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

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

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

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

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

And so they got limited conspiracy convictions.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Former Secret Cooperator Enrique Tarrio Reveals a Secret Cooperation Deal

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 Additional Complexities of the Proud Boy Sedition Case

Some weeks ago, someone involved in the Proud Boy case emailed me a personal invitation to the Proud Boy leader trial later this year: “please accept my invitation to come report on the proceedings in person.  In my opinion, it will prove far more interesting than the OK trial.” It had been a long time since I had heard from this person — since I warned him, for a second time, I would not treat his emails to me as presumptively off the record, because by then the frequency of them and the conflicts between what he said about the First Amendment publicly and what he said to me on emails had become newsworthy in and of itself.

I have no intention of traveling to DC for the Proud Boy trial. Like the Oath Keeper one, there will be scores of journalists who are very familiar with the case who will do great live coverage. I would add little, if anything.

But this person’s promise that the trial will be more interesting than the Oath Keeper one is a sound prediction. To be clear: I think the evidence shows that the Proud Boys are far more complicit in the attack on democracy on January 6 than the Oath Keepers, who were mostly whack right wingers with delusions of grandeur. But I also recognize that the Proud Boy case has been far more difficult for DOJ to put together than the Oath Keeper one, in significant part because they have been more successful at cultivating authoritarian law enforcement that likes their mob culture.

Remember, several Proud Boys, including Tarrio, worked with Roger Stone to threaten Amy Berman Jackson and Bill Barr’s DOJ treated it as a mere legal technicality. The Proud Boys got sanction, as a mob, from the President’s own mouth, which had ripple effects throughout government on the way they were treated.

So I wanted to look at three indications of the difficulties the Proud Boy prosecution may face that the Oath Keeper prosecutors did not.

Delayed phone exploitation

First, in a hearing yesterday in the case against five men who were co-travellers with Joe Biggs the day of the attack, prosecutor Nadia Moore mentioned that she had just provided the “scoped” phones from (I think) Paul Rae and Eddie George — “scoped” is what they call it when the FBI pulls out the things that are responsive to a warrant. That’s a fairly shocking delay in exploiting their phones. Rae was arrested on March 24, 2021 and George was arrested on July 15, 2021. But it’s true that a May discovery index from the Proud Boy leader case only shows a scoped LG Tablet from George, with no scoped phone listed for either (though there is a phone video from Rae listed).

It may well be that — like Enrique Tarrio — they had really complex passwords on their phone. It took over a year to exploit the content of his phone, even though it was seized before January 6. There appear to be others, too, whose phones were not yet exploited in May.

Aside from a delay in the scoping of Stewart Rhodes’ phone due to the volume of encrypted texts on it and a privilege review holding up the exploitation of Kellye SoRelle’s phone, there were no known similar delays on the Oath Keeper side.

Complicit FBI and law enforcement

While the Oath Keepers, like the Proud Boys, intentionally recruit law enforcement, the Proud Boys have been better at co-opting cops. Around five of the charged Proud Boys were former or still cops when charged. Tarrio had been a formal informant during a prior criminal prosecution. And several other members of the Proud Boys, including Joe Biggs, provided information to the FBI about what they claimed were Antifa.

Biggs described his own relationship with the FBI this way:

By late 2018, Biggs also started to get “cautionary” phone calls from FBI agents located in Jacksonville and Daytona Beach inquiring about what Biggs meant by something politically or culturally provocative he had said on the air or on social media concerning a national issue, political parties, the Proud Boys, Antifa or other groups. Biggs regularly satisfied FBI personnel with his answers. He also stayed in touch with a number of FBI agents in and out of Florida. In late July 2020, an FBI Special Agent out of the Daytona Beach area telephoned Biggs and asked Biggs to meet with him and another FBI agent at a local restaurant. Biggs agreed. Biggs learned after he travelled to the restaurant that the purpose of the meeting was to determine if Biggs could share information about Antifa networks operating in Florida and elsewhere. They wanted to know what Biggs was “seeing on the ground.” Biggs did have information about Antifa in Florida and Antifa networks in other parts of the United States. He agreed to share the information. The three met for approximately two hours. After the meeting, Biggs stayed in touch with the agent who had called him originally to set up the meeting. He answered follow-up questions in a series of several phone calls over the next few weeks. They spoke often.

This is the same office where an FBI Agent, in August, refused to participate in the arrest of militia-associated men who planned to bring weapons to January 6. The agent then ran to Chuck Grassley and Ron Johnson, bitching, after his clearance was suspended because he didn’t like the way FBI was running domestic terrorism investigations.

The single FBI informant known to have been present on January 6 appears not to have told his handlers about a meeting he was at the night before where using violence was discussed. And so DOJ has given two members of the Kansas City Proud Boy cell who were with him — Ryan Ashlock and Louis Colon — unbelievably sweet plea deals, I suspect to sustain the rest of the cases against the Proud Boys.

Both Tarrio and Biggs have made specific requests for their own communications with law enforcement — in Tarrio’s case, he claims it is Brady material. That is, they plan to argue they couldn’t be guilty of plotting against the government because they’ve been so chummy with often right wing authoritarian cops in the past.

Witness backsliding

The Proud Boys have also been very good at pressuring witnesses not to testify against the mob. It had seemed that Ryan Samsel might enter into a plea deal describing what transpired between him and Biggs right before he kicked off the entire riot, for example, until Samsel was assaulted in still unexplained circumstances at the DC jail. Zach Rehl seemed like he was considering a plea deal until Tarrio called Rehl’s wife about it.

Jeff Finley, who was a co-traveller of Rehl’s, seems like he cooperated his way into a misdemeanor plea deal (like Brandon Straka is known to have), but in a July request for a four-month continuance, the government seemed to suggest they weren’t sure how complicit Finley was.

The government requests this continuance to allow time for the parties to fully evaluate the nature and seriousness of the defendant’s misconduct and for the parties to prepare a full and complete allocution to assist this Court in its sentencing.

All this is background to the Jeremy Bertino plea rolled out yesterday. Bertino was a high level Proud Boy who, because he was injured in a December 12 brawl, was not present on January 6, but was closely involved in discussions in advance of it.

Bertino’s possible arrest has been anticipated for months. A misdemeanor docket for Bertino was briefly unsealed on September 15 but then sealed. Yesterday, he pled guilty to one count of seditious conspiracy and one count of unlawful weapons possession for a small arsenal he had in spite of a past felony conviction. He is, as everyone (including me) has reported, the first Proud Boy to plead to seditious conspiracy. And he’s another participant in key leadership discussions in advance of the attack.

His statement of offense, however, leads me to wonder whether he didn’t get this plea deal in part to keep Charles Donohoe — who like Bertino is from North Carolina, and who pled guilty to obstruction and assault in April — from backsliding as a cooperator.

Most of the new details the SOO provides focus on 2020, describing how the Proud Boys radicalized in late 2020 and emphasizing the import of the December 12, 2020 confrontations, including explicit discussions about using Tarrio’s anticipated arrest to rile people up against the cops. The description of changing attitudes about the cops (something that has featured in Proud Boy indictments from the start) may serve to combat Tarrio and Biggs’ efforts to claim chumminess with the cops.

Bertino further understood that due to a number of negative interactions with law enforcement, including the events of December 12, the Proud Boys increasingly viewed police as the enemy and Proud Boy members increasingly referred to the police as “coptifa,” meaning that they viewed the police as siding with Antifa.

The SOO explains that Bertino did not know what plan Biggs and Nordean came up with at a still unexplained meeting around 9PM on January 5. A very similar paragraph appears in Donohoe’s statement of offense.

What I’m most surprised about is who it includes and who it excludes: The SOO names Donohoe at least twelve times — sworn statements implicating Donohoe in events, many of which he himself admitted to in his own SOO. That shouldn’t be necessary for a cooperating witness (though because they were both in the Carolinas, the two men would have worked closely together). While it mentions Person-3, whom Alan Feuer has identified as John Stewart, it does not name Aaron Wolkind at all, referred to frequently in earlier Proud Boy materials as Person-2. With the exception of Person-3 (who is not yet charged), the focus is entirely on those already charged in the leaders conspiracy, not any other Proud Boys.

It is undoubtedly an important step to get a plea to sedition from someone who wasn’t even present the day of the attack. But that doesn’t alleviate the many things that make this case more complex than the Oath Keeper one.

Big Criminal Justice News — and Not So Big Criminal Justice Not News

Joe Biden just pardoned everyone convicted at the federal level of simple marijuana possession, while encouraging Governors to follow suit.

Proud Boy Jeremy Bertino just pled guilty to seditious conspiracy and weapons possession. (Here’s the statement of offense.)

And … far less interestingly, but noting for the record, FBI agents trying to force David Weiss to indict Hunter Biden leaked to Devlin Barrett just like FBI agents trying to harm Hillary Clinton leaked to Devlin Barrett in 2016.

Back to the stuff that matters. Bertino will be a witness not just against Enrique Tarrio and Joe Biggs, but also against Roger Stone (this plea happened as yet more testimony implicating Stone was introduced into the Oath Keeper’s trial). DOJ now has both seditious conspiracy trials focused on the former reality TV show host’s rat-fucker.

And my goodness, the marijuana pardon will positive affect almost as many lives as the student loan forgiveness (But See Ravenclaw’s correction here).

Why January 6 Committee Transcripts Are Urgent: Proud Boy Jeremy Bertino

On June 6, DOJ charged the Proud Boy Leaders with sedition. As I noted at the time, the single solitary new overt act described in the indictment involved Jeremy Bertino, Person-1, seeming to have advance knowledge of a plan to occupy the Capitol.

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

Just days earlier, as part of a discovery dispute, prosecutors had provided this (dated) discovery index. For several reasons, it’s likely that at least some these entries pertain to Bertino, because the CE ones are from the Charlotte office, close to where he lives, because he’s one of the three uncharged co-conspirators of central importance to the Proud Boys efforts, and because we know FBI did searches on him.

In a hearing during the day on June 9, the Proud Boys’ attorneys accused DOJ of improperly coordinating with the January 6 Committee and improperly mixing politics and criminal justice by charging sedition just before the hearings start. In the hearing there was an extensive and repeated discussion of the deposition transcripts from the committee investigation. AUSA Jason McCullough described that there had been significant engagement on depositions, but that the January 6 Committee wouldn’t share them. As far as he knew, the Committee said they would release them in September, which would be in the middle of the trial. Joe Biggs’ attorney insisted that DOJ had the transcripts, and that they had to get them to defendants.

Judge Tim Kelly ordered prosecutors that, if they come into possession of the transcripts, they turn them over within 24 hours.

Hours later, during the first (technically, second) January 6 Committee hearing, the Committee included a clip from Bertino describing how membership in the Proud Boys had tripled in response to Trump’s “Stand Back and Stand By” comment.

His cooperation with the Committee was not public knowledge. I have no idea whether it was a surprise to DOJ, but if it was, it presented the possibility that, in the guise of cooperating, Bertino had just endangered the Proud Boy sedition prosecution (which wouldn’t be the first time that “cooperative” Proud Boys proved, instead, to be fabricators). At the very least, it meant his deposition raised the stakes on his transcript considerably, because DOJ chose not to charge him in that sedition conspiracy.

Today, in response to a bid by Dominic Pezzola and Joe Biggs to continue the trial until December, DOJ acceded if all defendants agree (Ethan Nordean won’t do so unless he is released from jail). With it they included a letter they sent yesterday to the Committee — following up on one they sent in April — talking about the urgency with which they need deposition transcripts.

We note that the Select Committee to Investigate the January 6th Attack on the United States Capitol (“Select Committee”) in its June 9, 2022 and June 13, 2022, hearings extensively quoted from our filings in active litigation and played portions of interviews the Select Committee conducted of individuals who have been charged by the Department in connection with the January 6th Attack on the United States Capitol.

It is now readily apparent that the interviews the Select Committee conducted are not just potentially relevant to our overall criminal investigations, but are likely relevant to specific prosecutions that have already commenced. Given this overlap, it is critical that the Select Committee provide us with copies of the transcripts of all its witness interviews. As you are aware, grand jury investigations are not public and thus the Select Committee does not and will not know the identity of all the witnesses who have information relevant to the Department’s ongoing criminal investigations. Moreover, it is critical that the Department be able to evaluate the credibility of witnesses who have provided statements to multiple governmental entities in assessing the strength of any potential criminal prosecutions and to ensure that all relevant evidence is considered during the criminal investigations. We cannot be sure that all relevant evidence has been considered without access to the transcripts that are uniquely within the Select Committee’s possession.

The discovery deadline for the Proud Boy case is tomorrow. If DOJ put Bertino before a grand jury and he said something that conflicts with what he told the Committee, it could doom his reliability as a witness, and with it the Proud Boys case, and with it, potentially, the conspiracy case against Trump.

The fact that Matt Olsen, National Security Division head, is on this letter suggests the concern pertains to the militias (and, indeed, the charged militia witnesses who appeared were Tarrio and Stewart Rhodes). Similarly, Nick Quested’s testimony may be inconsistent with other information DOJ has obtained.

Some pundits who’ve never done any original reporting on the topic claimed upon seeing this letter that it’s proof DOJ has been “twiddling its thumbs” while the Jan6 Committee has been doing all the work.

They’re saying that, though, when DOJ fairly explicitly said that grand juries have interviewed witnesses that Jan6 — and so, by association, lazy pundits — may not be aware of.

These are the kinds of surprises that can kill entire cases, after a year and a half of painstaking investigation.

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

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

We the People Plan

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

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

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

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

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

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

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

Zach Rehl’s disproportionate charging

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tarrio’s motive and plan

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

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

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

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

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

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

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

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

The January 6 Militia Witnesses Are Cooperating with DOJ, Probably Not the January 6 Committee

Liz Cheney made a comment in Thursday’s public hearing that has attracted some attention. As part of her explanation that the January 6 investigation is ongoing, she said,

As we present these initial findings, keep two points in mind. First, our investigation is still ongoing. So what we make public here will not be the complete set of information we will ultimately disclose. And second, the Department of Justice is currently working with cooperating witnesses and has disclosed to date only some of the information it has identified from encrypted communications and other sources.

Some have wondered whether this reflects some kind of insight into where the DOJ investigation is headed.

I doubt that Cheney’s comment reflects any greater insight into where DOJ is headed than I’ve gotten from tracking DOJ’s investigation closely, though as I’ll explain below, the Committee undoubtedly has non-public insight into how the militias coordinated with those close to Trump. (One possible — and important — exception to this assumption might be Joshua James, the Oath Keeper who is known to have testified in an NYPD inquiry targeting Roger Stone associate Sal Greco.)

While the Committee showed clips of depositions it had with Stewart Rhodes (pleading the Fifth in response to a question about arming members), Enrique Tarrio (expressing regret he didn’t monetize the Stand Back and Stand By comment), and Jeremy Bertino (who is Person-1 in the sedition indictment charging the Proud Boy leaders and who told the Committee that membership tripled in response to Trump’s comment), the more substantive claims about the militias on Thursday always cited the indictments against them, not evidence independently gathered by the Committee.

For example, Cheney described how Trump’s December 19, 2020 tweet, “initiated a chain of events. The tweet led to the planning for what occurred on January 6, including by the Proud Boys, who ultimately led the invasion of the Capitol and the violence on that day.” In his questioning of documentarian Nick Quested, Bennie Thompson likewise cited the indictment against the Proud Boys for claims about the lead-up to the attack.

To be sure, Thompson laid out details of the attack that are not generally known, but which are public: the Proud Boys skipped Trump’s speech and kicked off their attack to coincide with the Joint Session, not Trump’s speech; the Proud Boys first attacked at the site where the mob soon to be led by Alex Jones would arrive. I’ve laid out some of these dynamics in this post, and the Sedition Hunters have developed two detailed timelines that show how this worked, one describing the phases of the attack, and another capturing key communications of those implicated in it.

I’ve likewise noted what Cheney has: The Proud Boys — and virtually everyone else who organized in advance — responded to Trump’s tweet as if it was an order. I’ve also described — in a post called, “Back Was Stood, And By Was Stood: The Passive Voice Behind the Top Down Structure of the Charles Donohoe Statement of Offense” — how in cooperating witness Charles Donohoe’s Statement of Offense, DOJ for the first time used the passive voice to describe how the riot was announced.

[T]he foundation of that hierarchy that is so remarkable.

On December 19, 2020, plans were announced for a protest event in Washington, D.C., on January 6, 2021, which protest would coincide with Congress’s certification of the Electoral College vote.

On or before December 20, 2020, Tarrio approached Donohoe and solicited his interest in joining the leadership of a new chapter of the Proud Boys, called the Ministry of Self Defense (“MOSD”). Donohoe understood from Tarrio that the new chapter would be focused on the planning and execution of national rallies and would consist of hand-selected “rally” boys. Donohoe felt privileged to be included and agreed to participate.

Close to every other filing in the January 6 case that mentions the announcement of these plans actually cites what was taken as the formal announcement: Trump’s tweet, in response to which hundreds if not thousands of rioters began to make plans to come to DC.

Peter Navarro releases 36-page report alleging election fraud ‘more than sufficient’ to swing victory to Trump https://t.co/D8KrMHnFdK . A great report by Peter. Statistically impossible to have lost the 2020 Election. Big protest in D.C. on January 6th. Be there, will be wild!

The import of that December 19 tweet was clear even in real time; the NYT and WaPo recently returned to the central role it plays in a great number of January 6 cases.

But this statement of offense instead presents what was viewed as an order from Trump in the passive voice: “Plans were announced.” Trump announced those plans, as every other charging document makes clear.

And the next day, in response to that announcement, Tarrio started building that top-down hierarchical structure that would go on to intentionally assault the Capitol and cops.

There are many things this statement of offense does with that masterful use of the passive voice. It implicates, without mentioning, people like Peter Navarro and Ali Alexander, the former because he was mentioned in the tweet and the latter because he was organizing it. The statement of offense makes clear that Tarrio told Donohoe and other Ministry of Self Defense leaders about what their plan was, but doesn’t reveal what he has shared, particularly what he shared about direct planning with people close to Trump. Indeed, the language of the statement of offense leaves open the possibility that Tarrio was moving on this even before the public launch of the riot by Trump.

But most importantly, without naming him, this structure puts Trump at the head of that hierarchy that bears top-down responsibility for the intentional violence and damage in the service of obstructing the vote certification.

The implication from the Statement of Offense is that Donohoe learned certain things starting on December 20 that he has shared with prosecutors. One reason I’m pretty sure that prosecutors haven’t shared it with the Committee, yet, is because Donohoe’s cooperation does not show up in the discovery index provided to the defendants themselves on May 12, over a month after Donohoe flipped, which prosecutors filed publicly last week. Similarly, prosecutors have not yet explicitly told defense attorneys the person who shared a plan with Tarrio talking about occupying the Capitol, though they have the returns for Tarrio’s phone that should help defense attorneys learn that person’s identity.

(I do wonder whether a challenge to a very recent call records subpoena from the Committee by Russian-American Kristina Malimon, discovered by Kyle Cheney, not to mention the high profile former Trump impeachment lawyers representing her, means the Committee thinks they’ve figured out the person’s identity, though.)

The schedule of upcoming January 6 hearings explains one reason why Cheney referenced the ongoing investigation when citing DOJ’s cooperating witnesses:

  • June 13: The Big Lie
  • June 15: Decapitate DOJ
  • June 16: Pressuring Pence
  • June 21: Pressuring the States
  • Hearing 6: Trump Assembles a Mob and Sics it on Congress
  • Hearing 7: Trump Does Nothing as Capitol Is Attacked

The dates for the last two hearings, hearings that will include details about how the Proud Boys paused their attack to await reinforcements brought by Alex Jones, opened a second front in seeming coordination with the Oath Keepers and Jones, and considered a second assault until learning the National Guard had finally been deployed, are not known yet. Whenever they are, though, they’ll come after June 21, and therefore after the June 17 discovery deadline in the Proud Boy Leaders case. DOJ has said they won’t supersede the Leaders indictment beyond what it currently is (meaning no more co-conspirators will be added to it). But the fates of Persons-1 (Bertino), -2, and -3 are up in the air right now, as well as a number of charged Proud Boys (like Ron Loehrke), who played key roles in the tactical success of the attack but who have not yet been indicted. Similarly, the fates of those known to coordinate most closely with the militias — Roger Stone, Alex Jones, and Ali Alexander — remain uncertain.

Who knows? Their fates may be less uncertain between now and the last Committee hearing!

To be clear: as Chairman Thompson told Jake Tapper this week, the Committee does know of some of the coordination. I’ve heard of a communication implicating Stone that I believe the Committee has. Alex Jones complained about how many communications the Committee — specifically those of Cindy Chafian and Caroline Wren — had obtained, and one or both of them also communicated with Tarrio. A key focus of the testimony of Dustin Stockton and Jennifer Lawrence — and surely, Katrina Pierson, whom Stone and his associates have tried to blame for the attack — described their panic after Trump told his mob to walk to the Capitol. That testimony must explain why Pierson fought so hard to keep Wren’s chosen speakers, including Mike Flynn, Roger Stone, Brandon Straka, and others, off the stage. This fight also shows up in Mark Meadows’ texts. And Ali Alexander testified for eight hours; we’ll see how successfully the Committee debunked his already-debunked cover story, but Alexander lost his shit during the hearing on Thursday. The role of the Stop the Steal effort in delivering bodies to the right places at the Capitol is the most important known coordination from the day of the attack.

Rudy Giuliani also had communications with Proud Boy associate James Sullivan, Mike Flynn had some ties to militias (especially the First Amendment Praetorians), and Sidney Powell was paying for the defense of a number of militia members.

The Committee knows a great deal about how Trump’s mob got directed to the Capitol. But I suspect they’re still waiting to learn all the details that cooperating witnesses have provided.


Known cooperating witnesses

Oath Keepers

Jon Schaffer: The substance of Schaffer’s cooperation against the Oath Keepers is still not clear (and could well extend beyond them).

Graydon Young: Young interacted with Roger Stone in the weeks leading up to the attack, may know details of the alliance struck between Proud Boys and Florida Oath Keepers, and was part of the First Stack to bust into the Capitol; he also implicated his sister.

Mark Grods: Grods was the first Oath Keeper who was present at the Willard the day of the attack to flip, and likely provided details of the QRF and implicated Joshua James.

Caleb Berry: Berry would provide more details of Oath Keeper activities, potentially implicating Stone, in Florida, and also was witness to the attempt to hunt down Nancy Pelosi.

Jason Dolan: Dolan would explain why he and Kenneth Harrelson were waiting at the top of the East Stairs when the First Stack, Joe Biggs and his co-travelers, and Alex Jones and Ali Alexander converged there before the door was opened from the inside.

Joshua James: James called in reports from someone who is almost certainly Stone the day of the attack, participated in key discussions with Stewart Rhodes, Kelly Meggs, and Mike Simpson during the attack, and was closely involved in Rhodes’ continued efforts after January 6.

Brian Ulrich: Ulrich would provide details of planning specific to Georgia Oath Keepers and the advance planning in December.

Todd Wilson:  Wilson would explain the mobilization of the North Carolina Oath Keepers; he also witnessed a call Rhodes made to someone close to Trump after the riot.

Proud Boys

Matthew Greene: Greene will explain details of the communications involved the day of the attack and the specific goal to pressure Mike Pence.

Charles Donohoe: Donohoe will provide prosecutors an inside understanding of how the leadership of the Proud Boys worked, including with whom Tarrio may have been working starting in December and details about Tarrio’s arrest, which led Donohoe to try to fill in.

Louis Colon: A Kansas City Proud Boy who received perhaps the most favorable deal will undoubtedly implicate his co-conspirators and describe how the cell structure of the Proud Boys worked on January 6; he may also provide important debunking of someone who had been an FBI informant the day of the attac.

Others

Gina Bisignano: Bisignano cooperated against her fellow SoCal anti-maskers, but in the light of Carl Nichols’ rejection of DOJ’s application of obstruction, is attempting to withdraw her guilty plea. A hearing on her attempt to withdraw her plea will be held on June 22. She has not withdrawn her stated intent, one directly influenced by Trump’s speech, to pressure Mike Pence.

Josiah Colt: Colt cooperated against his co-conspirators, Ronnie Sandlin and Nate DeGrave, describing how they armed themselves and helped open both the East Door and the Senate Gallery.

Klete Keller: The substance of Keller’s cooperation is not known.

Jacob Fracker: Fracker testified against fellow VA cop Thomas Robertson.

Robert Lyon: Lyon testified against his co-defendant, Dustin Thompson.

Misdemeanor cooperators

Virtually all plea deals require the defendant to share their social media and sit for an interview with the FBI. A handful of defendants are known to have convinced prosecutors to drop or hold off felony charges by providing limited cooperation (including sharing encrypted communications) in advance. They are believed to include:

Jeff Finley: Finley was a co-traveler of Proud Boy Zach Rehl on January 6.

Brandon Straka: Straka who was among those excluded from speaking on January 6,  was on Ali Alexander’s Stop the Steal listserv, and spent time with Mike Flynn before heading to the Capitol.

Anthime “Baked Alaska” Gionet: Baked Alaska could share communications involving white nationalists like Nick Fuentes. But Gionet fucked up his plea colloquy, so prosecutors can charge him with a felony incorporating his cooperation if he doesn’t plead by July 10 (not like I’m counting days but that’s less than a month away).

Jacob Hiles: Hiles cooperated against Capitol Police Officer Michael Riley and his buddy James Horning.

Father and son Proud Boy pair Jeffrey and Jeremy Grace likely also avoided felony exposure by cooperating (though Jeffrey’s plea just got pushed back two weeks); they spent much of January 6 with Ron Loehrke.

House January 6 Committee: Public Hearings – Day 1 [UPDATE-1]

[NB: Any updates will be published at the bottom of this post. /~Rayne]

This post and comment thread are dedicated to the House January 6 Committee hearings scheduled to begin Thursday June 9, 2022, at 8:00 p.m. ET.

Please take all comments unrelated to the hearings to a different thread.

The hearings will stream on:

House J6 Committee’s website: https://january6th.house.gov/news/watch-live

House J6 Committee’s YouTube page: https://www.youtube.com/watch?v=hZ0yNe3cFx4

C-SPAN’s House J6 hearing page: https://www.c-span.org/video/?520282-1/open-testimony-january-6-committee

C-SPAN’s YouTube page: https://www.youtube.com/c/C-SPAN/featured

Check PBS for your local affiliate’s stream: https://www.pbs.org/ (see upper right corner)

Twitter is carrying multiple live streams (NBC, PBS, Washington Post, Reuters, CSPAN, Bloomberg): https://twitter.com/i/events/1533876297926991877

MSNBC will carry coverage on their cable network with coverage beginning at 7:00 p.m. ET as well as on MSNBC’s Maddow Show podcast feed. Details at this link.

ABC, NBC, CBS will carry the hearings live on broadcast and CNN will carry on its cable network.

Fox News is not carrying this on their main network. Their weeknight programming including Tucker Carlson’s screed will continue as usual and will likely carry counterprogramming.

Twitter accounts live tweeting the hearing tonight:

Brandi Buchman-DailyKos: https://twitter.com/Brandi_Buchman/status/1535034512639512576

Scott MacFarlane-CBS: https://twitter.com/MacFarlaneNews/status/1535050143879266306

Chris Geidner-Grid News: https://twitter.com/chrisgeidner/status/1535052708922937345

JustSecurity’s team live tweeting: https://twitter.com/just_security/status/1534955708881457154

If you know of any other credible source tweeting the coverage, please share a link in comments.

Marcy will not be live tweeting as the hearing begins 2:00 a.m. IST/1:00 a.m. UTC/GMT. She’ll have a post Friday morning Eastern Time. Do make sure to read her hearing prep post, though.

An agenda for this evening’s hearing has not been published on the committee’s website.

~ ~ ~

Any updates will appear at the bottom of this post; please bear with any content burps as this page may be edited as the evening progresses.

Again, this post is dedicated to the House January 6 Committee  and topics addressed in testimony and evidence produced during the hearing.

All other discussion should be in threads under the appropriate post with open discussion under the most recent Trash Talk.

To new readers and commenters: welcome to emptywheel. New commenters, please use a unique name to differentiate yourself; use the same username each time you comment.

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~ ~ ~

UPDATE-1 — 7:30 P.M. ET 10-JUN-2022 —

According to Scott MacFarlane-CBS there will be a total of six House J6 Committee hearings this month.

House J6 Committee hearing schedule (as of eve 6/10/2022):

Monday June 13 — Hearing: On the January 6th Investigation
10:00 AM | 390 Canon HOB
Host: Select Committee to Investigate the January 6th Attack

Wednesday June 15 — Hearing: On the January 6th Investigation
10:00 AM | 390 Canon HOB
Host: Select Committee to Investigate the January 6th Attack

Thursday June 16 — Hearing: On the January 6th Investigation
1:00 PM | 390 Canon HOB
Host: Select Committee to Investigate the January 6th Attack

Tuesday June 21 — Hearing: On the January 6th Investigation
**10:00 AM ET | Date-Time-Place Subject to Confirmation**
Host: Select Committee to Investigate the January 6th Attack

Thursday June 23 — Hearing: On the January 6th Investigation
**8:00 PM ET | Date-Time-Place Subject to Confirmation**
Host: Select Committee to Investigate the January 6th Attack

Date, time, and location of the next three hearings have been published on the U.S. House of Representatives’ calendar. The last two have not yet been confirmed and published.