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Former Secret Cooperator Enrique Tarrio Reveals a Secret Cooperation Deal

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Last Friday, in the guise of arguing that Enrique Tarrio’s trial should be moved from DC to Miami, one of his attorneys, Sabino Jauregui, revealed that DOJ had gotten a plea agreement with Jeremy Bertino and “Stewart” in June, but only rolled them out recently, which he claimed was proof of politicization. That argument, like Jauregui’s arguments that the national media coverage that Tarrio himself had cultivated and a DC lawsuit against the Proud Boys that the judge presiding over the case, Tim Kelly, had never heard of, meant Tarrio could not be tried in DC was nonsensical and probably false as to motive. It was a painfully stupid argument from lawyers from one of the few people who could make a real case for moving his trial (though not to Miami, where there has been localized Proud Boy coverage).

But it revealed that the person identified as “Person Three” in many of the charging documents, John “Blackbeard” Stewart, had entered a plea agreement in June. After I tweeted that out, WaPo described a June 10 Information charging someone with conspiring to obstruct the vote certification.

The disclosure by Tarrio’s defense aligns with court records showing that prosecutors on June 10 charged a defendant who was expected to plead guilty and cooperate with investigators in a case related to Tarrio and four top lieutenants, who stand accused of planning in advance to oppose the lawful transfer of presidential power by force. The unidentified defendant was charged with conspiring to obstruct an official proceeding of Congress, according to the records — initially posted publicly by the court but removed from public view.

It’s unclear whether Jauregui really meant to argue that the non-disclosure of a June plea would harm his client — or even the early October disclosure of a Bertino plea that was signed in September — or whether this was the kind of happy accident that sometimes exposes a detail that might be useful for others. But it reveals that in the same period when DOJ charged Tarrio and his alleged co-conspirators with sedition, DOJ secretly added a cooperator against them.

That detail isn’t all that surprising — and it’s certainly not cause to move the trial to Miami. The government often keeps cooperation deals secret — indeed, the government kept at least some of Tarrio’s cooperation secret when he was cooperating against his codefendants and other medical fraudsters in the 2010s. They did so, in part, so he could conduct undercover operations.

But it raises other questions, such as what happened with Aaron Whallon Wolkind, who also figured prominently in charging documents as Person 2, but who was not mentioned in Bertino’s statement of offense. The recent silence about AWW’s role in January 6 is all the more telling given that Zach Rehl’s co-travelers, Isaiah Giddings, Brian Healion, and Freedom Vy just had their pre-indictment prosecution continued until February; along with Rehl, they’re the ones that interacted most closely with AWW on and leading up to January 6. We may learn more by Wednesday, which is the due date for the two sides to submit a new sentencing date for Jeff Finley, another co-traveler of this crowd.

There has long been reason to wonder about what was going on in the Proud Boy case behind the scenes. The revelation of hidden plea deals only confirms that.

The silence of most Oath Keeper cooperators

It’s not just the Proud Boys investigation where there’s uncertainty about cooperating witnesses.

A recent status report for Jon Schaffer, who was generally understood to be a cooperator against the Oath Keepers, reveals that his attorney,

has reached out to counsel for the government, Ahmed Baset, Esq., multiple times in regard to the Joint Statius Report as requested by this Court. Unfortunately, as of the filing of this report, undersigned counsel has not been able to reach Mr. Baset.

The status report includes the same description as used in earlier status reports, one that was always weird in conjunction with the Oath Keepers and now is completely incompatible with it.

Multiple defendants charged in the case in which the Defendant is cooperating have been presented before the Court; several are in the process of exploring case resolutions and a trial date has yet to be set.

That doesn’t rule out that his cooperation was for different militia defendants, or for Oath Keeper James Breheny, whose pre-indictment prosecution was recently continued until January (Breheny is most interesting for an event he attended in Lancaster, PA, not far from both John Stewart and AWW).

The continuing lack of clarity about Schaffer’s cooperation comes even as he has successfully hidden from DC process servers for months. He is one of the cooperators whose plea included the possibility of witness protection, but the process servers attempting to notify him of lawsuits against him seem to be chasing real addresses.

Schaffer aside, there are even interesting questions regarding cooperators in the main Oath Keeper conspiracy. After Graydon Young finished testifying yesterday (revealing, among other things, that he had learned that Kelly Meggs had high level ties to the Proud Boys), prosecutor Jeffrey Nestler revealed there is just one more civilian witness. If by “civilian” he includes cooperators, that means at most one more Oath Keeper cooperator — probably Joshua James, whose cooperation on post-January 6 development seems critical for the sedition charge — will testify. That would mean a bunch of the cooperators — Mark Grods, Caleb Berry, Brian Ulrich, and Todd Wilson — would not have taken the stand (Jason Dolan is the only other cooperator, in addition to Young, who has testified so far). While some of these cooperators were likely important for getting others to flip (for example, Grods would have implicated James), there are others, like Wilson, whose testimony might be uniquely valuable.

Or perhaps in the same way DOJ was attempting to hide at least one Proud Boy cooperator, the Oath Keeper team is hiding the substance that some of their cooperators have provided to protect ongoing investigations.

Mystery Green Berets

Then there’s a January 6 cooperation deal that has attracted almost no notice: that of Kurt Peterson. He’s a guy who broke a window of the Capitol and witnessed the shooting of Ashli Babbitt. Last December, DOJ was attempting to use the broken window to leverage him to plead guilty to obstruction as part of a cooperation deal. In September, he pled to trespassing with a dangerous weapon, one of the sweetest plea deals of any January 6 defendant, one that likely means he’ll avoid any jail time (which is consistent with how enthusiastically DOJ was pursuing his cooperation last year). In advance of his plea, the two sides got permission to seal two sentences in Peterson’s statement of offense.

Here, there are compelling interests that override the public’s presumptive right of access because the proposed plea agreement is conditioned upon Defendant’s continued cooperation with the government, and the statement of offense that accompanies the proposed plea agreement describes another individual who is under investigation for criminal wrongdoing on January 6, 2021. Publicly filing this information could lead to the identification of this individual and would be akin to a criminal accusation that could cause serious reputational or professional harm before formal charges are filed. Moreover, the need to protect the integrity of the ongoing investigation justifies the requested partial sealing. See United States v. Hubbard, 650 F.2d 293, 323 (D.C. Cir. 1980) (“As to potential defendants not involved in the proceeding …premature publication can taint future prosecutions to the detriment of both the government and the defense.”). Furthermore, the partial sealing is justified by the need to protect the Defendant’s safety in light of his ongoing cooperation. Washington Post, 935 F.2d at 291 (“the safety of the defendant and his family, may well be sufficient to justify sealing a plea agreement”). See also United States v. Thompson, 199 F. Supp. 3d 3, 9 (D.D.C. 2016) (“sentencing memoranda that include information regarding a defendant’s cooperation are often filed under seal.”).

[snip]

No alternative to sealing will adequately protect the due process rights of an unnamed defendant; preserve the integrity of the government’s investigation; and help ensure the safety of the Defendant.

The two sentences in Peterson’s statement of offense (which follow these two sentences) clearly relate to the three people with whom he traveled from KY to DC.

The defendant, Kurt Peterson, lives in Hodgenville, Kentucky. On January 5, 2021, the defendant drove from his home to the Washington, D.C. area with three other people,

[snip]

After leaving the Capitol Building, the defendant met back up with his traveling companions.

He got separated from them on the way to the Capitol though; his cooperation likely pertains to what he learned they (or one of them) had done on the trip back.

His arrest affidavit describes a recording he made on January 10, 2021, when he had gone on the run. It reveals that his three companions were all former Special Forces guys in their sixties.

To my family and friends who are able to see this, I am writing it with a voice recognition program while driving. I feel the need to keep moving and trying to keep my phone wrapped such that it can’t be traced most of the time. I was at our nation’s capital for the rally and watched the presentations at the ellipse prior to walking to the Capitol building with at least a million and a 1-1/2 to 2 million people.

The people that were there at the ellipse were peaceable and loving and supporting our country. The people that were at the capital were also primarily peaceful and loving our country. But when there are huge crowds and there are people that are inciting violence the crowds will many times be pulled in to this action.

I was with 3 men who had served our country in special forces. All of us in our sixties.

[snip]

Sadly I do not trust many branches or people in our government particularly the federal bureau of investigation. So at this time I am moving continuously and wrapping my phone in such a way that I hope it cannot be tracked. If for any reason I am not available to see you or meet with you again know that my intentions are to keep our country free of oppression by an over zealous government.

Yet no one knows who these three (or one particular) suspects were that made them or him so interesting to DOJ to merit this sweet plea deal or the year of effort to get it.

The thing is, the suspect in question must have already been charged and probably arrested. Before the plea hearing formally started, there was discussion of a “related case” designation, which would ensure that Judge Carl Nichols would preside over it, as well as Peterson’s. That would only happen if there were already another indictment.

Besides, the three guys who were with Peterson know they were with him; redacting that language doesn’t hide the cooperation from them, at all.

The relentless public roll-out of cooperators in the Oath Keeper case is the exception, not the norm (as Amit Mehta noted when Schaffer first pled guilty). Even those of us who follow closely are not seeing all of what’s going on, even in the overt crime scene prosecutions.

And Tarrio, himself a former snitch, knows better than most how useful disclosing such details may be to help others evade justice.

The Tactics of the Louis Enrique Colon Cooperation Agreement

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

[snip]

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

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

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

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

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

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

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

They may have gotten that testimony yesterday.

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

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

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

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

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

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

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

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

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

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

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

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

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

DOJ Is Treating January 6 as an Act of Terrorism, But Not All January 6 Defendants Are Terrorists

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It turns out that Ted Cruz is (partially) right: Some of the people who participated in January 6 are being treated as terrorists. But not all January 6 participants are terrorists.

Though, predictably, Cancun Ted misstates which insurrectionists have been or might be labeled as terrorists — in part out of some urgency to avoid calling himself or Tucker Carlson as such.

While some defendants accused of assaulting cops will, I expect, eventually be slapped with a terrorism enhancement at sentencing, thus far, the people DOJ has labeled terrorists have been key members of the militia conspiracies, including a number who never came close to assaulting a cop (instead, they intentionally incited a shit-ton of “normies” to do so).

Ted Cruz wants to treat those who threatened to kill cops as terrorists, but not those who set up the Vice President to be killed.

The problem is, even the journalists who know how domestic terrorism works are giving incomplete descriptions of how it is working in this investigation. For example, Charlie Savage has a good explainer of how domestic terrorism works legally, but he only addresses one of two ways DOJ is leveraging it in the January 6 investigation. Josh Gerstein does, almost as an aside, talk about how terrorism enhancements have already been used (in detention hearings), but then quotes a bullshit comment from Ethan Nordean’s lawyer to tee up a discussion of domestic terrorism as a civil rights issue. More importantly, Gerstein suggests there’s a mystery about why prosecutors haven’t argued for a terrorism enhancement at sentencing; I disagree.

As numerous people have laid out, domestic terrorism is defined at 18 USC 2331(5):

(5) the term “domestic terrorism” means activities that—

(A) involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State;

(B) appear to be intended—

(i) to intimidate or coerce a civilian population;

(ii) to influence the policy of a government by intimidation or coercion; or

(iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and

(C) occur primarily within the territorial jurisdiction of the United States; and

As both Savage and Gerstein point out, under 18 USC 2332b(g)(5) there are a limited number of crimes that, if they’re done, “to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct,” can be treated as crimes of terrorism. One of those, 18 USC 1361, has been charged against 40-some January 6 defendants for doing over $1,000 of damage to the Capitol, including most defendants in the core militia conspiracies. Another (as Savage notes), involves weapons of mass destruction, which likely would be used if DOJ ever found the person who left bombs at the RNC and DNC. Two more involve targeting members of Congress or Presidential staffers (including the Vice President and Vice President-elect) for kidnapping or assassination.

If two or more persons conspire to kill or kidnap any individual designated in subsection (a) of this section and one or more of such persons do any act to effect the object of the conspiracy, each shall be punished (1) by imprisonment for any term of years or for life,

There’s very good reason to believe that DOJ is investigating Oath Keeper Kelly Meggs for conspiring to assassinate Nancy Pelosi, starting on election day and continuing as he went to her office after breaking into the Capitol, so it’s not unreasonable to think we may see these two laws invoked as well, even if DOJ never charges anyone with conspiring to assassinate Mike Pence.

Being accused of such crimes does not, however, amount to being charged as a terrorist. The terrorist label would be applied, in conjunction with a sentencing enhancement, at sentencing. But it is incorrect to say DOJ is not already treating January 6 defendants as terrorists.

DOJ has been using 18 USC 1361 to invoke a presumption of detention with militia leaders and their co-conspirators, starting with Jessica Watkins last February. Even then, the government seemed to suggest Watkins might be at risk for one of the kidnapping statutes as well.

[B]ecause the defendant has been indicted on an enumerated offense “calculated to influence or affect the conduct of government,” the defendant has been charged with a federal crime of terrorism as defined under 18 U.S.C §§ 2332b(g)(5). Therefore, an additional basis for detention under 18 U.S.C § 3142(g)(1) is applicable. Indeed, the purpose of the aforementioned “plan” that the defendant stated they were “sticking to” in the Zello app channel became startlingly clear when the command over that same Zello app channel was made that, “You are executing citizen’s arrest. Arrest this assembly, we have probable cause for acts of treason, election fraud.” Id. [my emphasis]

DOJ has invoked 18 USC 1361 as a crime of terrorism for detention disputes with the central Proud Boys conspirators as well. It’s unclear how broadly DOJ might otherwise do this, because another key figure who is an obvious a candidate for such a presumption, Danny Rodriguez (accused of tasing Michael Fanone and doing damage to a window of the Capitol), didn’t fight detention as aggressively as the militia members have, presumably because his alleged actions targeting Fanone clearly merit detention by themselves. That said, I believe his failed attempt to suppress his FBI interview, in which he admitted to helping break a window, was an attempt to limit his exposure to a terrorism enhancement.

We have abundant evidence that DOJ is using the threat of terrorism enhancement to get people to enter cooperation agreements. Six of nine known cooperators thus far (Oath Keepers Graydon Young, Mark Grods, Caleb Berry, and Jason Dolan, Proud Boy Matthew Greene, and SoCal anti-masker Gina Bisignano) have eliminated 18 USC 1361 from their criminal exposure by entering into a cooperation agreement. And prosecutor Alison Prout’s description of the plea deal offered to Kurt Peterson, in which he would trade a 210 to 262 month sentencing guideline for 41 to 51 months for cooperating, only makes sense if a terrorism enhancement for breaking a window is on the table.

You can’t say that DOJ is not invoking terrorism enhancements if most cooperating witnesses are trading out of one.

For those involved in coordinating the multi-pronged breaches of the Capitol, I expect DOJ will use 18 USC 1361 to argue for a terrorism enhancement at sentencing, which is how being labeled as a terrorist happens if you’re a white terrorist.

But there is another way people might get labeled as terrorists at sentencing, and DOJ is reserving the right to do so in virtually all non-cooperation plea deals for crimes other than trespassing. For all pleas involving the boilerplate plea deal DOJ is using (even including those pleading, as Jenny Cudd did, to 18 USC 1752, the more serious of two trespassing statutes), the plea deal includes this language.

the Government reserves the right to request an upward departure pursuant to U.S.S.G. § 3A1.4, n. 4.

That’s a reference to the terrorism enhancement included in sentencing guidelines which envisions applying a terrorism enhancement for either (A) a crime involving coercion other than those enumerated under 18 USC 2332b or (B) an effort to promote a crime of terrorism.

4. Upward Departure Provision.—By the terms of the directive to the Commission in section 730 of the Antiterrorism and Effective Death Penalty Act of 1996, the adjustment provided by this guideline applies only to federal crimes of terrorism. However, there may be cases in which (A) the offense was calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct but the offense involved, or was intended to promote, an offense other than one of the offenses specifically enumerated in 18 U.S.C. § 2332b(g)(5)(B); or (B) the offense involved, or was intended to promote, one of the offenses specifically enumerated in 18 U.S.C. § 2332b(g)(5)(B), but the terrorist motive was to intimidate or coerce a civilian population, rather than to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct. In such cases an upward departure would be warranted, except that the sentence resulting from such a departure may not exceed the top of the guideline range that would have resulted if the adjustment under this guideline had been applied. [my emphasis]

The point is, you can have a terrorism enhancement applied even if you don’t commit one of those crimes listed as a crime of terrorism.

In a directly relevant example, the government recently succeeded in getting a judge to apply the latter application of this enhancement by pointing to how several members of the neo-Nazi group, The Base, who pled guilty to weapons charges, had talked about plans to commit acts of terrorism and explained their intent to be coercion. Here’s the docket for more on this debate; the defendants are appealing to the Fourth Circuit. This language from the sentencing memo is worth quoting at length to show the kind of argument the government would have to make to get this kind of terrorism enhancement at sentencing.

“Federal crime of terrorism” is defined at U.S.S.G. § 3A1.4, app. note 1 and 18 U.S.C. § 2332b(g)(5). According to this definition, a “federal crime of terrorism” has two components. First, it must be a violation of one of several enumerated statutes. 18 U.S.C. § 2332b(g)(5)(B). Second, it must be “calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.” 18 U.S.C. § 2332b(g)(5)(A). By § 3A1.4’s plain wording, there is no requirement that the defendant have committed a federal crime of terrorism. All that is required is that the crimes of conviction (or relevant conduct) involved or were intended to promote a federal crime of terrorism.

[snip]

To apply the enhancement, this Court needs to identify which specific enumerated federal crime(s) of terrorism the defendants intended to promote, and the Court’s findings need to be supported by only a preponderance of the evidence. Id.17

The defendants repeatedly confirmed, on tape, that their crimes were intended to promote enumerated federal crimes of terrorism. They intended to kill federal employees, in violation of 18 U.S.C. § 1114. Exhibit 19; Exhibit 20; Exhibit 28; Exhibit 33; Exhibit 34; Exhibit 44; Exhibit 45. They intended to damage communication lines, in violation of 18 U.S.C. § 1362. Exhibit 37. They intended to damage an energy facility, in violation of 18 U.S.C. § 1366(a). Exhibit 30; Exhibit 35; Exhibit 36; Exhibit 45. They intended to damage rail facilities, in violation of 18 U.S.C. § 1992. Exhibit 29; Exhibit 30; Exhibit 38; Exhibit 45. And they intended to commit arson or bombing of any building, vehicle, or other property used in interstate commerce, in violation of 18 U.S.C. § 844(i). Exhibit 45.

Furthermore, there can be no serious dispute that the defendants’ intentions were “to influence or affect the conduct of government by intimidation or coercion.” Coercion and capitulation were core purposes of The Base. And specific to the defendants, they themselves said this is what they wanted. Exhibit 39 (“Desperation leads to martyr. Leads to asking what we want. Now that’s where we would have to simply keep the violence up, and increase the scope of our demands. And say if these demands are not met, we’re going to cause a lot of trouble. And when those demands are met, then increase them, and continue the violence. You just keep doing this, until the system’s gone. Until it can’t fight anymore and it capitulates.”). It was their express purpose to “bring the system down.” Exhibit 36

Given how many people were talking about hanging Mike Pence on January 6, this is not a frivolous threat for January 6 defendants. But as noted, such a terrorism enhancement doesn’t even require the plan to promote assassinating the Vice President. It takes just acts dangerous to human life that are a violation of the criminal laws of the United States and an attempt to coerce the government.

Contra Gerstein, I think there’s a pretty easy explanation for why the government hasn’t asked for a terrorism enhancement yet. The way the government is relying on obstruction to prosecute those who intended to prevent the peaceful transfer of power sets up terrorism enhancements for some of the most violent participants, but we’ve just not gotten to most of the defendants for whom that applies.

Thus far, there have been just three defendants who’ve been sentenced for assault so far, the acts “dangerous to human life” most at issue: Robert Palmer, Scott Fairlamb, and Devlyn Thompson. But Palmer and Thompson pled only to assault.

Fairlamb, as I noted at the time, pled guilty to both assault and obstruction. Unlike the two others, Fairlamb admitted that his intent, in punching a cop, was to, “stop[] or delay[] the Congressional proceeding by intimidation or coercion.”

When FAIRLAMB unlawfully entered the Capitol building, armed with a police baton, he was aware that the Joint Session to certify the Electoral College results had commenced. FAIRLAMB unlawfully entered the building and assaulted Officer Z.B. with the purpose of influencing, affecting, and retaliating against the conduct of government by stopping or delaying the Congressional proceeding by intimidation or coercion. FAIRLAMB admits that his belief that the Electoral College results were fraudulent is not a legal justification for unlawfully entering the Capitol building and using intimidating [sic] to influence, stop, or delay the Congressional proceeding.

Fairlamb, by pleading to assault and obstruction, admitted to both elements of terrorism: violence, and the intent of coercing the government.

On paper, Fairlamb made a great candidate to try applying a terrorism enhancement to. But the sentencing process ended up revealing that, on the same day that Fairlamb punched a cop as part of his plan to overturn the election, he also shepherded some cops through a mob in an effort, he said with some evidence shown at sentencing, to keep them safe.

That is, on paper, the single defendant to have pled guilty to both assault and obstruction looked like a likely candidate for a terrorism enhancement. But when it came to the actual context of his crimes, such an enhancement became unviable.

I fully expect that if the January 6 prosecution runs its course (a big if), then DOJ will end up asking for and getting terrorism enhancements at sentencing, both for militia members as well as some of the more brutal assault defendants, both for those who plead guilty and those convicted at trial. But in the case of assault defendants, it’s not enough (as Ted Cruz says) to just beat cops. With a goodly number of the people who did that, there’s no evidence of the intent to commit violence with the intent of disrupting the peaceful transfer of power. They just got swept up in mob violence.

I expect DOJ will only ask for terrorism enhancements against those who made it clear in advance and afterwards that their intent in resorting to violence was to interrupt the peaceful transfer of power.

But until that happens, DOJ has already achieved tangible results, both in detention disputes and plea negotiations, by invoking crimes of terrorism.

The Six Trump Associates Whom DOJ Is Investigating

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Because I keep having to lay out the proof that DOJ, in fact, has investigated close Trump associates of the sort that might lead to Trump himself, I wanted to make a list of those known investigations. Note that three of these — Sidney Powell, Alex Jones, and Roger Stone — definitely relate to January 6 and a fourth — the investigation into Rudy Giuliani — is scoped such that that it might include January 6 without anyone knowing about it.

Rudy Giuliani

As I said a month ago, the treatment of Rudy Giuliani’s phones single-handedly disproves claims that Merrick Garland’s DOJ wouldn’t investigate Trump’s people, because a month after he was confirmed and literally the same day that Deputy Attorney General Lisa Monaco was sworn in on April 21, DOJ obtained warrants targeting Rudy Giuliani.

The known warrants for Rudy’s phone pertain to whether, in the lead-up to Trump’s impeachment for trying to coerce Ukraine’s assistance in the 2020 election, Rudy was acting as an unregistered agent of Ukraine.

But as this table shows, Judge Paul Oetken ordered Special Master Barbara Jones to conduct a privilege review for Rudy’s seized devices from January 1, 2018 through the date of seizure, April 28, 2021. That means anything on Rudy’s devices from the entire period when he was helping Trump obstruct Mueller’s investigation well past the time he played the central role on orchestrating a coup attempt would be available to DOJ if it could show probable cause to get it.

There’s good reason to believe DOJ could show probable cause to access Rudy’s phones from April 2018 (before he formally became Trump’s lawyer), because during that period he was attempting to buy Michael Cohen’s silence with a pardon. There’s equally good reason to believe that act of obstruction is one of the referrals still redacted in the Mueller Report.

On or about April l 7, 20 l 8, Cohen began speaking with an attorney, Robert Costello, who had a close relationship with Rudolph Giuliani, one of the President’s personal lawyers. 1022 Costello told Cohen that he had a “back channel of communication” to Giuliani, and that Giuliani had said the “channel” was “crucial” and “must be maintained.” 1023 On April 20, 2018, the New York Times published an article about the President’s relationship with and treatment of Cohen. 1024 The President responded with a series of tweets predicting that Cohen would not ” flip” :

The New York Times and a third rate reporter . . . are going out of their way to destroy Michael Cohen and his relationship with me in the hope that he will ‘flip. ‘ They use nonexistent ‘sources’ and a drunk/drugged up loser who hates Michael, a fine person with a wonderful family. Michael is a businessman for his own account/lawyer who I have always liked & respected. Most people will flip if the Government lets them out of trouble, even if it means lying or making up stories. Sorry, I don’t see Michael doing that despite the horrible Witch Hunt and the dishonest media! 1025

In an email that day to Cohen, Costello wrote that he had spoken with Giuliani. 1026 Costello told Cohen the conversation was “Very Very Positive[.] You are ‘loved’ … they are in our corner … . Sleep well tonight[], you have friends in high places.”1027

Similarly, there’s good reason to believe DOJ could show probable cause to access Rudy’s phone for his involvement in Trump’s attempted coup, not least because Rudy himself tweeted out some texts he exchanged with a Proud Boy associate discussing specific insurrectionists in the aftermath of the attack.

We wouldn’t know if DOJ had obtained warrants for those separate periods, because those periods will be covered by Jones’ review one way or another.

In any case, the details of the Rudy investigation show, at a minimum, that Barr went to extraordinary lengths to attempt to kill this investigation (and may have even ordered that FBI not review the materials seized in 2019). It took mere weeks after Garland took over, however, for the investigation to take very aggressive steps.

It also shows that SDNY managed to renew this investigation without major leaks.

Tom Barrack

Just this Tuesday, in a Zoom hearing for Brooklyn’s Federal Court, lawyers for the guy who installed Paul Manafort as Trump’s campaign manager suggested that Merrick Garland had politicized DOJ because, after the investigation into Tom Barrack had apparently stalled in 2019, he was indicted as an unregistered agent of the Emirates in July 2021.

According to reporting from 2019, this investigation was a Mueller referral, so it’s proof that Garland’s DOJ will pursue such referrals. According to CNN reporting, the indictment was all ready to go in July 2020, a year before it was actually charged. That provides a measure of how long it took an investigation that was deemed complete at a time when Barr seemingly prohibited filing it to be resuscitated under Garland: at least four months.

Barrack’s prosecution proves that DOJ can indict a top Trump associate without leaks in advance.

Jury selection for Barrack’s trial is now scheduled to start on September 7.

Sidney Powell

Two different outlets have reported that there is a grand jury investigation into Sidney Powell’s grifting off lies about election fraud. WaPo’s story on the investigation describes that Molly Gaston is overseeing the investigation (she is also overseeing the Steve Bannon referral). As I noted, Gaston was pulled off three prosecutions for insurrectionists by last March.

Gaston originally pulled three January 6 cases in the investigation’s early days, those of Robert Packer, Robert Gieswein, and Derrick Evans, just the latter of which, involving a then-West Virginia state politician, had any possible public corruption component. But, at a time of immense staffing shortages at DC’s US Attorney’s Office, she dropped off those cases on February 18 (in the case of Packer) and March 29 (in the case of Gieswein and Evans). I’ve long wondered what, in the weeks after Merrick Garland came in, became a higher priority for the DC US Attorney’s leading public corruption prosecutor. We now know one thing she picked up in the interim was the prosecution of Michael Riley, the Capitol Police Officer who advised rioter Jacob Hiles to delete Facebook posts about his role in the riot. And by September, Gaston’s grand jury investigation into Sidney Powell’s grift had started taking overt steps like subpoenaing Powell’s nonprofit.

For at least the Michael Riley prosecution and the Steve Bannon prosecution, Gaston is using two of at least three grand juries that are also investigating insurrectionists. For at least those investigations, there is no separate grand jury for the public corruption side of the investigation and the assault on the Capitol. They are the same investigation.

The investigation into Powell will necessarily intersect in interesting ways with Trump’s pardon of Mike Flynn.

There have been a lot of complaints that DOJ is not following the money. Powell’s investigation is proof that DOJ is following the money.

Alex Jones

Over the last year, DOJ has collected a great deal of evidence that the Oath Keepers, the Proud Boys, and an alarming number of former Marines worked together to open a second breach on the Capitol via the East doors. Instrumental to the success of this breach were a large number of MAGA tourists who joined in the breach. DOJ has proof that at least some of them were there because Alex Jones had lured them there by lying about a second Trump speech on the East side of the building.

DOJ has already arrested two of Jones’ employees: videographer Sam Montoya in April and on-air personality Owen Shroyer in August.

In a November DOJ response in the Shroyer case, Alex Jones was referred to as Person One, as numerous others believed to be under active investigation have been described. That filing debunked the cover story that Shroyer and Jones have used to excuse their actions on January 6. Judge Tim Kelly, who is also presiding over the most important Proud Boys cases, is currently reviewing Shroyer’s First Amendment challenge to his arrest.

This strand of the investigation has likely necessarily lagged the exploitation of former Alex Jones’ employee Joe Biggs’ iCloud and phone, which were made available to Biggs’ co-travelers in August. This post has more on the developments in the Montoya and Shroyer cases, including that a different prosecutor recently took over Monotya’s case.

Roger Stone

Roger Stone, who has close ties to both the Oath Keepers and Proud Boys who coordinated the attack on the Capitol, has shown up repeatedly in the Oath Keeper conspiracy. In March, DOJ debunked Connie Meggs’ claim not to know her co-conspirators by including a picture of an event she did with Roger Stone and Graydon Young (this was close to the time that Connie’s husband Kelly organized an alliance between Florida militias).

In a May 25 FBI interview, Mike Simmons, the field commander for the Oath Keepers on January 6, appears to have been specifically asked why Simmons had so many conversations with Joshua James, who was providing security for Roger Stone at the Willard the morning of the insurrection. Simmons appears to have explained that James called him every time Stone moved.

In June, Graydon Young, the Floridian who attended that Stone event with Connie, entered a cooperation agreement. Also in June, Mark Grods, one of the Oath Keepers who had been at the Willard that morning, entered a cooperation agreement. In September, Jason Dolan, a former Marine from Florida who also interacted with Stone in advance of the insurrection and who was waiting there on January 6 as the other Oath Keepers, a number of Proud Boys (including former Alex Jones employee Joe Biggs) and Alex Jones himself all converged at the top of the East steps just as the doors were opened from inside, entered a cooperation agreement.

Erik Prince

There’s one more grand jury investigation into a powerful Trump associate that I know of via someone who was subpoenaed in the investigation in the second half of last year. The investigation reflects a reopening of an investigation Billy Barr shut down in 2019-2020. What’s interesting about it is the scope seems somewhat different and the investigating District is different than the earlier investigation. That may suggest that, for investigations that Barr shut down, DOJ would need to have a new evidence to reopen it. But the existence of this investigation shows, again, that Garland’s DOJ will go after powerful Trump associates.

Update, 2/8/22: NYT just named the sixth person under investigation: Erik Prince.

Mr. Prince is separately under investigation by the Justice Department on unrelated matters, according to people familiar with the case. The scope of that investigation is unclear.

It baffles me why TV lawyers continue to claim there’s no evidence that Merrick Garland is investigating anyone close to Trump — aside from they’re looking for leaks rather than evidence being laid out in plain sight in court filings. One of the first things that Garland’s DOJ did was to take really aggressive action against the guy who led Trump’s efforts to launch a coup. Alex Jones and Roger Stone are clearly part of the investigation into how the breach of the East doors of the Capitol came together, and the two of them (Jones especially) tie directly back to Trump.

There are other reasons to believe that DOJ’s investigation includes Trump’s role in the assault on the Capitol, laid out in the statements of offense from insurrectionists who’ve pled guilty, ranging from trespassers to militia conspirators. But one doesn’t even have to read how meticulously DOJ is collecting evidence that dozens of people have admitted under oath that they participated in the attack on the Capitol because of what Trump had led them to believe on Twitter.

Because DOJ clearly has several other routes to get to Trump’s role via his close associates. I’m not promising they’ll get there. And this will take time (as I’ll show in a follow-up). But that’s different than claiming that this evidence doesn’t exist.

Update: I did a podcast where I explained how the misdemeanor arrests are necessary to moving up the chain.

Easy Cases: Why Austin Sarat’s Argument That Trump Should Not Be Prosecuted Is Wrong

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Randolph Moss, serving as Assistant Attorney General for OLC in 2000, famously wrote the following:

Our view remains that a sitting President is constitutionally immune from indictment and criminal prosecution.

Less famously, however, the first 11 pages of that more famous memo rely on this earlier OLC memo from Moss:

We conclude that the Constitution permits a former President to be criminally prosecuted for the same offenses for which he was impeached by the House and acquitted by the Senate while in office.

Even less famous are words Moss released last Tuesday, now presiding as a judge over a January 6 prosecution, ruling that obstruction, 18 USC 1512(c)(2), clearly applies to the official Congressional proceeding to certify the vote count on January 6, 2021.

Hard cases may make bad law. But easy cases ought not.

For these reasons, the Court rejects Defendants’ contention that the joint session of Congress convened to certify the electoral vote is not a “proceeding before the Congress.”

Those legal documents are all useful background to my response to this Austin Sarat op-ed, opining that DOJ should not prosecute Trump for his actions related to January 6.

I worry that going forward with even a well-grounded prosecution of Trump would almost certainly turn him into a martyr, fuel a furious attack on the Biden Justice Department for using prosecution as a political weapon, spur violent outbursts, and plunge this country ever closer to the abyss which it seems to be fast approaching.

“An investigation and potential indictment and trial of Mr. Trump,” Eric Posner warns, “would give the circus of the Trumpian presidency a central place in American politics for the next several years, sucking the air out of the Biden administration and feeding into Mr. Trump’s politically potent claims to martyrdom. Mr. Trump will portray the prosecution as revenge by the ‘deep state’ and corrupt Democrats.”

This difficult judgment does not mean that Attorney General Garland should do nothing.

He can serve justice by building on the work of the House committee and helping to fully develop the facts of what Trump did in the lead up to and on January 6. Garland should present those facts clearly, logically, and with irrefutable documentation. And he should do what McConnell and Graham suggested in February by citing chapter and verse the numerous federal criminal laws that Trump violated.

First, some background.

Unless you went to Amherst College, you may never have heard of Sarat. He created a Law and Society program there and has served as a Dean. I’ve had conversations a number of prominent and not-so prominent lawyers who graduated from Amherst during Sarat’s tenure — some you’ve heard of!! — who have spoken of the great influence the professor has had on their career. And while I’m not a lawyer, like many of those lawyers, I first learned to read a legal document from Sarat.

Over thirty years ago in a class on how the state regulates sexuality, Sarat assigned me to read Griswold v Connecticut and Roe v Wade alongside Tolstoy and Kiss of the Spider Woman, the latter of which I taught on my own right and included in my dissertation years later. Sarat taught me critical skills you may benefit from at this site.

My complaint with Sarat’s argument is that he violates the rule he taught me so many years ago: He didn’t read the relevant legal documents before writing this op-ed. The sources he links in his op-ed are:

  • Watergate prosecutor Jill Wine-Banks’ MSNBC appearance addressing the issue
  • A column on a June 2021 Rachel Maddow appearance in which she suggested the House could send a criminal referral to DOJ
  • An article about a bunch of people responding to Liz Cheney’s invocation of obstruction (the same statute Moss ruled on), which itself betrays that those people quoted in the article missed how obstruction was already being used in DOJ’s prosecution
  • Lawrence Tribe’s column that is riddled with factual errors that make it clear Tribe is unfamiliar with the public record
  • Mitch McConnell’s speech, justifying why he was voting against impeaching Trump, noting that he could be criminally prosecuted
  • Lindsey Graham’s comments making the same argument: that Trump should not be impeached but could be prosecuted
  • A report on DC District Attorney Karl Racine’s comments that Trump could be charged with a misdemeanor
  • A BoGlo op-ed that calls for prosecution but envisions Trump’s vulnerability with regards to January 6 to pertain to incitement
  • A NY Mag piece that includes obstruction among the possible laws Trump may have broken, but claims that DOJ, “seems to be pursuing misdemeanor trespass cases at the Capitol more aggressively than potential felony charges for Trump,” which misunderstands how DOJ appears to be using misdemeanor arrests (and indeed, how those witnesses would be necessary to any Trump prosecution)
  • A Ryan Cooper piece that states as fact that Garland’s DOJ, “is enabling Republican lawlessness through its pathetic unwillingness to prosecute Trump and all his cronies for their crimes against democracy;” Cooper makes no mention of the Tom Barrack prosecution, and while he invokes Rudy Giuliani he doesn’t mention the decision — seemingly made in Deputy Attorney General Lisa Monaco’s first days — to seize Rudy Giuliani’s phones and spend 8 months getting a privilege review on the contents of Rudy’s phones right through April 2021
  • A law review article on prosecutorial discretion
  • Robert Jackson’s seminal text about the role of a Federal prosecutor
  • The Bordenkircher precedent on plea negotiations that upholds prosecutorial discretion
  • The quip, “hard cases make bad law”
  • An Eric Posner op-ed published before Trump attempted a coup

Some of these things — the Bordenkircher opinion, McConnell and Graham’s comments suggesting Trump could be prosecuted, and Robert Jackson — are important primary sources. But most of the rest are secondary sources, and many of them — notably Tribe and Cooper — are demonstrably wrong on the facts because they didn’t consult available primary sources.

And as a result of consulting erroneous sources like Tribe, Sarat misunderstands the case before him.

For example, many of Sarat’s sources imagine that Trump’s biggest criminal exposure is in incitement and not the same obstruction charge with which well over 200 insurrectionists have already been charged and to which at least a dozen people have already pled guilty (most of them even before Moss and his colleagues upheld the application in recent weeks). Nine pled guilty to obstruction as part of cooperation agreements and several of those cooperators interacted with Roger Stone in the days and hours leading up to the assault on the Capitol.

Many of Sarat’s sources assume that DOJ couldn’t get to Trump except for the work the January 6 Committee is doing.

In spite of Garland’s repeated claims that his DOJ would pursue the January 6 investigation wherever the evidence leads — including at an appearance where he discussed that famous Moss memo that relies so heavily on that less famous Moss memo — Sarat suggests that Garland would have to launch an investigation, one entirely separate from the investigation already in progress, anew. “Based on what we now know, there appears to be ample reason for Attorney General Merrick Garland to launch a criminal probe of Trump.” That is, Sarat treats the question before him as whether Merrick Garland should take to a podium and announce, “we are investigating the former President,” and not whether DOJ should continue the investigation(s) that it already has in progress, working to prosecute organizer-inciters like Alex Jones’ side-kick Owen Shroyer (who helped lure mobsters to the Capitol) and flipping low-level conspirators to build the case against more senior conspirators, conspirators whose ties to Trump associates like Jones and Stone have already been raised in court documents.

The question is not whether DOJ should open an investigation into Donald Trump. The question is whether, if and when DOJ accumulates enough evidence — surely helped by Select Committee efforts but in no way relying entirely on them — to show probable cause that Trump conspired with others to prevent Congress from certifying the vote on January 6, 2021, to charge him like DOJ has already charged hundreds of others.

And that question is significantly a question about equity.

The question is whether, if Paul Hodgkins has to serve eight months in prison for occupying the Senate while waving a Donald Trump flag around (Hodgkins is already three months into that sentence), Donald Trump should be prosecuted as well.

The question is whether, if Jacob Chansley has to serve 41 months in prison (Chansley has been in jail since January 9, 2021) for occupying the Senate dais, in defiance of orders from a cop, with a spear and a blowhorn and leaving a message for Mike Pence reading, “It’s Only A Matter of Time. Justice Is Coming!,” Donald Trump should be prosecuted as well.

The question is whether, if Kevin Fairlamb has to serve 41 months in prison (Fairlamb has been in jail since January 22, 2021) for punching one of the cops protecting the Capitol “with the purpose of influencing, affecting, and retaliating against the conduct of government by stopping or delaying the Congressional proceeding by intimidation or coercion,” Donald Trump should be prosecuted as well.

The question is whether, if Gina Bisignano faces 41 months for traveling to DC boasting, “The insurrection begins,” marching to the Capitol while narrating her actions — “we are marching to the Capitol to put some pressure on Mike Pence” and “I’m going to break into the Capitol” — and then helping to break a window to get into the Capitol, Trump should be prosecuted as well.

The question is whether, if Matthew Greene faces 41 months in prison for — months after Trump instructed the Proud Boys to “stand back and stand by” — joining the Proud Boys in an orchestrated assault on the Capitol in hopes, “that his actions and those of his co-conspirators would cause legislators and the Vice President to act differently during the course of the certification of the Electoral College Vote than they would have otherwise,” Donald Trump should be prosecuted as well. Greene has been in jail since April 21, 2021.

The question is whether, if Jon Schaffer faces 41 months for, after learning “that Vice President Pence planned to go forward with the Electoral College vote certification,” forcibly storming the Capitol armed with bear spray, Trump should be prosecuted as well.

The question is whether, if Josiah Colt faces 51 months because, after he, “learned that the Vice President had not intervened to stop the certification of the Electoral College vote,” he stormed the Capitol, broke into the Senate, and then occupied Pence’s chair, Donald Trump should be prosecuted as well.

The question is whether, if Graydon Young faces 63 months because he barged into the Capitol as part of a stack of kitted out militia members with the purpose of “intimidating and coercing government personnel who were participating in or supporting” the vote certification, Donald Trump should be prosecuted as well.

At this point, there’s no way to avoid the things Sarat would like to avoid by merely talking about Trump’s crimes rather than prosecuting them, to say nothing of the way that would violate DOJ rules prohibiting doing so. That’s true, in large part, because Trump is claiming martyrdom for those who did his dirty work. Between right wing lawyers swooping in to push defendants to renege on their guilty pleas, continued efforts by defendants’ co-conspirators to claim they were all set up by the Deep State, and schemes to profit off continued propaganda in support of Trump, every one of these cases involves some of the things that Sarat fears would occur if Trump, too, were prosecuted. Trump has a press conference scheduled for January 6 that will undoubtedly do some of the things Sarat would like to stave off. That din will only get louder as trials start in February. The claims of martyrdom are already baked into this investigation, and so would be better addressed by a direct debunking rather than a belated attempt at avoidance, not least because white terrorists have a history of undermining prosecutions by claiming martyrdom.

But there’s another reason, besides equity, that demands that DOJ prosecute Trump if prosecutors can collect the evidence to do so.

All five of the opinions (Dabney Friedrich, Amit Mehta, Tim Kelly, James Boasberg, plus Moss) upholding the application of obstruction to the vote certification have some discussion of what separates “corrupt” efforts to obstruct the vote count from political lobbying or civil disobedience. The discussion entails whether corruption requires an attempt to corrupt someone else, or whether it only involves corruptness in one’s own actions. A number of these opinions take an easy route, stating simply that the defendants in question are alleged to have broken the law in other ways in their efforts to obstruct the vote count, which gets past corruptness in one’s own actions, so a further analysis of whether legal actions might amount to obstruction is unnecessary as applied to those defendants. That’s an intransitive understanding of the corrupt purpose necessary to obstruction.

All stop short of where James Pearce, the prosecutor guiding this adoption of 1512(c)(2), went in responding to a question from Trump appointee Carl Nichols; Pearce stated that one way an unnamed person just like Trump might act corruptly would be by asking someone else to violate their duty: If that person, “calls Vice President Pence to seek to have him adjudge the certification in a particular way … 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.” That’s a transitive kind of corruption, an attempt to get someone else to violate their oath. Even some of the confessed obstructors listed here (most notably, the first Proud Boy to plead guilty) were knowingly doing that.

But there’s a third option. In his opinion on the application of 1512(c)(2), somewhat uniquely among the five opinions upholding the application thus far, former OLC head Judge Moss ruled that if the use of illegal activity to interrupt the vote count weren’t enough to distinguish between normal protests and obstruction, then the court could turn to whether the defendants (whom, in this case, you’ve likely never heard of) were attempting to obtain an improper benefit for themselves … or someone else.

To the extent any additional guardrail is necessary, other recognized definitions of the term “corruptly” both fit the context of the obstruction of a congressional proceeding and provide additional guidance. In his separate opinion in Aguilar, for example, Justice Scalia quoted with approval the jury instruction given by the district court in that case: “An act is done corruptly if it’s done voluntarily and intentionally to bring about an unlawful result or a lawful result by some unlawful method, with a hope or expectation of . . . [a] benefit to oneself or a benefit to another person.” 515 U.S. at 616–17 (Scalia, J., concurring in part and dissenting in part). Because the Aguilar majority ruled on other grounds, it did not opine on the meaning of “corruptly.” Id. at 598–603. But there is no reason to doubt Justice Scalia’s observation that formulations of this type are “longstanding and well-accepted,” id. at 616, and, indeed, the D.C. Circuit cited to a similar definition—“a person acts ‘corruptly’ when taking action ‘with the intent to obtain an improper advantage for [one]self or someone else, inconsistent with official duty and the rights of others’”—in United States v. Pasha, 797 F.3d 1122, 1132 (D.C. Cir. 2015) (quotation marks omitted) (quoting United States v. North, 910 F.2d 843, 882 (D.C. Cir. 1990), opinion withdrawn and superseded in other part on reh’g, 920 F.2d 940 (D.C. Cir. 1990)). In the garden-variety disruption or parading case, in contrast, the government need not prove that the defendant sought unlawfully to obtain a benefit for himself or another person in the proceeding itself. But, because the Court is persuaded that Defendants’ vagueness argument fails even without this refinement, and because the Court has yet to hear from the parties on the proper jury instructions, the Court will leave for another day the question whether this formulation—or a slightly different formulation—will best guide the jury.

This language likely came out of some ill-advised claims from the defense attorneys in question, who claimed there would be no injustice that could result from obstructing the certification of Joe Biden’s vote. The claim was ridiculous. It suggested that nullifying the votes of 81 million people and depriving Biden of his legal victory would create no victims.

But the comment brought the briefing before Moss to where it didn’t go (except to a limited degree before Kelly) in the other challenges.

The obstruction of the vote count on January 6, 2021 was corrupt because people put on body armor, broke into the locked Capitol, and beat up cops in an attempt to obstruct the certification of Biden’s victory — the intransitive corruption of the people who broke other laws to carry it out. It was corrupt because those who carried it out sought to intimidate people like Mike Pence to do what he otherwise refused to. But it was corrupt because the entire goal, shared by all the people charged with obstruction, was to declare Trump the victor in an election he didn’t win.

DOJ should not back off prosecuting Trump along with all those others charged in the same crime, some of whom (I believe DOJ will ultimately be able to prove) are co-conspirators with Trump in a large networked conspiracy, for the crime of trying to obstruct the certification of Joe Biden’s win. Judges, defense attorneys, and defendants themselves — including many of the trespassers — keep insisting that Donald Trump was the key participant in the crime they’re all pleading guilty to.

His improper advantage was undoubtedly the goal.

“What every prosecutor is practically required to do is to select the cases for prosecution and to select those in which the offense is the most flagrant, the public harm the greatest, and the proof the most certain,” Jackson told America’s US Attorneys in the famous speech Sarat cited. Those watching the DOJ investigation rather than just the Select Committee or some often ill-informed TV lawyers have raised real questions about whether DOJ has honored that advice, because so many hapless Trump dupes are being prosecuted for their role in attempting to interrupt the peaceful transfer of power (as I have laid out, there appear to be investigative reasons why DOJ has prosecuted the misdemeanants they have). But about one thing, Jackson had no doubt: “In the enforcement of laws that protect our national integrity and existence, we should prosecute any and every act of violation.”

As noted above, DOJ has thus far accused 275 people of obstructing the certification of Joe Biden’s victory (a good number of those have been permitted to plead down to a misdemeanor). DOJ has already decided that it will treat obstruction of the vote certification as a crime that endangers our national integrity. Charging Trump with obstruction would amount to holding the guy who stood to benefit to the same standard as those whose corrupt actions attempted to steal for him an improper advantage.

The question is not, as so many commentators who discovered the obstruction application only when Liz Cheney called their attention to it, whether to open an investigation into Trump. 700 people have already been charged in the investigation that might one day charge Trump. The question is whether to hold Trump to the same standard as the hundreds who have gone before him.

Prosecuting Trump may be the only way to confirm that Chansley and Bisignano and Colt and Young aren’t martyrs to Trump’s losing cause.

Other Posts

Because new readers are coming to this site via this post, I wanted to include some other overview posts about January 6 that may be helpful:

A Taxonomy of the [Visible] January 6 “Crime Scene” Investigation: This post explains what I understand the DOJ investigation to have accomplished in a year.

The Pied Piper of Insurrection, and Other Challenges in Charging the January 6 Organizer-Inciters: The 700 arrests thus far have been relatively easy, because everyone arrested was — at a minimum — trespassing on January 6. The next step of the investigation — arresting the organizer-inciters who themselves implemented Trump’s plans — is where DOJ will have to have more evidence of conspiracy or other corrupt mens rea supporting obstruction. This post looks at several of them.

Ten Things TV Lawyers Can Do Rather than Whinging about Merrick Garland: I can’t promise you DOJ will prosecute Trump or even Rudy Giuliani and Alex Jones. I can promise that if they were to charge Trump, it wouldn’t be before midterms. Complex investigations of very powerful people simply don’t work that fast. For that reason, among others, those spending their time whinging about Merrick Garland’s purported inaction would be better served finding some other way to save democracy. This post provides ten ways to do that.

Broken Windows Policing and January 6 Plea Deals

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Before Proud Boy Matthew Greene entered into a cooperation plea deal yesterday — the January 6 investigation event that generated a lot of press attention — something else happened that helps to explain the Greene (and most other) pleas thus far.

In a status hearing for Kurt Peterson, AUSA Alison Prout described that the government had offered Peterson a plea deal that she wanted to put on the record. He could plead guilty, Prout explained, to one count of obstruction, which would give him a guidelines range of 41 to 51 months. That compares to the sentence he faces if he were to go to trial on the other 7 counts, including a destruction of government property count, which Prout claimed might be 210 to 262 months. Prout claimed there had even been a meeting in Louisville to discuss such a deal and explicitly acknowledged the plea would include cooperation.

Only after that did Peterson’s attorney, Laura Wyrosdick, ask that the hearing — which I had just tweeted out in real time — be sealed to hide the discussion of cooperation.

Whatever effect Prout’s comments will have on her ability to finalize a plea deal with Peterson, she has confirmed something I pointed out when Graydon Young pled guilty. The government is using the terrorism enhancement that can come with 18 USC 1361 charges for damage to government property to convince people to plead to the obstruction charges and gain their cooperation. And because Peterson broke a window while at the Capitol, such a deal will look preferable by comparison.

It’s unclear what the government believes he can offer in cooperation (though the meeting in Louisville suggests he has already proffered testimony). On Facebook after the riot, he revealed he, “was with 3 men who had served our country in special forces. All of us in our sixties. They were patriots and not an [sic] anarchists.” Thus far, just two Special Forces veterans, Jeffrey McKellop and Jeremy Brown, have been arrested so far. McKellop would likely would be younger than his 60s (he completed 22 years of service in 2010) and I think Brown would be too. So it may be DOJ has an interest in Peterson’s co-travelers.

It’s also possible DOJ wants Peterson’s testimony about the attempts to break into, first, the House Chamber and then the Speaker’s Lobby. He was present as Ashli Babbitt was killed (and claimed to be calling the crowd to stop, though that doesn’t show up on the video I’ve seen). He’s not being prosecuted by AUSA Candice Wong in the group of men from that scene that seem to be clustered together. If that’s the case, then the government would be seeking to use the testimony of someone who had himself damaged the building to help prosecute men (at least Zach Alam, the guy who punched through the Speaker’s Lobby door) who likely do merit a terrorism enhancement for their efforts to hunt down members of Congress.

We’ll see whether Peterson ultimately decides to cooperate. But a similar calculation seems to have convinced Matthew Greene to flip on his Proud Boys.

Greene was charged, along with Dominic Pezzola and William Pepe, in what I call the “Front Door Proud Boys Conspiracy,” for the way the three of them worked towards Pezzola’s breach of a Northwest window, the first breach of the building on January 6. Greene was charged with conspiracy to obstruct the vote count (18 USC 371), obstruction (18 USC 1512(c)(2)), civil disorder (18 USC 231), destruction of government property (18 USC 1361, the charge that can carry a terrorism enhancement), as well as three trespassing counts.

His plea agreement shows that he pled to conspiracy — which the plea agreement claims included both obstruction and civil disorder (the first indictment did include both) — and the obstruction charge. Rather than a separate charge for vicarious responsibility for Pezzola’s break of the window (on an abetting charge), that liability is added to the obstruction charge as an “offense involving property damage.” At the hearing yesterday, it was said his guidelines range would be 41 to 51 before accounting for the cooperation.

That is, Matthew Greene made effectively the same deal that Peterson is contemplating, though he was probably working from a much higher guidelines range because of the additional civil disorder charge, not to mention possible weapons violations based off an AR-15 seized at his arrest.

Curiously, Greene’s written plea agreement still permits the government to request a terrorism enhancement under U.S.S.G. § 3A1.4, n. 4, which normally is being taken out of cooperation plea deals. But the entire proceeding yesterday was dismayingly discombobulated, with the plea itself just signed by Greene’s attorney and some clauses in the elements of the offense requiring tweaking. So it’s possible the prosecutors just used boilerplate and forgot to take that out. Greene’s attorney, Michael Kasmarek, spoke about the detailed discussions he has had with prosecutors, so he seems to trust them, but I’d still make sure everything were better captured in writing.

Perhaps it reflects the overwhelming workload of this investigation (the Proud Boys team has significantly fewer prosecutors — at least that have noticed appearances — than the team prosecuting the Oath Keepers), but I remain concerned that the team prosecuting the Proud Boys seems less organized than a bunch of the people prosecuting non-militia trespassers.

Greene’s deal differs from others thus far in that he’s moving immediately to sentencing on March 10 (he’s the only publicly identified cooperator in custody), with the understanding that even after sentencing the government may file for another downward departure while he serves his sentence.

The plea agreement contemplates the possibility of witness protection.

Update: Corrected to add Jeremy Brown as a Special Forces arrestee.

Update: Gina Bisignano’s August plea agreement has now been released. She, too, dodged the property damage crime by cooperating. She also faces the same 41 to 51 month sentence.

Dabney Friedrich Rejects Challenge to January 6 Obstruction Application

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I have written — a lot — about the application of obstruction (18 USC 1512(c)(2)) at the heart of the way DOJ has approached the January 6 prosecution. (July; July; August; August; September; September; December; December)

The government has, thus far, chosen not to charge January 6ers with Seditious Conspiracy (18 USC 2384), a crime which carries a sentence of 20 years but requires the government show specific intent to overthrow the government. DOJ has a history of spectacular failure when trying to charge white terrorists with sedition, in part because the bar to proving the elements of the offense is quite high, and in part because white terrorists have long known how to package their extremism in heroic terms. Sedition would be particularly hard to prove with regards to January 6, since it was an attack launched by one branch of government on another.

Instead, the government has charged those Jan6ers against whom they had solid evidence of a specific intent to stop the vote certification with obstruction of an official proceeding under 18 USC 1512(c)(2). Like sedition, that crime can carry a 20 year sentence. But the base offense carries a range closer to 18 months (or the eight months to which Paul Hodgkins was sentenced). To get to stiffer sentences, DOJ would have to demonstrate any of a number of exacerbating behaviors, most notably, the threat of violence or an attempt to assassinate someone, but also destruction of evidence. That’s how DOJ got to very different guideline ranges for five men, all of whom pled guilty to the same obstruction offense:

That is, using obstruction offers the possibility of the same sentence as sedition for the more serious perpetrators, without the same political blowback and legal risk, while giving DOJ more flexibility in punishing different kinds of actions that day as felonies.

Only, using obstruction in this fashion is without precedent, in part because no one has ever tried to prevent the vote certification by violently attacking the Capitol before.

Because of that, January 6 defense attorneys have launched a concerted legal attack on the application, variously claiming:

  • This application of obstruction can’t be applied to the vote certification because 18 USC 1512(c)(2) is limited to those proceedings for which there is some kind investigation and adjudication of evidence (like an impeachment)
  • If DOJ wanted to charge obstruction, they should have used some other part of the law (that didn’t carry a potential 20 year sentence)
  • A recent Supreme Court ruling in Yates v United States that ruled fish could not be evidence of obstruction, which pivoted largely on grammar and conjunctions, would apply to using a mob to stop a vote certification
  • January 6 rioters had no way of knowing that the vote certification counted as an official proceeding the obstruction of which would carry a felony charge
  • The same confusion about what “corruptly” means that saved John Poindexter exists here

Yesterday, Judge Dabney Friedrich denied Ronnie Sandlin and Nate DeGrave’s motion to dismiss their conspiracy to obstruct and obstruction charges. The opinion is succinct, step-by-step dismissal of each of those challenges (I’ve put the bullets above in the order she addresses them to make it easier to read along).

There are three other major efforts (by Brady Knowlton before Randolph Moss, by Proud Boy Ethan Nordean before Tim Kelly, by Thomas Caldwell before Amit Mehta in the Oath Keeper case) and a slew of other more minor efforts to overturn this application. So the viability of this application of obstruction is by no means a done deal. If any of those other judges ruled against the government, it would set off interlocutory appeals that could upend this decision.

But one judge, at least, has now sanctioned DOJ’s novel application, at least as used with these two defendants.

It’s significant that Friedrich has ruled against this motion (she’s facing a similar one from 3%er Guy Reffitt), for a number of reasons. That’s true, for one, because she’s one of four Trump appointees in the DC District. While all four are (unlike some Trump appointees on the DC Circuit or Supreme Court) quite serious judges, Friedrich is, with Trevor McFadden, one of the judges who might be more sympathetic to the Trump-supporting defendants before her.

Friedrich had also raised questions as to why DOJ hadn’t used a different clause of the obstruction statute, 1512(d)(1) that might also apply to January 6, but which carries just a three year sentence. That makes her sustained treatment of how the law works — citing a Scalia opinion that defendants have raised repeatedly — of particular interest, because it’s the question she seemed to have the most doubt about.

Indeed, § 1512(c)(2) is more akin to the omnibus clause in 18 U.S.C. § 15035 than it is to “tangible object” in § 1519. The specific provisions in § 1503 cover actions related to jurors and court officers and the omnibus clause “serves as a catchall, prohibiting persons from endeavoring to influence, obstruct, or impede the due administration of justice.” As such, it is “far more general in scope.” United States v. Aguilar, 515 U.S. 593, 598 (1995). The ejusdem generus canon does not apply to limit § 1503’s omnibus clause to acts directed at jurors and court officers, because the clause “is not a general or collective term following a list of specific items.” Aguilar, 515 U.S. at 615 (Scalia, J., concurring in part and dissenting in part) (emphasis omitted). Instead, “it is one of the several distinct and independent prohibitions contained in § 1503 that share only the word ‘Whoever,’ which begins the statute, and the penalty provision that ends it.” Id. So too here.

[snip]

Nor does the plain text of § 1512(c)(2) create “intolerable” surplusage. Aguilar, 515 U.S. at 616 (Scalia, J., concurring in part and dissenting in part). To be sure, interpreting subsection (c)(2) to include any and all obstructive, impeding, or influencing acts creates substantial overlap with the rest of § 1512, and with other provisions in Chapter 73. But the Court does not find that it creates intolerable overlap.

To start, a broad interpretation of § 1512(c)(2) does not entirely subsume numerous provisions with the chapter. For instance, § 1512(a)(1)(C), (a)(2)(C), (b)(3), and (d)(2)–(4) proscribe conduct unrelated to an “official proceeding.” Sections 1503 and 1505 prohibit obstructive acts related to the “due administration of justice” and congressional inquiries or investigations, respectively, which may have no relation to an official proceeding. Section 1513, meanwhile, prohibits retaliatory conduct that occurs after a person participates in an official proceeding. Section 1512(c)(2), on the other hand, concerns obstructive conduct that occurs either before or during such proceedings.

It is true that killing a witness to prevent his testimony at an official proceeding, see § 1512(a)(1)(A), or intimidating a person so that he withholds a record from the proceeding, see § 1512(b)(2)(A), among others, could be charged under § 1512(c)(2). But the fact that there is overlap between § 1512(c)(2) and the rest of § 1512, or other provisions in Chapter 73, is hardly remarkable; “[i]t is not unusual for a particular act to violate more than one criminal statute, and in such situations the Government may proceed under any statute that applies.” Aguilar, 515 U.S. at 616 (Scalia, J., concurring in part and dissenting in part) (internal citations omitted); see also Loughrin, 573 U.S. at 358 n.4.

In the Reffitt case, Friedrich had made DOJ provide a Bill of Particulars to explain how they understand Reffitt to have obstructed the vote certification, which was a different approach than other judges have taken. Moss and Mehta, for example, seem most concerned about limiting principles that distinguish obstruction as charged here from otherwise protected political speech (which also might give them a different basis to reject this application, particularly given that Donovan Crowl attorney Carmen Hernandez has focused on the First Amendment in the Oath Keeper case).

One other factor that makes Friedrich’s quicker decision on this issue (this challenge came before her after all the others I’ve listed as major above) interesting is that her spouse, Matthew Friedrich, was an Enron prosecutor. And — as Judge Friedrich’s opinion makes clear — Congress passed this specific clause in response to lessons learned in Enron.

In 2002, following the collapse of Enron, Congress enacted a new obstruction provision in Section 1102 of the Sarbanes-Oxley Act of 2002, Pub. L. No. 107-204, 116 Stat. 745, 807: “Tampering with a record or otherwise impeding an official proceeding.” It was codified as subsection (c) of a pre-existing statute, 18 U.S.C. § 1512. Section 1512(c), in full, states:

Whoever corruptly—

(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or

(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.

18 U.S.C. § 1512(c)(2).

[snip]

As noted, Congress enacted § 1512(c) as part of the Sarbanes-Oxley Act of 2002 following “Enron’s massive accounting fraud and revelations that the company’s outside auditor, Arthur Andersen LLP, had systematically destroyed potentially incriminating documents.” Yates, 574 U.S. at 535–36. That Congress acted due to concerns about document destruction and the integrity of investigations of corporate criminality does not define the statute’s scope. Statutes often reach beyond the principal evil that animated them. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79 (1998).

She has personal reason to know this history and the import of the statute well.

Friedrich looked to the Enron history to map how “corruptly” might apply in this case, too.

In considering the meaning of “corruptly” (or wrongfully), courts have drawn a clear distinction between lawful and unlawful conduct. In Arthur Andersen LLP v. United States, 544 U.S. 696 (2005), the Supreme Court explained, in the context of § 1512(b), that “corruptly” is “associated with wrongful, immoral, depraved, or evil.” Id. at 705 (internal quotations omitted).

[snip]

The ordinary meaning of “wrongful,” along with the judicial opinions construing it, identify a core set of conduct against which § 1512(c)(2) may be constitutionally applied—“independently criminal” conduct, North, 910 F.2d at 943 (Silberman, J., concurring in part and dissenting in part) that is “inherently malign,” Arthur Andersen, 544 U.S. at 704, and committed with the intent to obstruct an official proceeding, see Friske, 640 F.3d at 1291–92. “Corruptly” (or wrongfully) also acts to shield those who engage in lawful, innocent conduct—even when done with the intent to obstruct, impede, or influence the official proceeding—from falling within the ambit of § 1512(c)(2). See Arthur Andersen, 544 U.S. at 705–06.

All in all, this was a no-nonsense opinion that didn’t rely on distinct aspects of this case, such as that Sandlin encouraged others in the Senate to look for and seize laptops and papers, the kind of destruction of evidence that makes the question easier.

Her opinion laid out just one limiting factor, though given how DOJ has charged conspiracy to obstruct the vote certification in all the conspiracy cases, an important one. This case was easy, Friedrich suggests, because so much of what else Sandlin and DeGrave are accused was obviously illegal (even moreso than Reffitt, who didn’t enter the building and whose resistance to cops was not charged as assault).

The indictment in this case alleges obstructive acts that fall on the obviously unlawful side of the line. It alleges that the defendants obstructed and impeded the congressional proceeding to certify the election results. Superseding Indictment ¶ 37. And it further alleges that the defendants engaged in advance planning, forcibly breached the Capitol building, assaulted Capitol police officers, and encouraged others to steal laptops and paperwork from the Senate Chamber. Id. ¶¶ 15-33. This alleged conduct is both “independently criminal,” North, 910 F.2d at 943 (Silberman, J., concurring in part and dissenting in part) and “inherently malign,” Arthur Andersen, 544 U.S. at 704. And it was allegedly done with the intent to obstruct the congressional proceeding, see Friske, 640 F.3d at 1291. Assuming that the government can meet its burden at trial, which is appropriate to assume for purposes of this motion, the defendants were sufficiently on notice that they corruptly obstructed, or attempted to obstruct, an official proceeding under § 1512(c)(2).

The Court recognizes that other cases, such as those involving lawful means, see, e.g., Arthur Andersen, 544 U.S. at 703, will present closer questions.14 But the Court need not decide here what constitutes the outer contours of a “corrupt purpose.” Because the indictment alleges that the defendants used obvious criminal means with the intent to obstruct an official proceeding, their conduct falls squarely within the core coverage of “corruptly” as used in § 1512(c)(2). See Edwards, 869 F.3d at 502 (“While the corrupt-persuasion element might raise vagueness questions at the margins, the wrongdoing alleged here falls comfortably within the ambit of the statute.”). The Court will address further refinements of the definition of “corruptly” with jury instructions.

14 As courts have noted, difficult questions arise when lawful means are used with a corrupt purpose and with the intent to obstruct, influence, or impede an official proceeding. See, e.g., United States v. Doss, 630 F.3d 1181, 1189 (9th Cir. 2011); North, 910 F.2d at 943 (Silberman, J., concurring in part and dissenting in part). In Judge Silberman’s view, the purpose inquiry should focus narrowly on whether the defendant “was attempting to secure some advantage for himself or for others than was improper or not in accordance with the legal rights and duties of himself or others.” North, 910 F.2d at 944 (Silberman, J., concurring in part and dissenting in part); see also Aguilar, 515 U.S. at 616 (Scalia, J., concurring in part and dissenting in part) (the “longstanding and well-accepted meaning” of “corruptly” is “[a]n act done with an intent to give some advantage inconsistent with official duty and the rights of others”) (internal quotation marks omitted). See also United States v. Kanchanalak, 37 F. Supp. 2d 1, 4 (D.D.C. 1999) (noting that it may be too vague to require only that a defendant “act[ed] with an improper purpose”). This case, which allegedly involves unlawful means engaged in with the intent to obstruct, does not raise these challenging questions.

Whether Sandlin and DeGrave corruptly attempted to halt the vote count is easy, Friedrich suggests, because they are accused of so much else that was clearly illegal, including both trespassing and assaulting cops. Whether this application of obstruction holds for overt acts that are not, themselves illegal, will be a much harder question, but it was not one before her in this case.

This question is already before other judges though, significantly (for DOJ’s efforts to hold what I’ve termed, “organizer inciters” accountable) in the 3%er SoCal conspiracy. And, as the AUSA dealing with the legal application of all this, James Pearce, responded in yet another challenge to this application of obstruction, it goes to the core of whether this application of obstruction could be used with the former President.

At a hearing on Monday for defendant Garret Miller of Richardson, Texas, [Carl] 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.

If Trump honestly believed that Mike Pence could blow off the vote certification when he ordered him to do so on January 6, this application of obstruction would be far more problematic, as even DOJ’s expert on this application concedes. But if Trump knew the demand violated the law (or the Constitution), then it would meet the definition of “corruptly” under this application of the statute.

The entire course of the January 6 prosecution has been waiting on these decisions about DOJ’s use of obstruction. And while Friedrich’s opinion does not decide the issue, DOJ has notched one significant opinion in support for the approach they’re using. If a few other judges match her opinion, we could begin to see a wave of plea deals to felony convictions.

Update: Here’s the order Friedrich issued in Reffitt’s case, deferring the 1512 question until trial unless he gives her a good reason not to:

MINUTE ORDER. Before the Court is the defendant’s [38] Motion to Dismiss Count Two of the Indictment on multiple grounds, including that Count Two is unconstitutionally vague as applied. On a motion to dismiss, the Court “is limited to reviewing the face of the indictment,” United States v. Sunia , 643 F. Supp. 2d 51, 60 (D.D.C. 2009), and it must assume the truth of the indictment’s factual allegations, United States v. Bowdoin , 770 F. Supp. 2d 142, 149 (D.D.C. 2011). The question for the Court at this stage of the proceedings is “whether the allegations, if proven, would be sufficient to permit a jury to find that the crimes charged were committed.” Id. at 146.

A criminal statute is not unconstitutionally vague on its face unless it is “impermissibly vague in all of its applications.” Vill. of Hoffman Estates v. Flipside, Hoffman Estates , 455 U.S. 489, 497 (1982). And “[o]ne to whose conduct a statute clearly applies may not successfully challenge it for vagueness.” Parker v. Levy , 417 U.S. 733, 756 (1974). Numerous courts have rejected vagueness challenges the word corruptly as used in obstruction statutes. See, e.g., United States v. Shotts , 145 F.3d 1289, 1300 (11th Cir. 1998); United States v. Edwards, 869 F.3d 490, 50102 (7th Cir. 2017); see also Mem. Op. issued December 10, 2021 in United States v. Sandlin , 21-cr-88, Dkt. 63 (holding that § 1512(c)(2) is not unconstitutionally vague as applied to defendants who allegedly forcibly breached the Capitol and assaulted Capitol police officers with the intent to impede the official proceeding).

In contrast to the indictment at issue in Sandlin, the Indictment in this case does not allege any facts in support of the § 1512(c)(2) charge. Count Two merely alleges that Reffitt “attempted to, and did, corruptly obstruct, influence, and impede an official proceeding, that is a proceeding before Congress, specifically, Congress’s certification of the Electoral College vote as set out in the Twelfth Amendment of the Constitution of the United States and 3 U.S.C. §§ 15-18.” [34] Second Superseding Indictment at 2. The government proffers in its brief, however, that “[w]hile at the Capitol, the defendant, armed with his handgun in a holster on his waist, confronted U.S. Capitol Police officers on the west side stairs, just north of the temporary scaffolding. The defendant charged at the officers, who unsuccessfully tried to repel him with two different types of less-than-lethal projectiles before successfully halting his advances with pepper spray. The defendant encouraged other rioters to charge forward at the officers, which they did. The officers were forced to fall back, the Capitol was invaded.” [40] Gov’t Opp’n at 1. Reffitt disputes this in his briefing. [38] Def.’s Mot. to Dismiss at 13-15.

Because it is unclear, based on the indictment alone, what actions Reffitt allegedly engaged in to obstruct and impede the official proceeding, the Court cannot determine at this early stage of the proceeding whether the charges are unconstitutionally vague as applied to him. For this reason, the Court is inclined to defer ruling on his vagueness challenge until the facts have been established at trial and the jury has had an opportunity to consider that evidence. See United States v. Kettles , No. CR 3:16-00163-1, 2017 WL 2080181, at *3 (M.D. Tenn. May 15, 2017) (finding that pretrial as-applied challenge to § 1591(a) was premature because “[t]he court cannot determine the nature and extent of [defendant’s] conduct in this case and, therefore, also cannot determine whether § 1591(a) is void for vagueness as applied to that conduct”); United States v. Raniere , 384 F. Supp. 3d 282, 320 (E.D.N.Y. 2019).

Accordingly, the defendant is directed to file, on or before December 15, 2021, a supplemental brief of no more than 5 pages in length explaining why the Court should not defer ruling on his motion until the evidence has been presented at trial. Upon review of the defendant’s supplemental brief, the Court will consider whether a response from the government is necessary.

237 Days: Cooperation in Criminal Investigations Takes a Long Time

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Earlier this week, I pointed out that the complaints about Merrick Garland’s approach to the January 6 investigation simply don’t account for how long competent investigations take. On Twitter, I noted that it took almost a full year after the Russian investigation was opened for George Papadopoulos to be arrested and another two months before he pled guilty, making 14 months for a simple false statements charge in a lightning fast investigation. With a purported cooperator like Mike Flynn, it took 15 months to plead guilty and another year for the cooperation, and that, again, was considered lightning fast (and was assisted by the criminal exposure Flynn had for secretly working for Turkey).

In the January 6 investigation, prosecutors got their first public cooperating witness on April 16, when Jon Schaffer entered into a cooperation agreement. Since then, four additional Oath Keepers (Graydon Young on June 23, Mark Grods on June 30, Caleb Berry on July 20, and Jason Dolan on September 15), Josiah Colt (on July 14), and Klete Keller (on September 29; and no, I have no clue against whom he’d be cooperating) also publicly entered into cooperation agreements. That’s what DOJ has formally revealed, though there are several cases where the government clearly has gotten cooperation from other defendants, but hasn’t shared that formally.

But even with cooperators, investigations take time. There are three recent developments that provide a sense of how time-consuming that is.

Jon Schaffer’s still unresolved cooperation

As I previously noted, the four main Oath Keeper cooperators have a harmonized status deadline for December 17. I had been waiting to see whether Jon Schaffer, who has ties to the Oath Keepers and communications with whom were noticed to Oath Keeper defendants, would be put on that same reporting schedule.

He hasn’t been.

In fact, a recent status report in his case suggests the main Oath Keeper conspiracy may not be the primary focus of his cooperation. That’s because two details in it are totally inconsistent with the progress of the Oath Keeper case.

Multiple defendants charged in the case in which the Defendant is cooperating have been presented before the Court; several are in the process of exploring case resolutions and a trial date has yet to be set.

As Judge Mehta well knows, four of the Oath Keepers already have “explor[ed] case resolutions.” And Mehta has set the first trial date for April 19, 2022.

So unless Schaffer’s attorney is entirely in error, it seems there’s some other multiple defendant case in which Schaffer is cooperating.

Swedish Scarf still at large?

Earlier this month, Gina Bisignano may have pushed the government to indict a conspiracy in which she’s a key witness earlier than they might have.

On November 4, she filed a motion to modify her release conditions, to get out of home arrest so she can try to salvage her salon business. In it, her lawyers revealed that back in July, Bisignano had entered into a sealed plea agreement.

10. On July 28, 2021, Defendant signed a plea agreement in the above captioned case UNDER SEAL.

11. On August 4, 2021, Defendant appeared before this Court and entered a guilty plea in the above captioned case, UNDER SEAL, to multiple counts of the indictment.

12. On September 16, 2021, a Zoom hearing was held before this Court, and Your Honor advised that you would entertain the Defendant’s motion in three (3) weeks to see whether the Defendant had any infractions during that time.

The only reason to seal the plea would be to hide a cooperation component.

There has long been chatter about a conspiracy indictment against members of the Southern California anti-mask community that traveled to the insurrection together. In response to Amy Berman Jackson’s questions about why Danny Rodriguez was not charged with three other defendants for assaulting Michael Fanone, prosecutors kept giving her vague answers for months, until they filed what must have been a sealed update on November 5. And a transcript of Rodriguez’ FBI interview at least suggested that the FBI had spoken to Bisignano before Rodriguez’ March 31 interview.

Is there any reason why Gina would tell us that you told her not to say anything to — about you being at the Capitol?

Videos of this interview, which are engaging TV, are here.

In mid-November, the government finally rolled out the long-awaited conspiracy indictment, which was more narrowly tailored than originally expected, charging Rodriguez, his estranged friend Ed Badalian, and someone referred to in the online community as “Swedish Scarf,” but whose identity remains sealed. The indictment charges two objects of the conspiracy: to halt the vote count on January 6, but also to “mutilate or destroy photographs and videos taken by” Bisignano (who is referred to as Person One in the indictment).

But there’s still no sign of an arrest of Swedish Scarf.

That could mean several things, one of which is that he’s on the lam.

The minute order from Judge Carl Nichols granting Bisignano some but not all of the release conditions she requested revealed that the government opposition to that request, which was due on November 24 (and so after the indictment against Badalian was unsealed) remains sealed.

There’s something else going on with this case. What, it is not entirely clear.

That said, what the public record suggests is that Bisignano had at least one interview prior to March 31, she pled guilty in August, but it still took three more months to obtain the indictment against Badalian and Swedish scarf.

Indicting a cop for fun and probation

Meanwhile the sentencing memos (government, defense) for Jacob Hiles reveal that not all cooperation comes with a cooperation agreement.

As the government describes, Hiles’ actions on January 6 include a number of the factors that would normally lead them to ask for a sentence including jail time: calls for revolution in advance, mockery of police efforts to defend the Capitol, and long boasts posted to Facebook after the fact.

But those Facebook posts play a key role in a more important prosecution, that of former Capitol Police Officer Michael Riley, who friended Hiles on Facebook before the insurrection and tried to protect him afterwards. After they first initiated contact, Riley warned Hiles to delete his posts, but he did not.

On January 7, 2021, a sworn U.S. Capitol police officer, Michael Angelo Riley, sent the defendant a private direct message on Facebook—the first message between the two, who had never met but shared an avid interest in fishing. The message stated as follows:

“Hey Jake, im a capitol police officer who agrees with your political stance. Take down the part about being in the building they are currently investigating and everyone who was in the building is going to be charged. Just looking out!”

Hiles responded to this message with a shorter version of the narratives posted on his public page and detailed above. He further stated, in part, “Investigate me however youd like and thank you for the heads up. . . . If what I did needs further investigation, I will gladly testify to this. There are some people who were violent. They attacked officers. They destroyed property. They should be fully prosecuted.”2 In the course of an extended conversation that ensued between the two, Hiles also said, “I don’t think I did anything wrong at all yesterday and I am very sorry things turned out the way that they did. I dont like the way that a few bad apples in a massive crowd are making the entire crowd be portrayed as violent terrorists,” and “I think when the fbi gets to investigating, they will find that these terroristic acts were committed in false flag attacks by leftists.”

The government’s investigation revealed that these communications between Riley and the defendant had been deleted by Riley, but not by the defendant, from whose Facebook account they were recovered. The communications included further corrupt conduct by Riley, as detailed in part in the Indictment, ECF No. 1, in United States v. Michael Angelo Riley, 21-CR-628 (ABJ). Indeed, according to Hiles, and consistent with the evidence recovered in the government’s investigation of Michael Riley, Hiles deleted no information in response to Riley’s suggestion that he do so.

And when FBI Agents interviewed Hiles after they arrested him on January 19, he told them enough about his contact with Riley such that they knew to look for those communications once they exploited his phone. That led to another interview and, ultimately, to the indictment of Riley.

Hiles further indicated that following the riot he had become friends with a Capitol police officer, although he did not at that time describe the content of then-Officer Riley’s initial contact. Later, a search of Hiles’ cell phone revealed a screenshot of the Facebook message detailed in the government’s Sentencing Memorandum from Riley to Hiles on January 7, 2021. Upon discovery of the message, the government requested through counsel that Hiles participate in a debrief with prosecutors and federal agents. Through counsel, Hiles agreed to do so and appeared for the debrief (held virtually) within 24 hours, and with no promise of any benefit from or agreement of any kind with the government.3

After his initial interview, Hiles told Riley that the FBI had expressed an interest in their communications. That led Riley to delete his own Facebook communications with Hiles.

15. RILEY and Person 1 continued to exchange friendly messages until January 20, 2021. On that date, Person 1 sente RILEY Facebook direct messages regarding having turned himself in to the FBI, including telling RILEY, “The fbi was very curious that I ha been speaking to you if they havent already asked you about me they are gonna. They took my phone and downloaded everything.” RILEY responded, “Thats fine”.

16. On January 20, 2021, RILEY deleted all his Facebook direct messages to and from Person 1.

Because of this cooperation against Riley (and because he offered up that he had gone to insurrection with his cousin, James Horning, who was arrested on obstruction and trespassing charges a month later), the government recommended probation.

Indeed, without the defendant’s significant, useful assistance to the government with respect to two felony prosecutions, the factors would require the government to recommend a sentence involving incarceration. Yet, upon consideration of the defendant’s exceptional cooperation with the government, the scale tips in favor of probation.

Hiles is due to be sentenced on Monday.

Hiles’ role in the prosecution of Riley is instructive for several reasons. First, these misdemeanants are not just defendants, but they are all witnesses to a crime. And some of them are going to provide important testimony without the formal trappings of a cooperation plea those indicted with felonies would have (even assuming those cooperation pleas were made public).

But the Hiles sentencing also gives a sense of the time necessarily involved. Riley’s indictment reveals how long even simple cooperation prosecutions can take. While union protections and internal investigations probably delayed things somewhat, it still took over 235 days between when the FBI first learned of Hiles’ communications with Riley and Riley’s arrest.

That’s for a cop. You can be sure it would take longer to indict those close to Donald Trump, even assuming the FBI has identified cooperators with useful testimony directly pertaining to those in Trump’s orbit, rather than identified those once or twice removed from Trump’s closest aides.

The government is getting more cooperation from January 6 defendants and witnesses than is publicly admitted. But that doesn’t mean we’ll see the fruit of such cooperation anytime soon.

Update, December 23: Adding the cooperation agreements for Gina Bisignano (August 4) and Matthew Greene (December 22).

What is the appropriate sanction for a “pawn” who participated in a coup attempt?

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One thing I informally track in January 6 guilty pleas is education level. At the beginning of most change of plea hearings, as part of an effort to substantiate competence to plead guilty, most judges ask, “How far did you go in school?” I first started to take note when Oath Keeper Graydon Young replied that he has a graduate degree. He’s a dramatic outlier. Since then, my very informal tracking of this detail has shown that very very few of the January 6 defendants who’ve pled guilty so far have a four year degree (others who do include but are not limited to Cleveland Meredith Jr, Jenna Ryan, and Andrew Ericson, the latter of whom finished a CompSci degree since the riot).

I track this demographic not out of intellectual snobbery. I know of some absolutely brilliant people who didn’t finish school (a close family member has been very successful without finishing college, and a good number of the smartest students in the 600 student high school class of which I was valedictorian dropped out short of graduation).

Rather, it’s that based on this unscientific observation, the January 6 defendants who’ve pled guilty are, demographically, dramatically less likely to have a four-year degree than the US population, closer to 10% (perhaps 8 of the 96 people who’ve pled guilty) than the 36% that one might expect of the population more broadly. To be sure, this is not scientific. At least two DC judges don’t ask this question, and my count reflects only those hearings where I was personally listening or another journalist who has become aware of my focus on it has noted it. Plus, there may be reasons why people with less education plead guilty earlier, such as that more of them make up those charged with misdemeanor trespassing. But even Brandon Straka, one of the leaders of the larger Trump movement, described that he went through 12th grade and then got a vocational degree at his change of plea.

January 6 defendants seem disproportionately white and rural, but they also appear to be less educated than the country as a whole, even those who’ve had a good deal of financial success.

I raise all that as background to the sentencing memo for Jack Griffith submitted overnight by Heather Shaner, the same defense attorney who convinced Anna Morgan-Lloyd to do some book reports before sentencing (after which Morgan-Lloyd went straight to Fox News to disclaim her stated remorse).

Shaner doesn’t really address the government’s request for a three month jail term.

Griffith pled guilty to one count of 40 U.S.C. § 5104(e)(2)(G): Parading, Demonstrating, or Picketing in the Capitol Building. As explained below, a custodial sentence is appropriate in this case because Griffith committed his January 6th crime in a manner that trivialized the severity  of the chaotic and dangerous attack, and his later self-promotion and commentary about his participation in the riot demonstrates continued pride in his actions. Griffith had many opportunities to remove himself from the disorder of January 6th but was all too happy to continue his participation. Following his arrest, his casual attitude toward these criminal proceedings demonstrated a lack of respect for this Court—worrying only that he did not want to appear too “cocky” that it was all going to go well for him. By minimizing the seriousness of his conduct, Griffith fails to recognize the harm he caused to his country, the law enforcement officers who were trying to defend it, and others who were working at the Capitol to carry out a Constitutionally mandated process for the peaceful transfer of power

Instead, Shaner focused on what the January 6 riot was, describing it as a coup attempt fomented by people who deliberately manipulated people online.

What occurred on January 6, 2021 was not a naturally developed political protest. It was, I believe, a coup attempt–fomented intentionally by right wing actors who used data mining and psychological manipulation. Vulnerable individuals were identified and persuaded through the internet that it was their patriotic duty to come to Washington to support Trump. In Washington, they were emboldened and ushered down the avenue to “Stop the Steal” and to storm the Capitol.

It is fitting and appropriate to arrest those who participated in the attempted coup. The difficult question is what is the appropriate sanction for a pawn who personally did no physical damage nor assaulted law enforcement– but nonetheless participated in the riot. As Fiona Hill recently stated the “main threats” to democracy come from right-wing actors who are deliberately undermining faith in the “integrity of the election system” and “calling for violence against fellow Americans.” Among the thousands who came to Washington in January and have since been arrested– few among the arrested are the people described by Ambassador Hill. Of the several individuals I have been appointed to represent—none are informed, intentional political actors. Four of the individuals I represent are very young—were heavily reliant on the internet—were uniformed and misinformed. Two individuals suffer from diagnosed mental diseases. The balance of individuals I have come to know and to respect are vulnerable, politically unsophisticated individuals, who are truly confounded by what is happening in our country. Good people with no criminal history—our neighbors– who were fed cynical and dangerous misinformation which destroyed their faith in the integrity of the election system. People who wrongly believed they could save America.

I think Shaner’s description of the event is sound. But I’m not sure she, or anyone, knows the answer to her question: What we do about pawns mobilized for a coup attempt, particularly in the absence of any accountability (yet) for the more powerful coup plotters.

Shaner argues that probation is appropriate for Griffith for two reasons. First, to avoid making a martyr of him.

We should not make pariahs or martyrs of these men and women.

But also to provide a period in which more education can occur.

To save our Union we must be wise. We must be compassionate. We must listen. We must provide the opportunity for the approximately 550 charged misdemeanants to receive more education, and to encourage each of them to study history and to gain civic literacy. Only knowledge—truth based on facts– can foster change. At this critical moment of civil discord and domestic contention –if it is still possible to create a more perfect Union –it must be through education. We cannot force people to learn. But during Probation, we can provide the impetus and the opportunity of continuing education.

This is an argument not about Jack Griffith (and because she’s pitching this to Chief Judge Beryl Howell, who asked with this defendant why DOJ hadn’t charged him more aggressively, it’s unlikely to work). It’s an argument about what the path forward needs to be.

Few people besides Shaner think probation can accomplish what she envisions here (though a three year term of probation will keep defendants supervised and prohibited from owning guns through the next Presidential election). Indeed, the two judges imposing most disparate sentences for trespassers so far, Tanya Chutkan (who has sentenced two trespassers, including Anna Morgan-Lloyd’s buddy, Dona Bissey, to jail terms in the last week), and Trevor McFadden (who has sentenced defendants to far shorter terms of probation than the government asked for, though with extra on top) have come out against probation for these defendants. Chutkan believes Probation is simply too overtaxed to deal with the influx of all these trespassers. McFadden seems to believe what he sees as a debt to society can better be paid through a fine (he imposed the only fine thus far on Danielle Doyle) or community service (which he imposed on Eliel Rosa); McFadden also believes that January 6 defendants are being treated more harshly than other rioters.

Meanwhile, in the case of Robert Reeder, who was first charged with trespassing then, at the last minute, discovered to have assaulted a cop and downplayed that to the FBI, got sentenced to just three months in jail by Thomas Hogan, rather than the six months prosecutors requested rather than charging him with that assault.

I don’t know the answer to Shaner’s question. And I badly wish that Prettyman Courthouse were fully open so I could assume that judges were hashing this out over lunch in their judge’s lunchroom. I know that there are a significant portion of defendants who really were just engaged in the kind of civil disobedience I don’t want criminalized. Though I also know that as DOJ has pushed to move through the misdemeanors and accepted downward pleas from those charged more seriously for a variety of reasons, it has fostered seeming inequities among the growing group of trespassers being sentenced.

Whether or not Shaner is right about Griffith, she’s right about what happened: Coup plotters used conspiracy theories to mobilize thousands, as if in a cult, to storm the Capitol. We need deprogramming as much as we need jail time. And our criminal justice system is probably ill-suited to provide either.

Felipe Marquez’ Plugged-In Misdemeanor Guilty Plea

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Seven January 6 defendants are known to have pled guilty on Friday:

  • (Reportedly, though it hasn’t been docketed yet) Terry Brown, the last of a group of people arrested in the Capitol Visitor’s Center the day of the riot to plead out
  • Brandon Harrison and Douglas Wangler, who traveled to DC from Illinois together and, after Trump’s rally, walked to the Capitol and entered the East door after the Oath Keepers had already done so; they saw a pile of wood on the floor when they entered
  • Brandon and Stephanie Miller, an Ohio couple who bragged about witnessing history on Facebook
  • Cleveland Meredith Jr, who showed up — armed, but late — to insurrection but made credible threats against Nancy Pelosi (and did something else that remains sealed)
  • Felipe Marquez, who drove his Tesla Model 3 from Miami and claimed while inside the Capitol that, “we only broke some windows”

The Meredith plea — the only one that wasn’t a misdemeanor trespassing plea — was pretty interesting because his prosecutors still haven’t revealed the substance of some sealed filings that will be taken into consideration at sentencing. Plus, Judge Amy Berman Jackson, who was threatened by Roger Stone and some Proud Boys two years before they teamed up to set off an attack on the Capitol, seemed unimpressed with Meredith’s claims that his threats against Pelosi weren’t all that serious.

But the Marquez plea may be more interesting over time. At the very least, that’s because he may mark a decision by DOJ to let edge obstruction defendants plead down to 18 USC 1752, the more serious of the two misdemeanor trespassing charges.

As I’ve laid out repeatedly, DOJ has used 18 USC 1512(c)(2), part of the crime of obstruction, to charge those who allegedly expressed the clear intent to prevent the vote certification with a felony. Upwards of 200 people, total, have been charged with obstruction, including Marquez. But among those charged with obstruction, there’s a great range of actions taken on January 6. Those charged include those who participated in a conspiracy — like Graydon Young and Josiah Colt, Jacob Chansley, who left ominous comments for Mike Pence on his dais seat and blew off repeated orders to vacate the Senate Chamber, and Paul Hodgkins, who brought his Trump flag to the Senate floor but left when the cops instructed him to.

I laid out here how Hodgkins, after he was the first to plead guilty, was sentenced to 8 months in prison after getting a three level enhancement for significantly obstructing the vote certification. But since that happened, at least ten different defendants have challenged this application of obstruction, posing difficult decisions for a number of judges.

Indeed, in the last several days, a number of defendants charged with obstruction have explicitly waived Speedy Trial rights to await the outcome of these challenges. That’s going to create a backlog in the already enormous logjam of January 6 defendants.

So I wonder whether DOJ will begin let the edge 1512 cases plead down to 1752. Particularly given judges’ apparent willingness to jail the misdemeanor defendants, for defendants not given a “significant obstruction” enhancement like Hodgkins got, the sentencing guideline is not that different, with up to a year available under 1752 (and probation after that), versus a range of 8 to 14 months on obstruction (that in reality might be closer to 3 to 8 months). The primary (but nevertheless significant) difference would be the felony conviction.

To be clear, Marquez is not the first to plead down like this. Eliel Rosa pled to the less serious trespass charge, 40 USC 5104 after being charged with obstruction, but there may have been evidentiary reasons DOJ agreed to do that, and as an immigrant from Brazil, he risks deportation after his sentence in any case. Karl Dresch was charged with obstruction but pled to 5104 after serving six months in pre-trial confinement. Kevin Cordon, who was charged with obstruction but pled guilty at the same time as his brother — who was charged only with trespassing — pled to 1752 instead of obstruction, just like Marquez did.

In other words, in cases where there are other circumstances that make such a plea worthwhile to DOJ, they’re certainly willing to consider it.

Still, it’s possible that Marquez represents a shift on DOJ’s part to do that for more defendants, as part of an effort to avoid a big backlog pending the review of the 1512 charge.

Or, maybe not.

There were several other details of Marquez’ plea hearing of interest. The hearing started by talking about some kind of pretrial violation (possibly some kind of non-arrest run-in with law enforcement), which led to two new conditions being added to Marquez’s release, a mental health evaluation and a specific requirement to alert the government of any contact with law enforcement. That’s not how plea hearings usually start, but AUSA Jeffrey Nestler reaffirmed that DOJ wanted to go forward anyway. Judge Rudolph Contreras even asked whether the request for mental health evaluation raised questions about Marquez’ competency to plead guilty, though neither his attorney, Cara Halverson, nor Nestler, had any concerns about that.

Nestler, by the way, is one of the key prosecutors on the omnibus Oath Keeper case, and ably defended DOJ’s application of obstruction in that case in a hearing on Wednesday. Aside from that large group and cooperating Oath Keeper witness Caleb Berry, the only other January 6 case, besides Marquez’, that he is prosecuting is that of Guy Reffitt, who has ties to the 3%ers.

In addition to the oddities in Marquez’ plea hearing, there’s something not in his plea agreement that is standard boilerplate for all the plea agreements thus far: a cooperation paragraph. That paragraph is not a full cooperation agreement; rather, it simply requires the defendant to agree to be debriefed by the FBI. Here’s how it appears in Cordon’s plea agreement down from obstruction to 1752.

Your client agrees to allow law enforcement agents to review any social media accounts operated by your client for statements and postings in and around January 6, 2021, and conduct an interview of your client regarding the events in and around January 6, 2021 prior to sentencing.

Its absence suggests that Marquez has already been debriefed. Indeed, an April motion to continue the case described that the evidence against Marquez included, “social media data, cell phone extraction data, as well as custodial interview files,” suggesting he was interviewed on his arrest.

That Marquez may have already provided truthful information is of interest because he spent part of the riot in Jeff Merkley’s office. His statement of offense describes his actions there obliquely:

While inside the Capitol, Marquez entered the private “hideaway” office of Senator Merkley where he sat at a conference table with other rioters.

His arrest affidavit describes a video Marquez posted to Snapchat from his time there.

3:45 to 4:11 – This clip is from inside a conference room.2 Several people are seated and standing around a mahogany table. Some people say, “No stealing; don’t steal anything.” At 4:02, a hand is visible, holding a light-tan colored vape pen similar to the one MARQUEZ was holding in the car in the clip from 0:54 to 1:54. At 4:04, someone pushes over a table lamp and says, “Why would I want to steal this bullshit.”

4:11 to 4:20 (end) – In this clip MARQUEZ turns the camera lens to film himself. He is wearing a red “KEEP AMERICA GREAT” hat and has a yellow gaiter around his neck, similar to what he was wearing in the earlier clip from 0:54 to 1:54. MARQUEZ appears to still be indoors, with a distinctive blue piece of artwork – the same as seen in Senator Merkley’s hideaway office – on the wall behind him. This is a screenshot of MARQUEZ’s face from the video:

2 Based upon conversations with representatives of the United States Capitol Police, the conference room in which MARQUEZ is present appears to be Senate room S140, the private “hideaway” office of Senator Merkley within the U.S. Capitol. The artwork visible on the walls of the conference room in MARQUEZ’s Snapchat video is also visible on a video that Senator Merkley posted to Twitter on January 6, 2021, at 11:36 pm, documenting some of the damage to his office.

Still, none of these descriptions reveals what Marquez might have seen (and subsequently shared) while in Merkley’s office.

Presumably partly because there’s little to no security footage of what went down, the investigation into what happened in Merkley’s office is one of the most interesting subplots of the investigation. There have been a number of trespassers who seem to have been arrested just to get their footage of what happened.  There’s a defendant who has never been charged who was, nevertheless, given discovery on the laptop that got stolen from Merkley’s office. And in the last few weeks, Brandon Fellows (who like Marquez has been charged with just obstruction but spent time in Merkley’s office) got a CIPA notice, meaning the government wants to use classified evidence against him.

In short, we simply don’t know. There’s something interesting about this plea. But it’s unclear what that is.