I can’t tell you what DOJ is doing behind the scenes in what Garland describes as “following the money.”

But I can tell you that columns like Rothkopf’s, which complain that Garland’s DOJ is not doing enough to hold Trump accountable while ignoring cases like the Tom Barrack prosecution and the Rudy Giuliani investigation that provide concrete evidence about the kinds of investigative steps Garland’s DOJ has been willing to pursue (the Rudy raid was likely among Lisa Monaco’s first major decisions), likely don’t make it any more likely that Garland will be able to act against the masterminds of January 6 any sooner.

A far better use of Rothkopf’s time and space than bitching that Garland has authorized John Durham’s funding request, for example …

We have seen that Garland is letting the highly politicized investigation of special prosecutor John Durham into the conduct of the Trump-Russia investigation continue (by continuing its funding). We therefore have the real prospect that those who sought to look into the Trump-Russia ties that both Mueller and Congressional investigations have demonstrated were real, unprecedented and dangerous might be prosecuted while those who actively sought the help of a foreign enemy to win an election will not be.

… Would be to ask Harry Litman and Barb McQuade and AG Gill and Lawrence Tribe and Dahlia Lithwick about the specific things that Durham has done — like failing to cut-and-paste with fidelity, relying on a Twitter feed for a key factual assertion, and using materiality arguments to skirt DOJ’s prohibition on publicly commenting on uncharged conduct — that put his prosecutions in violation of DOJ guidelines. Such questions would be readily accessible to all by reading just two indictments (as compared to the full dockets of 675 charged January 6 defendants), it would draw on the considerable expertise of the prosecutors he cited, and it might do something concrete to give Garland the political support he would need to force Durham to hew to DOJ guidelines.

Importantly, it may not be possible for DOJ to move quickly enough against Trump without violating due process (just as one example, the Project Veritas investigation could lead to incredibly damaging revelations about political spying targeting the Biden family, but it’s not entirely clear DOJ respected First Amendment protections).

Which means those with a platform would be better off defending the rule of law — selling independents and moderate Republicans on the import of the January 6 investigation — than whining that it is not working quickly enough.

Update: In his piece, Rothkopf complains, as well, that the only visible investigation into the people around Trump is coming from the January 6 Commission, not DOJ.

More troubling to me though is that the only reason we are hearing of any case being brought against Bannon as a senior coup plotter (or upper middle management in any case) is because Congress is investigating the events of Jan. 6. We have not heard a peep out of the Department of Justice about prosecuting those responsible for inciting, planning or funding the effort to undo the lawful transfer of presidential power to the man the American people elected, Joe Biden.

This morning, Adam Schiff went on CNN. Dana Bash asked him about Judge Amit Mehta’s focus on Donald Trump’s role in the insurrection in a sentencing last week. In response, Schiff described that, “I am concerned that there does not appear to be an investigation, unless it’s being done very quietly” into Trump’s call to Brad Raffensperger to demand he come up with just enough votes for Trump to win the state. But Schiff noted that, “this is not January 6 related — specifically, at least, to the violence of that day.”

Then Bash asked whether Schiff was saying he wanted Biden’s DOJ to be more aggressive. Schiff did not answer “yes.” Instead, he responded to a question about DOJ by talking about the January 6 Commission’s role in holding people accountable.

We are now trying to expose the full facts of the former President’s misconduct, as well as those around him. It is certainly possible that what we reveal in our investigation will inform the Justice Department of other facts that they may not yet be aware of yet. And so we will pursue our role in this, which is to expose the malefactors, to bring about legislation as a result of our investigation, to protect the country. But we will count on the Justice Department to play its role.

That is, when Bash asked specifically if DOJ was being aggressive enough on January 6, Schiff implied that the January 6 Commission played a key role in their efforts.

This is something that has not gotten enough attention: Even if DOJ didn’t ask, the Jan 6 Commission would refer people for any crimes they discovered, as SSCI and HPSCI both referred people to Mueller for lying, lies that led to the prosecution and cooperation of (at least) Michael Cohen and Sam Patten. Schiff knows better than anyone that HPSCI’s investigation was critical to the prosecution of Roger Stone. I also suspect that Steve Bannon’s transcripts were important preparation for Bannon’s grand jury appearance in January 2019, because they laid out the script that the White House had given to him for his testimony. I further suspect that SSCI obtained — and then shared — testimony from certain witnesses that Mueller could not otherwise get.

Trump’s pseudo-cooperation with the Mueller investigation, waiving privilege for the investigation but not any prosecution, likely was one hinderance to holding him accountable. And on this investigation, DOJ would be even more constrained, because it could face Executive Privilege claims and definitely would face Speech and Debate protections.

There has been almost no discussion of how closely Bennie Thompson and Liz Cheney are working with DOJ to ensure that the Jan 6 Commission doesn’t impede DOJ’s Jan 6 investigation, but it must be happening.

Similarly, there has been no discussion of obvious witnesses that the Jan 6 Commission has not (yet) subpoenaed, such as Lin Wood or Rudy Giuliani, the latter of whom DOJ seized phones from in another investigation in April.

Finally, there has been little discussion of how DOJ moved to have Executive Privilege waived for Congress just as the Jan 6 Commission got up and running.

DOJ only released its new contact policy — under which the request for a privilege determination may have been passed — on July 21. I’m curious whether the request for a  waiver of executive privilege waiver came after that. Executive privilege considerations were a key limitation on the Mueller investigation overseen in its final days partly by Rosen himself.

At least as interesting, however, is that DOJ sent the letter just one day before DOJ submitted a court filing in the Eric Swalwell lawsuit — speaking of members of Congress but using more generalized language — arguing that no federal officials can campaign in their official capacity and further noting that attacking one’s employer is not within the scope of someone’s job description.

DOJ is using that same waived privilege for the documents responsive to the Jan 6 Commission requests at the National Archive.

That is, DOJ is supporting the efforts of a co-equal branch of government to obtain testimony and records that that co-equal branch of government has a broader claim to than DOJ itself.

And Schiff, who understands better than anyone how HPSCI and DOJ worked together on the Stone prosecution, described, after first answering a question that he distinguished from January 6, then addressing January 6 directly by saying that “our role in this[] is to expose the malefactors,” and “we will count on the Justice Department to play its role” if and when the Commission “inform[s] the Justice Department of other facts that they may not yet be aware of yet.”

Yes, the January 6 Commission has a very short window in which to work. Yes, Congress is taking steps that DOJ does not appear to be taking. But that doesn’t mean that DOJ is not obtaining that evidence.

A Tale of Three Capitol Visitor Center Arrests: Why January 6 Is Different from Portland

By the end of the month, all of six January 6 defendants who were arrested in the middle of the riot will almost certainly have pled guilty to misdemeanor trespassing offenses.

The four guilty pleas, thus far, have led me to realize how thin their statements of offense are as compared to others who have pled guilty, even those pleading to the same trespassing offense:

The cornerstone to all these statements of offense is this paragraph describing how, shortly before 2:30 on January 6, after some Capitol Police officers told some rioters to leave and they didn’t, the officers started arresting people (the SOOs vary about whether the defendant claims not to have heard or, as with Curzio, admitted that he refused to leave).

10. Video surveillance depicted Sweet and Fitchett walking down a corridor in the Capitol Visitors Center, which is part of the Capitol building, shortly after 2:30 p.m., toward the end of the corridor area where U.S. Capitol Police officers had formed a defensive line. Other rioters also gathered in this corridor. The officers issued commands for the rioters to leave the building. Sweet maintains he did not hear those commands. When rioters refused their commands, the officers began arresting individuals who had unlawfully entered the building, including Sweet and Fitchett. The Federal Bureau of Investigation (“FBI”) uncovered no evidence that Sweet and Fitchett engaged in violent or disruptive conduct at the Capitol grounds or inside the building.

In Fitchett’s case, the government doesn’t even claim to know when she took a video of her approach to the Capitol with Sweet.

9. Sometime during the early afternoon of January 6, 2021, Fitchett recorded a video of herself and Sweet approaching an entrance into the Capitol with a large crowd around them yelling and making banging noises. Fitchett, with the camera turned on herself, stated in a raised voice, “We are storming the Capitol. We have broken in. Patriots arise.” Shortly after then, Sweet and Fitchett unlawfully entered the Capitol.

I find that interesting because these six arrests, almost alone of the the 560-some arrests so far, replicate a typical arrest from unrest in Portland where — according to a DOJ filing submitted in Garret Miller’s case last month — there’s just far less evidence with which to hold rioters accountable.

More fundamentally, the 45 Oregon cases serve as improper “comparator[s]” because those defendants and Miller are not similarly situated. Stone, 394 F. Supp. 3d at 31. Miller unlawfully entered the U.S. Capitol and resisted the law enforcement officers who tried to move him. Doc. 16, at 4. He did so while elected lawmakers and the Vice President of the United States were present in the building and attempting to certify the results of the 2020 Presidential Election in accordance with Article II of the Constitution. Id. at 2-3. And he committed a host of federal offenses attendant to this riot, including threatening to kill a Congresswoman and a USCP officer. Id. at 5-6. All this was captured on video and Miller’s social-media posts. See 4/1/21 Hr’g Tr. 19:14-15 (“[T]he evidence against Mr. Miller is strong.”). Contrast that with the 45 Oregon defendants, who—despite committing serious offenses—never entered the federal courthouse structure, impeded a congressional proceeding, or targeted a specific federal official or officer for assassination. Additionally, the government’s evidence in those cases often relied on officer recollections (e.g., identifying the particular offender on a darkened plaza with throngs of people) that could be challenged at trial—rather than video and well-documented incriminating statements available in this case. These situational and evidentiary differences represent “distinguishable legitimate prosecutorial factors that might justify making different prosecutorial decisions” in Miller’s case.

In fact, the affidavit used to arrest the six January 6 trespassing defendants shows that the Capitol Police officer who wrote it within a day of fighting rioters for what was likely hours, actually got the time of the arrest wrong by half an hour, an error which would have made it hard to charge felony obstruction if DOJ had considered it with these defendants.

In this context, at or about 3:00 p.m., I responded along with other members of the Capitol Police to a disturbance involving several dozen people who were inside the United States Capitol without lawful authority, under the circumstances described above. I observed the crowd moving together in a disorderly fashion, and I observed members of the crowd engage in conduct such as making loud noises, and kicking chairs, throwing an unknown liquid substance at officers, and spraying an unknown substance at officers.

In a loud and clear voice, Capitol Police Officers ordered the crowd to leave the building. The crowd did not comply, and instead responded by shouting and cursing at the Capitol Police Officers. I observed that the crowd, which at the time was located on the Upper Level of the United States Capitol Visitors Center near the door to the House Atrium, included the six individuals who were later identified to be Cindy Fitchett, Michael Curzio, Douglas Sweet, Terry Brown, Bradley Rukstales, and Thomas Gallgher. These six individuals were positioned towards the front of the crowd, close to the Capitol Police Officers who were responding, and to the officer who issued the order to leave. The six individuals, like others in the larger crowd, willfully refused the order to leave.

Even though they were caught on surveillance video, the Capitol Visitors Center was one of the least filmed places in the riot. To make things worse, Capitol Police Officers were not equipped with Body Worn Cameras that day, so there’s no record of this arrest.

In other words, for six people who entered the building, the FBI may have remarkably little evidence of their doing so, but because they alone among the thousands who did enter were arrested onsite and so were prosecuted.

It’s worth comparing those six arrests and resolution with the prosecutions of three others who were also in the Capitol Visitor’s Center at almost precisely that time, because it demonstrates how the FBI had so much other evidence covering the actions of most defendants.

First, there’s Robert Gieswein. He was arrested quite early in the investigation — on January 19 — based largely on his presence, kitted out in tactical gear and carrying a baseball bat, in some of the most spectacular scenes of the assault on the Capitol, including the initial breach with Dominic Pezzola.

But his initial arrest affidavit written ten days after the riot did not mention Gieswein’s actions inside the CVC at all.

That was only revealed in detention filing submitted in June. It revealed that, at about the same time and place where Curzio and others were being arrested, Gieswein was allegedly assaulting cops to avoid arrest.

Gieswein later went near the Capitol Visitor Center, where he and other rioters encountered a group of U.S. Capitol Police officers, and he again deployed his aerosol spray on those officers. Although there is not video of this incident that undersigned counsel is aware of, the defendant is charged with spraying and then assaulting a U.S. Capitol Police officer in the Capitol Visitor Center. According to that Officer, a person matching largely matching Gieswein’s description took out an unknown chemical-type aerosol agent, which one officer likened to OC spray, and sprayed a group of officers, causing irritation of the eyes. One officer recalls the person who matches the defendant’s description throwing punches at police. When the Capitol Police took the defendant to the ground to arrest him, other individuals around the defendant advanced on the officers, pushed them back, and freed Gieswein, who fled the area. Parts of the aftermath of this incident, including the defendant and Capitol police on the ground, and the defendant fleeing, are captured on Capitol surveillance video.

This is one of the rare assaults charged in January 6 of which there is not (yet, as far as we know) video evidence. If that were all Gieswein were arrested on — if he wasn’t also charged with assaulting two other sets of officers and obstruction — then his lawyers might be pushing to dismiss or plead down the charges, as happened with many Portland defendants.

But the rest of his actions were spectacularly caught on film, including this scene where he sprayed cops with some toxin.

In other words, in Gieswein’s case, police tried, but failed, to arrest him on January 6, probably along with the six who pled to misdemeanors. It took some days to track him down to Colorado and the FBI never recovered the clothes he wore or his phone. But even though he may have succeeded in hiding or destroying evidence he himself controlled, and even though one of his alleged assaults occurred in one of the few blind spots in the riot, there’s still a lot implicating him in the attack on the Capitol.

It took far longer to track down Jamie Buteau, along with his wife, Jennifer. They weren’t arrested until June 23, in Jamie’s case on charges of assault and civil disorder on top of trespassing.

At the moment everyone else discussed in this post was either being arrested or allegedly assaulting cops to avoid arrest, the Buteaus were nearby, with Jamie allegedly throwing chairs at cops on several occasions. As with Gieswein, there appears to be no Capitol CCTV of one of his assaults, one of several times he threw chairs, either. But a video posted to Parler captured him picking up a chair.

And while the closing doors hid Buteau at the moment he allegedly threw that chair (as the door also hid Gieswein’s face in the photo above), the Parler video captured the chair he had just been holding flying through the air.

By the time of their arrest, FBI had tracked the Buteaus from the moment they entered the Capitol at 2:25, to their presence at between the Crypt and CVC from 2:29 to 2:31, to their entry into the CVC just behind Gieswein, back through the Crypt at 2:44, and then out the South Door at 2:46.

Like Gieswein, the Buteaus appear to have succeeded in destroying some evidence of their involvement in the riot. Jennifer was livestreaming onto Facebook the day of the riot, but she deleted that livestream and replaced it with a post blaming Antifa.

But several tipsters — including a former co-worker of another person with whom Buteau was at the riot — told the FBI about her live posts.

Jennifer also changed her Facebook profile to claim she was a Democrat, but one of her family members anonymously informed the FBI about that attempt to deceive — and also offered that both Buteaus had been in a HBO VICE show that another tipster (possibly one of the Sedition Trackers) found based off a BOLO picture showing Jamie’s face. Altogether, four different tipsters were able to provide the FBI information that the FBI (remarkably, in the case of the HBO appearance) wasn’t able to find on their own.

There were blind spots in the panopticon of the January 6 insurrection. But even defendants alleged to have committed assaults in one of those blind spots were still trackable by a slew of other evidence.

The Rebellion Rorschach: The Many Faces of the January 6 Investigation

Four different things happened yesterday to demonstrate how differently judges presiding over the January 6 trial view it, and how little they seem to understand the intersecting nature of this investigation.

DC Circuit ignores its own language about co-conspirators and abettors

The final event was the reversal, by a per curiam panel including Karen Henderson, Judith Rogers, and Justin Walker, of Thomas Hogan’s decision to hold George Tanios pretrial.

As a reminder, Tanios is accused of both conspiring and abetting in Julian Khater’s attack on three cops, including Brian Sicknick, with some toxic substance.

I’m not going to complain about Tanios’ release. By way of comparison, Josiah Colt has never been detained, and he pled out of a conspiracy with Ronnie Sandlin and Nate DeGrave in which they, like Tanios and Khater, planned to arm themselves before traveling to DC together, and in which Sandlin and DeGrave, like Khater, are accused of assaulting cops that played a key role in successfully breaching the Capitol. The main difference is that Khater’s attack injured the three officers he targeted using a toxic spray purchased by Tanios.

It’s how the DC Circuit got there that’s of interest. Tanios had argued that Hogan had used the same language from the Munchel decision everyone else does, distinguishing those who assault or abet in assaulting police which the DC Circuit has returned to in upholding detention decisions since, and in so doing had applied a presumption of detention for those accused of assault and abetting assault.

In assessing Tanios’s risk of danger, the District Court placed too much emphasis on this sentence from Munchel: “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.” Id. at 1284.

This is only one line in a ten-page opinion written by Judge Wilkins. It is dicta. It was not quoted or adopted by Judge Katsas’s separate opinion. This line does not create a new approach for evaluating detention issues in this Circuit. It does not mandate that defendants be placed in two separate categories. It does not require a separate, harsher treatment for defendants accused of specific violent offenses. Critically, it does not create a presumption of future dangerousness and should not create a presumption of detention. Rather, it seems that the line is merely intended to remind district court judges that violence is one factor to consider in making a determination about dangerousness. [my emphasis]

The DC Circuit specifically ruled against Tanios on his claim that Hogan had misapplied Munchel.

[A]ppellant has not shown that the district court applied a presumption of detention in contravention of the Bail Reform Act and precedent, see United States v. Khater, No. 21-3033, Judgment at *2 (D.C. Cir. July 27, 2021)

They had to! As their citation makes clear, just two weeks ago, a per curiam panel of Patricia Millet, Robert Wilkins, and Ketanji Brown Jackson upheld the very same detention order (which covered both defendants), holding that the same line of the Hogan statement that Tanios pointed to did not do what both Tanios and Khater claimed it had, presume that assault defendants must be detained.

Appellant contends that the district court misapplied our decision in United States v. Munchel, 991 F.3d 1273 (D.C. Cir. 2021), by making a categorical finding, based solely on the nature of the offense charged (assaultive conduct on January 6), that no conditions of release could ever mitigate the per se prospective threat that such a defendant poses. If the district court had proceeded in that fashion and applied some sort of non-rebuttable presumption of future dangerousness in favor of detention, it would have been legal error. See id. at 1283 (“Detention determinations must be made individually and, in the final analysis, must be based on the evidence which is before the court regarding the particular defendant. The inquiry is factbound.”) (quoting United States v. Tortora, 922 F.2d 880, 888 (1st Cir. 1990)). However, while the district court stated, “Munchel delineates an elevated category of dangerousness applied [to] those that fall into the category that necessarily impose a concrete prospective threat,” the district court also explained, “I think Munchel does not set a hard-line rule. I don’t think that the categories are solely determinative, but it creates something like a guideline for the Court to follow . . . .” Detention Hr’g Tr. at 42:21-24; 43:11-13, ECF No. 26 (emphasis added). In making its ruling, the district court discussed at length the facts of this case, and expressly noted that “we have to decide whether the defendant is too dangerous based upon that conduct to be released or is not,” “every circumstance is different in every case, and you have to look at individual cases,” and that “the government may well not overcome the concrete and clear and convincing evidence requirement.” Id. at 43:8-10, 43:16-18, 43:20-21. Based on our careful review of the record, we find that the district court made an individualized assessment of future dangerousness as required by the Bail Reform Act and that appellant has not shown that the district court applied an irrefutable presumption of mandatory detention in contravention of the statute and our precedent.

Yesterday’s panel cited the earlier affirmation of the very same opinion that detained Tanios.

It’s in distinguishing Tanios where the panel got crazy. The panel could have argued that the evidence that Tanios conspired with or abetted Khater’s assault was too weak to hold him — Tanios made a non-frivolous argument that in refusing to give Khater one of the two canisters of bear spray he carried, he specifically refused to join in Khater’s attack on the cops. But they don’t mention conspiracy or abetting charges.

Instead, the DC Circuit argued that Hogan clearly erred in finding Khater’s accused co-conspirator to be dangerous.

[T]he district court clearly erred in its individualized assessment of appellant’s dangerousness. The record reflects that Tanios has no past felony convictions, no ties to any extremist organizations, and no post-January 6 criminal behavior that would otherwise show him to pose a danger to the community within the meaning of the Bail Reform Act. Cf. Munchel, 991 F.3d at 1282-84 (remanding pretrial detention orders where the district court did not demonstrate it adequately considered whether the defendants present an articulable threat to the community in light of the absence of record evidence that defendants committed violence or were involved in planning or coordinating the events of January 6).

Munchel isn’t actually a precedent here, because that decision remanded for further consideration. The DC Circuit ordered Hogan to release Tanios. Crazier still, in citing the same passage from Munchel everyone else does, the DC Circuit edited out the language referring to those who abetted or conspired with those who assaulted cops, the language used to hold Tanios. It simply ignores the basis Hogan used to hold Tanios entirely, his liability in a premeditated attack he allegedly helped to make possible, and in so doing argues the very same attack presents a danger to the community for one but not the other of the guys charged in it.

If this were a published opinion, it would do all kinds of havoc to precedent on conspiracy and abetting liability. But with two short paragraphs that don’t, at all, address the basis for Tanios’ detention, the DC Circuit dodges those issues.

Beryl Howell has no reasonable doubt about January 6

Earlier in the day, DC Chief Judge Beryl Howell grew exasperated with another plea hearing.

This time, it was Glenn Wes Lee Croy, another guy pleading guilty to a misdemeanor “parading” charge. The plea colloquy stumbled on whether Croy should have known he wasn’t permitted on the Capitol steps — he claimed, in part, that because this was his first trip to DC, he didn’t know he shouldn’t have been on the steps, even in spite of the barricades. Croy was fine admitting he shouldn’t have been in the building, though.

Things really heated up when Howell started asking Croy why he was parading (Josh Gerstein has a more detailed description of this colloquy here).

Under oath, pleading to a misdemeanor as part of a deal that prohibits DOJ from charging Croy with anything further for his actions on January 6, he made some kind of admission that Howell took to mean he was there to support Trump’s challenge to the election, an admission that his intent was the same as the intent required to charge obstruction of the vote count.

When she quizzed AUSA Clayton O’Connor why Croy hadn’t been charged with felony obstruction for his efforts to obstruct the vote certification, the prosecutor explained that while the government agreed that contextually that’s what Croy had been doing, the government didn’t find direct evidence that would allow him to prove obstruction beyond a reasonable doubt, a sound prosecutorial decision.

O’Connor is what (with no disrespect intended) might be deemed a journeyman prosecutor on the January 6 cases. He has seven cases, five of which charge two buddies or family members. Of those, just Kevin Cordon was charged with the obstruction charge Howell seems to think most defendants should face, in Cordon’s case for explicitly laying out his intent in an interview the day of the riot.

We’re here to take back our democratic republic. It’s clear that this election is stolen, there’s just so much overwhelming evidence and the establishment, the media, big tech are just completely ignoring all of it. And we’re here to show them we’re not having it. We’re not- we’re not just gonna take this laying down. We’re standing up and we’re taking our country back. This is just the beginning.

O’Connor is prosecuting Clifford Mackrell and Jamie Buteau for assault and civil disorder. But otherwise, all his cases are trespass cases like Croy’s (including that of Croy’s codefendant Terry Lindsey).

This was the guy who, with no warning, had the task of explaining to the Chief Judge DOJ’s logic in distinguishing misdemeanor cases from felonies. Unsurprisingly, it’s all about what the government thinks they can prove beyond a reasonable doubt, based on evidence like that which Cordon shared with a journalist or, just as often, what people write in their social media accounts. This process has made sense to the few of us who have covered all these cases, but like O’Connor, Howell is dealing primarily with the misdemeanor cases and my not see how DOJ appears to be making the distinction.

Howell also demanded an explanation from O’Connor in Croy’s sentencing memo why DOJ is not including the cost of the National Guard deployment in the restitution payments required of January 6 defendants.

Both according to its own prosecutorial guidelines and the practical limitations of prosecuting 560 defendants, DOJ can’t use a novel application of the obstruction statute to charge everyone arrested in conjunction with January 6 with a felony. It’s a reality that deserves a better, more formal explanation than the one O’Connor offered the Chief Judge extemporaneously.

Trevor McFadden believes a conspiracy to overthrow democracy is not a complex case

Meanwhile, the Discovery Coordinator for the entire investigation, Emily Miller, missed an opportunity to explain to Trevor McFadden the logic behind ongoing January 6 arrests.

In advance of a hearing for Cowboys for Trump founder Couy Griffin, prosecutor Janani Iyengar submitted a motion for a 60-day continuance to allow for the government to work through discovery. She brought Miller along to a status hearing to explain those discovery challenges to McFadden, who had complained about them in the past and refused to toll the Speedy Trial Act in this case. Because Iyengar recently offered Griffin a plea deal, his attorney Nick Smith was fairly amenable to whatever McFadden decided.

Not so the judge. He expressed a sentiment he has in this and other cases, that the government made a decision to start arresting immediately after the attack and continues to do so. “There seems to be no end in sight,” McFadden complained, suggesting that if DOJ arrested someone in three months who offered up exculpatory evidence that affected hundreds of cases, those would have to be delayed again. In spite of the fact that several prosecutors have explained that the bulk of the evidence was created on January 6, McFadden persists in the belief that the trouble with discovery is the ingestion of new evidence with each new arrest.

Miller noted that the government could start trials based on the Brady obligation of turning over all exculpatory evidence in their possession, so future arrests wouldn’t prohibit trials. The problem is in making the universe of video evidence available to all defense attorneys so they have the opportunity of finding evidence to support theories of defense (such as that the cops actually welcomed the rioters) that would require such broad review of the video.

McFadden then suggested that because Griffin is one of the rare January 6 defendants who never entered the Capitol, Miller’s team ought to be able to segregate out an imagined smaller body of evidence collected outside. “Were that it were so, your honor,” Miller responded, pointing out that there were thousands of hours of surveillance cameras collected from outside, the police moved in and outside as they took breaks or cleaned the bear spray from their eyes so their Body Worn Cameras couldn’t be segregated, and the Geofence warrant includes the perimeter of the Capitol where Griffin stood.

McFadden then said two things that suggested he doesn’t understand this investigation, and certainly doesn’t regard the attack as a threat to democracy (he has, in other hearings, noted that the government hasn’t charged insurrection so it must not have been one). First, he complained that, “In other cases,” the government had dealt with a large number of defendants by giving many deferred prosecutions or focusing just on the worst of the worst, a clear comparison to Portland that right wingers like to make. But that’s an inapt comparison. After noting the data somersaults one has to do to even make this comparison, a filing submitted to Judge Carl Nichols in response to a selective prosecution claim from Garret Miller explained the real differences between Portland and January 6: There was far less evidence in the Portland cases, meaning prosecutions often came down to the word of a cop against that of a defendant and so resulted in a deferred prosecution.

This comparison fails, first and foremost, because the government actually charged nearly all defendants in the listed Oregon cases with civil-disorder or assault offenses. See Doc. 32-1 (Attachments 2-31). Miller has accordingly shown no disparate treatment in the government’s charging approaches. He instead focuses on the manner in which the government ultimately resolved the Oregon cases, and contrasts it with, in his opinion, the “one-sided and draconian plea agreement offer” that the government recently transmitted to him. Doc. 32, at 6. This presentation—which compares the government’s initial plea offer to him with the government’s final resolution in 45 hand-picked Oregon cases—“falls woefully short of demonstrating a consistent pattern of unequal administration of the law.”3 United States v. Bernal-Rojas, 933 F.2d 97, 99 (1st Cir. 1991). In fact, the government’s initial plea offer here rebuts any inference that that it has “refused to plea bargain with [Miller], yet regularly reached agreements with otherwise similarly situated defendants.” Ibid.

More fundamentally, the 45 Oregon cases serve as improper “comparator[s]” because those defendants and Miller are not similarly situated. Stone, 394 F. Supp. 3d at 31. Miller unlawfully entered the U.S. Capitol and resisted the law enforcement officers who tried to move him. Doc. 16, at 4. He did so while elected lawmakers and the Vice President of the United States were present in the building and attempting to certify the results of the 2020 Presidential Election in accordance with Article II of the Constitution. Id. at 2-3. And he committed a host of federal offenses attendant to this riot, including threatening to kill a Congresswoman and a USCP officer. Id. at 5-6. All this was captured on video and Miller’s social-media posts. See 4/1/21 Hr’g Tr. 19:14-15 (“[T]he evidence against Mr. Miller is strong.”). Contrast that with the 45 Oregon defendants, who—despite committing serious offenses—never entered the federal courthouse structure, impeded a congressional proceeding, or targeted a specific federal official or officer for assassination. Additionally, the government’s evidence in those cases often relied on officer recollections (e.g., identifying the particular offender on a darkened plaza with throngs of people) that could be challenged at trial—rather than video and well-documented incriminating statements available in this case. These situational and evidentiary differences represent “distinguishable legitimate prosecutorial factors that might justify making different prosecutorial decisions” in Miller’s case. Branch Ministries, 211 F.3d at 145 (quoting United States v. Hastings, 126 F.3d 310, 315 (4th Cir. 1997)); see also Price v. U.S. Dep’t of Justice, 865 F.3d 676, 681 (D.C. Cir. 2017) (observing that a prosecutor may legitimately consider “concerns such as rehabilitation, allocation of criminal justice resources, the strength of the evidence against the defendant, and the extent of a defendant’s cooperation” in plea negotiations) (brackets and citation omitted).

3 Miller’s motion notably omits reference to the remaining 29 Oregon cases in his survey, presumably because the government’s litigation decisions in those cases do not conform to his inference of selective treatment. [my emphasis]

McFadden ended with one of his most alarming comments. He said something to the effect of, he doesn’t feel that the January 6 investigation was a complex type of case akin to those (often white collar cases) where a year delay before trial was not that unusual.

This was a fairly breathtaking comment, because it suggests that McFadden sees this event as the magical convergence of thousands of criminals at the Capitol rather than the result of a sustained conspiracy to get a mass of bodies to the building, a conspiracy that started at least as early as the days after the election. While McFadden’s highest profile January 6 case is a sprawling assault case against Patrick McCaughey and others (the one that trapped Officer Daniel Hodges in the Capitol door), this view seems not to appreciate some larger investigative questions pertinent to some of his other defendants. For example, what happened to the laptops stolen from various offices, including the theft that Brandon Fellows may have witnessed in Jeff Merkley’s office. Did America First engaged in a conspiracy to gets its members, including Christian Secor, to the Capitol (and did a huge foreign windfall that Nick Fuentes got days before the insurrection have anything to do with that). What kind of coordination, if any, led a bunch of Marines to successfully open a second front to the attack by opening the East Doors also implicates Secor’s case. One of the delays in Griffin’s own case probably pertained to whether he was among the Trump speakers, as members of the 3-Percenter conspiracy allegedly were, who tied their public speaking role to the recruitment of violent, armed rioters (given that he has been given a plea offer, I assume the government has answered that in the negative).

It has become increasingly clear that one of the visible ways that DOJ is attempting to answer these and other, even bigger questions, is to collect selected pieces of evidence from identifiable trespassers with their arrest. For example, Anthony Puma likely got arrested when he did because he captured images of the Golf Cart Conspiracy with his GoPro. He has since been charged with obstruction — unsurprisingly, since he spoke in detailed terms about preventing the vote certification in advance. But his prosecution will be an important step in validating and prosecuting the larger conspiracy, one that may implicate the former President’s closest associates.

This is white collar and complex conspiracy investigation floating on top of a riot prosecution, one on which the fate of our democracy rests.

Melody Steele-Smith evaded the surveillance cameras

A report filed yesterday helps to explain the import of all this. Melody Steele-Smith was arrested within weeks of the riot on trespass charges, then indicted on trespass and obstruction charges. She’s of particular interest in the larger investigation because — per photos she posted on Facebook — she was in Nancy Pelosi’s office and might be a witness to things that happened there, including the theft of Pelosi’s laptop.

At a hearing last week, the second attorney who has represented her in this case, Elizabeth Mullin, said she had received no discovery, particularly as compared to other January 6 defendants. So the judge in that case, Randolph Moss, ordered a status report and disclosure of discovery by this Friday.

That status report admits that there hasn’t been much discovery, in particular because, aside from the surveillance photos used in her arrest warrant, the government hasn’t found many images of Steele-Smith in surveillance footage.

The United States files this memorandum for the purpose of describing the status of discovery. As an initial matter, the government has provided preliminary discovery in this case. On or about June 4, 2021, the government provided counsel for defendant preliminary discovery in this matter. This production had been made previously to the defendant’s initial counsel of record. Counsel for defendant received the preliminary production that had been provided to previous counsel. This preliminary production included the FBI 302 of defendant’s sole interview, the recorded interview of defendant which formed the basis of the aforementioned FBI 302, over one thousand pages of content extracted from defendant’s Facebook account, and thirty-nine photographs confiscated from defendant’s telephone.

The government is prepared to produce an additional discovery production no later than August 13, 2021. The production will include additional items that have been obtained by the government from the FBI. These items include, additional FBI investigative reports and the Facebook search warrant dated January 21, 2021. The FBI has provided the government with the full extent of the materials in its possession. While these items are few in number, the government is continuing to review body worn camera footage in an attempt to locate the defendant. Camera footage will be provided if it is located. The government has been diligent in its efforts to obtain all discoverable items in possession of the FBI.

That still leaves a thousand Facebook pages and 39 photos, some of them taken at a key scene in the Capitol a scene that — given the evidence against Steele-Smith and in other cases — is a relative blind spot in the surveillance of the Capitol. The interview described here is not reflected in her arrest warrant, and so may include non-public information used to support the obstruction case.

Beryl Howell might argue this is sufficient evidence to prove the government’s obstruction case. Trevor McFadden might argue that this case can’t wait for more video evidence obtained from future arrestees of what Steele-Smith did while “storm[ing] the castle” (in her own words), including the office of the Speaker of the House. But the theft of the Pelosi laptop — including whether Groypers like Riley Williams were involved — remains unsolved.

If a single terrorist with suspect ties to foreign entities broke into the office of the Speaker of the House and stole one of her laptops, no one would even think twice if DOJ were still investigating seven months later. But here, because the specific means of investigation include prosecuting the 1,000 people who made that break-in possible, there’s a push to curtail the investigation.

I don’t know what the answer is because the Speedy Trial issues are very real, particularly for people who are detained. But I do know it’s very hard for anyone to get their mind around this investigation.

“Darkened Plazas with Throngs of People:” The Government Debunks the Portland – January 6 Comparisons

The government just responded to January 6 defendant Garret Miller’s claim of selective prosecution. Miller is charged with assault and civil disorder, obstruction, and — for threats against AOC and the officer who shot Ashli Babbit — interstate threats.

On January 15, 2021, MILLER admitted in a Facebook chat that he is “happy to make death threats so I been just off the rails tonight lol,” and is “happy to be banned now [from Twitter].” When asked whether the police know his name, he responded, “[I]t might be time for me to …. Be hard to locate.”

Last month, Miller filed two motions claiming selective prosecution (for discovery, to dismiss). He argued that Portland defendants were treated differently than he is being treated, because many of the Portland cases involving (some but not all of) the same crimes he was charged with are being dismissed or resulting in plea deals.

UndersignedCounsel has undertaken an extensive review of pleadingsfiled on PACER, press releases issued by the United States Attorney’s Office for the District of Oregon, and various news accounts as they relate to the Portland riots. From that review, it appearsthat approximately 74 persons were charged with criminal offenses arising out of the riots. 5 Of those 74 persons, to date, approximately 30 persons have had their cases dismissed (often with prejudice) upon motion of the government, 12 persons appear to have been offered dismissals upon completing a pre-trial diversion program, and at least 3 persons have been allowed by the government to plead guilty to significantly reduced charges.6

Most of the Portland rioters were charged with a violation of 18 U.S.C. § 231(a)(3) (civil disorder) and/or a violation of 18 U.S.C. § 111 (assault on a federal officer). These are the same charges brought against Mr. Miller in Counts One, Two and Four of the Superseding Indictment based upon his participation in the Washington, D.C. riots.

Given the right wing efforts to compare the two events, this was an inevitable legal challenge. And as such, it will be one of the few times where the government is asked to compare their prosecutorial decisions between the two events.

The government responded to the motion for discovery today. It argues, generally, that Miller hasn’t presented any similarly situated people.

Miller fails this showing. A selective-prosecution claim requires the defendant to identify “similarly situated” individuals who “have not been prosecuted,” Irish People, Inc., 684 F.2d at 946 (citation omitted), and Miller has pointed to no such individual. He instead cites 45 cases (from a sample of 74) where the government charged the defendant with federal offenses arising from riots around the federal courthouse in Portland, Oregon, and where the government subsequently dismissed the charges, entered a deferred-prosecution agreement, or acceded to the defendant’s guilty plea on reduced charges. Doc. 32, at 7.2

2 Miller’s motion further references pleadings from 31 of these cases where, in his view, the defendant’s conduct in Portland mirrored his actions on January 6, 2021. Doc. 32, at 8-16; see also Doc. 32-1 (Attachments 1-31).

This is how most selective prosecution claims die: the precedents require coming in with proof of an almost exactly similar case getting differently treated, and then proving it was differently treated for some kind of bias.

It then points out the obvious: Miller is not claiming selective prosecution, he’s claiming that the outcomes of those prosecutions are different than his is likely to be.

This comparison fails, first and foremost, because the government actually charged nearly all defendants in the listed Oregon cases with civil-disorder or assault offenses. See Doc. 32-1 (Attachments 2-31). Miller has accordingly shown no disparate treatment in the government’s charging approaches. He instead focuses on the manner in which the government ultimately resolved the Oregon cases, and contrasts it with, in his opinion, the “one-sided and draconian plea agreement offer” that the government recently transmitted to him. Doc. 32, at 6. This presentation—which compares the government’s initial plea offer to him with the government’s final resolution in 45 hand-picked Oregon cases—“falls woefully short of demonstrating a consistent pattern of unequal administration of the law.”3 United States v. Bernal-Rojas, 933 F.2d 97, 99 (1st Cir. 1991). In fact, the government’s initial plea offer here rebuts any inference that that it has “refused to plea bargain with [Miller], yet regularly reached agreements with otherwise similarly situated defendants.” Ibid.

3 Miller’s motion notably omits reference to the remaining 29 Oregon cases in his survey, presumably because the government’s litigation decisions in those cases do not conform to his inference of selective treatment.

You can’t claim selective prosecution when those other defendants were also charged, especially not after you, yourself, have been offered the same “significantly reduced charges” you’re complaining Portland protestors got.

But then the government goes into specifics about what distinguishes Miller: generally, there’s far better evidence against Miller, and, specifically, he committed other crimes as well.

More fundamentally, the 45 Oregon cases serve as improper “comparator[s]” because those defendants and Miller are not similarly situated. Stone, 394 F. Supp. 3d at 31. Miller unlawfully entered the U.S. Capitol and resisted the law enforcement officers who tried to move him. Doc. 16, at 4. He did so while elected lawmakers and the Vice President of the United States were present in the building and attempting to certify the results of the 2020 Presidential Election in accordance with Article II of the Constitution. Id. at 2-3. And he committed a host of federal offenses attendant to this riot, including threatening to kill a Congresswoman and a USCP officer. Id. at 5-6. All this was captured on video and Miller’s social-media posts. See 4/1/21 Hr’g Tr. 19:14-15 (“[T]he evidence against Mr. Miller is strong.”). Contrast that with the 45 Oregon defendants, who—despite committing serious offenses—never entered the federal courthouse structure, impeded a congressional proceeding, or targeted a specific federal official or officer for assassination. Additionally, the government’s evidence in those cases often relied on officer recollections (e.g., identifying the particular offender on a darkened plaza with throngs of people) that could be challenged at trial—rather than video and well-documented incriminating statements available in this case. These situational and evidentiary differences represent “distinguishable legitimate prosecutorial factors that might justify making different prosecutorial decisions” in Miller’s case. Branch Ministries, 211 F.3d at 145 (quoting United States v. Hastings, 126 F.3d 310, 315 (4th Cir. 1997)); see also Price v. U.S. Dep’t of Justice, 865 F.3d 676, 681 (D.C. Cir. 2017) (observing that a prosecutor may legitimately consider “concerns such as rehabilitation, allocation of criminal justice resources, the strength of the evidence against the defendant, and the extent of a defendant’s cooperation” in plea negotiations) (brackets and citation omitted)

More importantly (and a point that Trevor McFadden made when Couy Griffin tried to claim he was being picked on because he got charged with the same trespassing charge virtually everyone else got charged with), the government notes that Miller hasn’t been treated differently than any of the 500 others who’ve been charged in January 6.

[H]e is one of more than 500 defendants already charged for participating in the riot, and he does not suggest that he has been treated differently than any of those similarly situated defendants.

This is a response to a guy who, though his assault charges are not as serious as the assaults charged against others, then went on Twitter and bragged about committing crimes, and then threatened several people, including a Congressperson. Other January 6 defendants might raise more interesting selective prosecution challenges, which will likely fail for the general comments laid out about the quality of evidence involved. But this challenge was doomed from the start. Miller’s alleged crimes were so well documented — on camera and in his own words — that he was never the person to bring this challenge.

More importantly, the government raises one big reason why the January 6 defendants will be prosecuted and some Portland defendants will not (setting aside the 29 cases Miller tried to pretend didn’t exist), even assuming their alleged crimes are just as bad: because there weren’t tens of thousands of others filming their actions, because they didn’t try to occupy a building full of CCTV, and because they didn’t brag about their crimes after the fact.

This may not end the comparisons between January 6 and Portland. But it does lay out for the court very practical reasons why throwing the book at January 6 defendants is easier to do than Portland defendants: because January 6 defendants committed alleged crimes in bright spaces covered by CCTV and then went on social media and bragged about doing so, whereas many Portland defendants did so in “darkened plazas.”