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OATH KEEPER SEDITIOUS CONSPIRACY CONVICTIONS WERE THE BATTLE; APPEALS MAY BE WAR

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From emptywheel: Thanks to past support from readers, we can bring you Brandi’s preview of sedition appeals. To support Brandi’s larger book project on sedition, you can donate at the link here.

With the Oath Keepers’ historic seditious conspiracy trials now in the rearview, a new fight with significant implications is on the horizon. Almost all of the defendants—including and perhaps most unsurprisingly of all, Oath Keeper founder Elmer Stewart Rhodes are appealing their convictions.

Between two respective Oath Keeper trials involving seditious conspiracy that played out late last year and early into this one, prosecutors and defense attorneys spent an excess of 16 weeks duking it out in court, poring over mountains of evidence and examining dozens of witnesses including cooperating Oath Keepers. The Proud Boys seditious conspiracy trial stretched for more than 60 days and with verdicts reached in May, sentencing is expected in late August and early September. 

It is often repeated and rightfully so: seditious conspiracy is one of the gravest charges that can be brought in the U.S., and it is very rarely prosecuted. When it is, it is not often a successful endeavor. The bar is high and narrow given that the line between First Amendment-protected activities and sedition can be razor-thin.

The U.S. has endured major setbacks in prosecuting sedition cases before, so with two sets of juries delivering guilty verdicts on this count for most of the Oath Keepers indicted on it, (and then later for the Proud Boys), these were huge victories for the Justice Department. 

Huge but tempered.

Tempered because a conviction can also merely mark the end of one chapter and the start of another very tricky one once appeals are in the mix.

In a recent interview with NPR analyzing the Oath Keepers sedition verdicts, extremism expert and author Kathleen Belew pointed out that seditious conspiracy prosecutions can be a useful tool to combat extremist violence in society. She argues that it sends the message to extremist and militia groups, or other groups who use force as a movement, that they won’t be treated with kid gloves or prosecuted as lone actors. The risk of prosecuting extremists includes violent retaliation but as Belew also noted, these same prosecutions have the power to rouse people to the realization that their conduct is risky and potentially quite expensive to cope with legally. 

Perhaps most eloquently, Belew underlined that the only way to tamp down on extremism is to confront it, not look away from it.  

Recently, a report by The Washington Post suggested none of the sedition charges may have even come to pass if a reported skittishness to bring them had persisted at upper levels of the Justice Department at the outset of the Jan. 6 investigations. To read it, it would seem that many felt sedition was a bridge much too far or too risky politically. Marcy picked that WaPo report apart already and exposed key gaps and blind spots in the story so I won’t belabor those points here. 

I will, however, belabor others. 

First, Marcy’s unwinding of the Post story isn’t just context for context’s sake nor is it to browbeat a reporter like Carol Leonnig who is esteemed for good reason. (I have a lot of respect for her work and that of others at the Post, for the record). But Marcy does provide useful context by raising questions that, it would appear, the Washington Post seemed to miss or perhaps failed to appreciate when relying on its sources and then sharing those findings with a public largely unversed in the nuances of Jan. 6 and its related investigations. 

In the same way that Belew suggests sedition trials and convictions can act as an important deterrent to possible criminal extremists, it would seem just as vital that non-criminal, non-seditious Americans accurately grasp these serious proceedings, too. Being empowered with the ability to cut through the bullshit being spun by the far right, or Jan. 6 conspiracy theorists, hinges considerably on having a clear understanding, or at least a thorough consideration, of the historical evidence at the trials themselves.  

For my purposes, perhaps most striking in that Post piece was a detail that later needed to be corrected. In the first iteration of its story, the Post incorrectly stated that the Justice Department attempted to prosecute those involved in the kidnapping plot of Michigan governor Gretchen Whitmer with the sedition statute. 

But they did not use it in that case; so the comparison wasn’t just incorrect but it wasn’t apt at its inception. What would be more apt would be to mention how prosecutors used it in the Hutaree Christian militia case from 2010. This is a critical distinction because the Hutaree case is deeply relevant as Oath Keepers appeals are underway. With the Hutaree militia, the judge acquitted the defendants of seditious conspiracy after the government closed its case. U.S. District Judge Victoria Roberts felt prosecutors had failed to sufficiently prove the militia members intended to forcibly resist the U.S. government. It was a just lot of vile talk, she found, but it didn’t rise to seditious conspiracy. 

I will broach more about this later in this piece but first, let’s return to some baseline details on the appeals in progress. 

OATH KEEPERS ON APPEAL 

At his sentencing in May, Rhodes puffed up his chest to deliver a self-aggrandizing diatribe extremely short on remorse and extraordinarily heavy on claims of political persecution by the U.S. government and the “weaponization” of free speech by the Justice Department. His attorneys said early into the trial that if they lost, an appeal would certainly follow. 

And it has. 

Rhodes’ lawyers, James Lee Bright and Phillip Linder, did not return a request for comment to emptywheel this week but for the moment, according to the docket at the U.S. Court of Appeals for the D.C. Circuit, Rhodes and almost all of his co-defendants from the first trial group including Kelly Meggs, Kenneth Harrelson, and Jessica Watkins, have consolidated their efforts to attempt an appeal.

Another batch of Oath Keepers tried, charged, and convicted of seditious conspiracy include Roberto Minuta, David Moerschel, Edward Vallejo, and Joseph Hackett. They were split off into a second trial group for logistical reasons. 

The only Oath Keepers convicted of seditious conspiracy as of Thursday who have yet to officially indicate whether they will appeal are Ed Vallejo and Joseph Hackett.

Vallejo’s attorney, Matthew Peed, wrote in an email to emptywheel this week that he felt it was “likely” his client would appeal. Hackett’s lawyer, Angie Halim, did not return multiple requests for comment. (Key to note: An appeal cannot be formally entered until a defendant’s final judgment makes it onto the docket and neither Vallejo nor Hackett’s final judgment has appeared yet.) 

Rhodes’ attorney Phil Linder told CBS recently he expects it will take months to craft an appeal and one can only assume the same would apply to Kelly Meggs’ attorney Stanley Woodward given the demands on his schedule of late. Woodward also represents Waltine Nauta, former President Donald Trump’s valet and alleged co-conspirator in the Mar-a-Lago classified documents case. Woodward also represents Ryan Samsel, a Jan. 6 defendant who figures prominently in most “fedsurrection” conspiracy theories and he represents Frederico “Freddie” Klein, a former Trump-era State Department official. Klein faces a number of charges including assaulting police on Jan. 6, and he goes to trial in October. Woodward will also represent Trump’s former trade adviser Peter Navarro once Navarro’s trial for criminal contempt gets underway in September. Navarro, prosecutors say, defied a subpoena issued to him by the House Select Committee to Investigate the Jan. 6 Attack on the U.S. Capitol. 

Over the next 30 days, the Oath Keepers will continue to get their houses in order. Rhodes’ lawyers, according to a recent letter from the court clerk, have not yet been admitted to practice before the appeals court in but they have until July 12 to get admitted. 

 THE DEVIL IN THE DETAILS

After the massive unraveling of evidence and testimony at trial, it is hard to imagine a scenario in which an appeal, especially one from Rhodes, will contain, well, anything particularly novel. But the far more important factor will be whether his appeal will convince an appellate judge that his speech was not seditious.

Another one of his attorneys, Ed Tarpley, said after Rhodes was sentenced to 18 years in prison that the former far-right leader wouldn’t stop speaking up because it was a matter of principle. 

The Justice Department had “weaponized” the First Amendment and used Rhodes’ own words against him to secure a conviction, Tarpley said. 

Rhodes’ words were “used against him” technically speaking. But it wasn’t just his words that helped get him convicted though jurors did see mind-boggling amounts of evidence featuring his communications. 

They heard speeches and reviewed texts and phone calls as well as a recorded meeting where he called for revolution days after the 2020 election. He decried the election as unconstitutional and fraudulent and promoted disinformation to rile up his group or to entice them to act in concert with him. He directed Kelly Meggs, a Florida division leader, to coordinate operations in advance of the 6th and on the 6th. He oversaw the coordination of the gigantic weapons stash, or a quick reaction force (QRF) with the help of his co-defendants. The cache was set up at a hotel in Virginia, just over the Potomac River from the Capitol. Aware of the gun laws in D.C., Oath Keepers, from points all over the U.S., understood and received directions to drop their weapons at the QRF. Rhodes’ future co-defendant Ed Vallejo would stand by awaiting Rhodes’ orders to haul the weapons in if asked. 

The beginnings of Rhodes’ intent were aired out in trial courtesy of a recorded GoTo Meeting with fellow Oath Keepers on Nov. 9, 2020.. Rhodes didn’t mince words and in fact, his fury was so complete, he scared one Oath Keeper into eventually reporting the call to the authorities. 

They would have to fight to keep Trump in office and this wasn’t a metaphorical “fight.”

“Let’s make no illusion about what’s going on in this country. We’re very much in exactly the same spot that the founding fathers were in like March 1775. Now—and Patrick Henry was right. Nothing left but to fight. And that’s true for us too. We’re not getting out of this without a fight. There’s going to be a fight. But let’s just do it smart and let’s do it while President Trump is still Commander in Chief and let’s try to get him to do his duty and step up and do it,” Rhodes said. 

Trump would not urge his supporters to descend on D.C. until Dec. 19, but prosecutors demonstrated that the Oath Keepers’ seditious conspiracy didn’t simply or only start to exist once Trump called for the “wild” event. 

During that Nov. 9 call, Rhodes’ told members they would need to be willing to travel to Washington and prepare to war with “antifa.” This was something he explained had multiple benefits. 

If they were there to stop “antifa” from attacking Trump supporters, it would give Trump a reason to invoke the Insurrection Act and raise Oath Keepers to his side.

“I’m willing to sacrifice myself for that. Let’s start the fight there, OK? That would give President Trump what he needs frankly,” Rhodes said.

Getting Trump to invoke the Insurrection Act so the “fraudulent” election could be stopped was ideal for Rhodes and as the weeks after the election passed and Trump lost lawsuit after lawsuit challenging the results, his desperation grew. 

On Jan. 6, Rhodes never stepped foot inside the Capitol. He stalked its grounds as he communicated with Oath Keepers on site and just moments before Oath Keepers breached, cell phone data showed Rhodes had called Meggs in what prosecutors argued was an order to get inside the Capitol and plow ahead. Prosecutors said the defendants understood, even without it being said explicitly, that this was a means to stop Congress from doing its duty.  At trial, footage after this call in question appears to show Meggs entering the Capitol as if on cue. 

Rhodes wasn’t indicted for propagandizing. He wasn’t indicted for having an opinion contrary to fact. He wasn’t indicted for wanting Trump to be in office even after Trump lost the election and then lost dozens of lawsuits seeking to overturn the results.

Rhodes wasn’t indicted for writing public letters and posting them online urging Trump to invoke the Insurrection Act in order to stop the “fraudulent” election of Joe Biden, a man Rhodes proclaimed was a “puppet” for communist China. (For the record, Rhodes wrote two of these letters; one was published on Dec. 14 and another on Dec. 23, 2021.) 

And Rhodes certainly wasn’t indicted for merely traveling from Texas to D.C. on Jan. 6 to attend a rally with thousands of other people who showed up to support Trump’s Big Lie. 

Rhodes was charged and convicted of seditious conspiracy, obstructing an official proceeding, and tampering with evidence because his words, when coupled with his conduct and the conduct of the men he oversaw, far exceeded the protections the First Amendment has to offer. 

Rhodes didn’t simply oversee a bunch of loudmouth oafs hand-painting protest signs in a hotel in Virginia before sauntering over to the Capitol to chant outside of it peacefully. 

When he was en route to D.C. from Texas,  bank statements and receipts showed. Rhodes spent more than $10,000 on firearms and gear like sights, scopes, ammunition, and night vision equipment. On their return to Texas after the 6th, Rhodes didn’t stop spending. In fact, he spent at least another $30,000 on weapons and equipment. Jurors saw maps and cell extraction reports that showed how, when, and where Rhodes coordinated these purchases and communications. Jurors saw how Rhodes coordinated with Oath Keeper Joshua James while returning to Texas and how they worked together to collect firearms and tactical gear. And all the while, Rhodes angled to conceal his movements, using his then-girlfriend Kellye SoRelle as a cutout to communicate with Oath Keepers via text through her and her phone. It was revealed to jurors also that James, who pleaded guilty to seditious conspiracy, sent a message to Rhodes as late as Inauguration Day saying, “After this… if nothing happens, it’s Civil War 2.0.” 

When former Oath Keeper Terry Cummings, who traveled with other members to D.C. for the 6th, testified against Rhodes in court, he said not since his time in the military had he ever seen so many guns in one place. 

Rhodes’ defense hinged on the argument that Oath Keepers came to Washington merely to serve as a security force for Trump VIPs attending speeches or rallies. One of those VIPs was ratfucker Roger Stone. Oath Keepers Joshua James and Roberto Minuta were tasked to guard him. Yet they would leave Stone at the hotel and speed towards the Capitol on golf carts as soon as Rhodes called them to his side. Meanwhile, Stone hightailed it out of D.C. 

At other times, the defense claimed Oath Keepers came to Washington to provide medical support as needed. Defendant and former Army medic Jessica Watkins had medical training, that was true, but her defense was undercut by her own admission on the witness stand: She did impede police when she forced her way into the Capitol and pushed past them. 

At sentencing, she wept when she recalled memories of the police officer who was overrun thanks to her conduct.

It seemed at trial the defense’s goalposts shifted depending on which defendant was under questioning or how a witness performed. The disclosed purpose for amassing the weapons cache or going to the Capitol regularly shifted around its edges in the Rhodes trial, and so many stories simply didn’t hold up under the scrutiny of cross-examination or redirect.

Memorably, assistant U.S. Attorney Jeffrey Nestler remarked to jurors during closing arguments in the first Oath Keepers trial that for all the claims of Oath Keepers being an organized security force on Jan. 6,  not one defendant was licensed or insured to provide security services and no one held any contracts for these supposed clients. 

And if the evidence from before Jan. 6 or the day of didn’t sink him, what followed proved Rhodes wanted to overthrow a government where Joe Biden was its executive. On Jan. 10, 2021, while downtown D.C. was still bustling with National Guard left over to protect the Capitol and nearby federal buildings, Rhodes took a meeting in a parking lot in Texas with U.S. veteran Jason Alpers. 

Alpers testified that he had “indirect” ties to the Trump White House but no further description was offered in court. Alpers said he linked up with Rhodes through an associate of Allied Security Operations Group, the same group that led an “audit” of voting machines in Antrim County, Michigan. (Michigan, of course, was one of several battleground states where Trump’s lawyers, including Sidney Powell and others, claimed fraud was pervasive. Powell was sanctioned for her role in pursuing such baseless claims in the courts last week.)

The meeting was set so Rhodes could pass a message to Trump. Alpers would secretly record the exchange. Rhodes was furious. He wouldn’t condemn the violence on the 6th but he had other regrets.

If Trump was going to just let himself be removed illegally, Rhodes remarked, “then we should have brought rifles.”

“We could have fixed it right then and there,” he said on the recording before adding that he would “hang fucking [then Speaker of the House Nancy] Pelosi from the lamppost.”

Furious, he tapped out a message into Alpers’ phone because he expected Alpers would pass it along to his Trump contact. 

Trump would be killed by his enemies if he didn’t act now, Rhodes warned.

‘You must use the Insurrection Act… if you don’t, you and your family will be imprisoned or killed. You and your children will die in prison… you must do as Lincoln did. He arrested congressmen, state legislators and issued a warrant for SCOTUS Chief Justice Taney. Take command like Washington would… Go down in history as a savior of the Republic, not the man who surrendered it… I’m here for you and so are all of my men. We will come help if you need us,” Rhodes wrote. 

He claimed he had 40,000 Oath Keepers backing him and millions of others who felt as they did.

He added: “There’s gonna be combat here on U.S. soil no matter what” and warned that the Biden administration would “disarm us all,” if allowed to take office. 

The message was too extreme for Alpers to pass along. It didn’t help, the veteran testified, that Rhodes’ then-lover Kellye SoRelle, who was also there, was drunk. It put  Alpers off. It was all too unprofessional and his confidence was shaken. On cross-examination, Alpers said he delayed reporting the meeting to the FBI because he didn’t want to get involved any further. 

All of these elements are just slivers of what jurors heard in the weeks-long trial.

There were also several intense days where emotions ran high, including those where the parties started to dig into claims that Oath Keepers went to help Capitol Police after getting inside. 

Meggs, Harrelson, and Watkins attorneys insisted their clients “assisted” U.S. Capitol Police Officer Harry Dunn who was stationed outside then-House Speaker Nancy Pelosi’s office. Armed with a rifle, Dunn told jurors he knew it wouldn’t take much for someone to grab it off him and make a bad situation worse. He told Oath Keepers to leave, he told them they were hurting police; he told them police were “getting the shit kicked out of them.”

The Oath Keepers wouldn’t leave right away though, they hung around him a bit longer instead. When prosecutors asked Dunn on redirect at trial what would have helped him that day, the officer was succinct: if they left, or never come in, that would help. 

So, to review, here are the convictions from the Oath Keepers sedition cases. (It is worth noting that if Rhodes manages to pull off an appeal, he could also be resentenced.)

On seditious conspiracy:

  • Elmer Stewart Rhodes, Kelly Meggs, Roberto Minuta, David Moerschel, Joseph Hackett

On conspiracy to obstruct an official proceeding: 

  • Kelly Meggs, Jessica Watkins, Roberto Minuta, David Moerschell, Edward Vallejo, Joseph Hackett

On obstruction of an official proceeding: 

  • Elmer Stewart Rhodes, Kelly Meggs, Jessica Watkins, Kenneth Harrelson, Thomas Caldwell, Roberto Minuta, David Moerschel, Edward Vallejo

On conspiracy to prevent officials from discharging their duties: 

  • Kelly Meggs, Jessica Watkins, Kenneth Harrelson, David Moerschel, Edward Vallejo, Joseph Hackett

On tampering or destruction of evidence: 

  • Elmer Stewart Rhodes, Kelly Meggs, Kenneth Harrelson, Thomas Caldwell, Roberto Minuta, Joseph Hackett

Impeding officers during a civil disorder:

  •  Jessica Watkins

IS EVERYTHING OLD NEW AGAIN?

When the federal judge presiding over the Hutaree matter tossed all of the sedition charges against those defendants, she explained that prosecutors had failed to prove beyond a reasonable doubt that the Christian militia members took concrete steps to violently revolt against the federal government with the aid of weapons of mass destruction.

The Hutarees were recorded discussing how police were their enemies and how they wanted to kill them. They discussed how a war against the U.S. government was necessary, too. But Judge Victoria Brown ruled that a conspiracy required a specific plot or a knowing agreement to break the law or a knowing intent to join that effort. Guilt by association was not enough, she said, and neither was repugnant conversation.

A Hutaree defense attorney noted in an interview with The Guardian last October when the Oath Keepers went on trial, that when it came to the Hutaree militia, beyond a lack of a plan, there was also “no action taken.” Hutarees may have shared disdain for law enforcement, communications showed, but, he argued, it pretty much stopped there. 

After the sedition acquittals for the Hutarees in 2012, a law professor from Wayne State University noted to the New York Times that the outcome just went to show how difficult it is to prosecute cases involving groups engaged in political speech. The professor also noted how  Hutarees were “a fairly disorganized group” who may have “talked big” but didn’t seem to be doing much otherwise. 

At the Oath Keepers trial, the defense was insistent that because there was not a concrete plan laying out the Oath Keepers’ precise efforts up to, on, or after Jan. 6, the government’s case was overcharged and amounted to a gross infringement on their First Amendment rights. 

But neither Judge Mehta nor the jury believed that was the case for the Oath Keepers who were ultimately convicted of seditious conspiracy. At Rhodes’ sentencing, Judge Mehta was unequivocal on this point, telling Rhodes he posed an “ongoing peril to democracy.” 

He was the one giving orders, Mehta said. 

“He was the one organizing teams that day. He was the reason they were, in fact, in Washington, D.C. Oath Keepers wouldn’t have been there but for Stewart Rhodes, I don’t think anyone contends otherwise. He was the one who gave the order to go, and they went,” he said. 

When the jury was instructed before deliberations, they were told that a conspiracy was defined as two or more people trying to accomplish some unlawful purpose and in order to sustain a seditious conspiracy charge, they must agree that a defendant conspired with at least one other person to oppose the government by force to delay and impede it; or they reached an agreement to use force in the ordinary sense of the word; or simply that they contemplated using force while at least one defendant actually used it. 

The government had no burden, Mehta said, to prove beyond a reasonable doubt that there was an express agreement or an implied one. They just had to prove that the members of the conspiracy met, talked about unlawful objectives, and agreed to some of the details or what the means were by which objectives could be accomplished. The success of that aim was irrelevant. 

Jurors deliberated for three days in the Rhodes trial; jurors in the second trial group took just over a week to reach a verdict. The end results were a mixed bag of verdicts, suggesting that jurors meticulously reviewed each defendant’s conduct. 

Watkins was acquitted of sedition but convicted of conspiracy to obstruct a proceeding, obstructing an official proceeding, conspiracy to prevent officials from discharging their duties, and impeding officers during a civil disorder. She recruited Oath Keepers and coordinated with them to breach the building and disrupt police on Jan. 6, but the jury, in the end, wasn’t fully convinced her role was central to that of a seditious conspiracist. 

The bar to convict remained high even for someone who recorded themselves breaching the building while actively and repeatedly encouraging others to “push, push, push” because the police “can’t hold us.” Before sentencing her to 8.5 years, Judge Mehta remarked that no one would suggest she is Rhodes or even Kelly Meggs. 

“But your role in those events is more than that of a foot soldier. I think you can appreciate that,” he said. 

Will these words haunt an appeal to come? 

When sentencing Rhodes and Meggs, Judge Mehta was far harder on them than their co-defendants also convicted of seditious conspiracy. He handed down an 18-year sentence to Rhodes and 12 years to Meggs with terrorism enhancements applied. The maximum on seditious conspiracy alone is  20 years. Minuta was sentenced to just 4.5 years; Joseph Hackett to 3.5 years. Vallejo and Moerschel received just 3 years. And again, that would include all of the convictions weighed in. 

Mehta emphasized to Rhodes at his sentencing that there was no question he “took up arms and fomented a revolution” on Jan. 6.

“That’s what you did. Those aren’t my words. Those are yours,” Mehta said. “You are not a political prisoner, Mr. Rhodes. You are not here for your beliefs.”

Perhaps this encapsulates the very reason why it matters that the sedition charge was used instead of abandoned early on. The evidence would indicate this wasn’t merely a First Amendment matter. Perhaps it may have been easier for Rhodes or Meggs or other Oath Keepers charged and convicted of seditious conspiracy to wriggle out of an obstruction charge if the focus on sedition wasn’t also on the table to start. 

But whatever the case may be, that’s the recent past. And while important, there’s now an equally if not more important future to ponder just ahead. 

At a time when the U.S. is awash in far-right extremism; when the man who incited the insurrection on Jan. 6 is now twice-indicted yet still running for president and running on a vengeance platform; at a time when he and other right-wing politicians vow to pardon all Jan. 6 defendants if ever given power by the body politic to do it—it will matter what happens with these appeals. 

Will the Oath Keepers convicted of sedition appeal their sentences? Or will they appeal the conviction? Appealing the conviction would seem the likely route given Mehta’s light touch at sentencing for most. And as part of his tough-guy-patriot-against-the-Deep-State-routine, Rhodes has already said he’s willing to do prison time for his beliefs. An appeal on the conviction that could potentially humiliate the U.S. government would seem too tantalizing for a man like Stewart Rhodes to pass up. 

If terabytes of evidence weren’t enough, if hours and hours of video footage weren’t enough, if proclamations and concerted efforts to foment an armed rebellion live on television aren’t enough to maintain the Oath Keepers seditious conspiracy convictions, then one must wonder, what will happen if history repeats itself?

How Legal Certainty about 1512(c)(2) Has Wobbled Even as Certainty Trump Violated It Increased

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In the past year, those who believe Trump could and should be held accountable for January 6 reached near unanimity that he should be charged with obstruction of the vote certification — 18 USC 1512(c)(2).

In the same year, certainty about how the law applies to January 6 has wobbled, with one appeal pending before the DC Circuit (which will be appealed no matter how it comes out), and either an expansion of this appeal or a follow-on one virtually certain. All that uncertainty may not change DOJ’s determination to use it; under all but the most restrictive appellate rulings, it should still easily apply to Trump and his ilk, though not necessarily all the January 6 rioters who’ve already been prosecuted with it.

But DOJ probably won’t know exactly how it’ll apply for at least six months, maybe another year.

This post will attempt to explain what has happened and what might happen going forward.

1512(c)(2) reads:

Whoever corruptly 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.

You need an official proceeding — here, Congress’ vote certification mandated by the 12th Amendment, you need an attempt to obstruct it, and you need corrupt purpose. The “otherwise” here is at the center of the legal dispute, meaning how this clause relates to the rest of the obstruction statute is under dispute. But depending on that relationship, the obstruction statute has the advantage of including a potential 20 year sentence, an explicit conspiracy charge, with enhancements under the sentencing guidelines for things tied to the degree of obstruction and the use of violence that offers a good deal of flexibility to tailor sentences ranging from 4 months to 6 years (and hypothetically far higher).

At first, lawyers not following the actual DOJ investigation imagined that Trump could be held accountable for January 6 on an incitement model; indeed, that’s what Congress used in impeachment. But from the start, DOJ charged many of the rioters who premeditated their effort to stop the vote certification with obstruction. It charged Oath Keepers Jessica Watkins and Proud Boy Joe Biggs with obstruction from their initial arrest affidavits on January 16 and 19, 2021, respectively. A jury found Watkins guilty of obstruction (but not seditious conspiracy) on November 30, 2022, and Biggs’ obstruction and sedition conspiracy trial kicked off last Thursday.

In July 2021, I argued that Trump (and any of members of Congress prosecuted) would be charged with obstruction, not incitement. I repeated and expanded that argument in August 2021. In her December speech calling to hold Mark Meadows in contempt, Liz Cheney invoked obstruction as the crime under consideration, which led TV lawyers, almost a year after the fact, to consider Trump’s conduct using the frame of obstruction. In March, Judge David Carter ruled it more likely than not that Trump and John Eastman had attempted to obstruct the vote certification (adopting the 9th Circuit standard for corrupt purpose).

At that point, 14 months after the attack, everyone was in agreement: That’s how Trump could be held accountable. By prosecution under 18 USC 1512(c)(2).

But starting in a November 22, 2021 hearing in the case of Garret Miller, former Clarence Thomas clerk Carl Nichols explicitly raised questions about whether obstruction could apply to the President. In March, even before Judge Carter’s ruling, Nichols ruled that while the vote certification counted as an official proceeding, obstruction required the involvement of documents. In refusing to change his mind on reconsideration, Nichols also noted the discrepancy among DC judges as to what “corruptly” means in the statute.

And that’s how on December 12, 2022, almost two years into this process and a month after the appointment of a Special Counsel, former Trump White House lawyer Greg Katsas, Mitch McConnell protégé Justin Walker, and Biden appointee Florence Pan came to consider how 1512(c)(2) would apply to January 6. On paper, the question they were reviewing pertained to Nichols’ ruling that obstruction under 1512(c)(2) must involve documents. But along the way, the Republican judges invited both sides to weigh in on both how to define corrupt purpose under the statute and, procedurally, how to address it if they were going to rule on it (that is, whether to issue a ruling now, or to remand it back to Carl Nichols only to be appealed after he rules).

Defendants have challenged whether the vote certification counts as an official proceeding too, and I don’t rule out that this Supreme Court, would insert itself into that issue as well, especially given that protests associated with the Brett Kavanaugh confirmation have, from the start, been raised as an inapt parallel to January 6.

It has been a month since the DC Circuit ruling, so they could rule anytime. In the hearing, Katsas seemed inclined to rule for defendants on requiring obstruction to include a documentary component and to intervene to sharply narrow corrupt purpose. Walker seemed to start out in the same camp, but by the end may have come around to splitting his ruling, ruling with DOJ on the documents question but with defendants on the corrupt purpose one. Importantly, he seemed to favor tying “corrupt purpose” to some personal benefit. Pan, who presided over some of these cases before being elevated to the Circuit, seemed inclined to rule with DOJ on both counts.

Whatever the DC Circuit decides, it will be appealed.

If DOJ loses, they’re likely to ask for an en banc review, where they would not face a panel with a majority of Trump appointees. If the defendants lose, they’re likely to appeal it to SCOTUS, where they’d be guaranteed a conservative majority. If the DC Circuit remands the “corrupt purpose” issue — procedurally the correct thing to do — it might be another nine months before DC Circuit gets it back. And then that decision will be appealed by the losing side, to the full panel or SCOTUS. Plus there’s a minor issue on a Trevor McFadden ruling that will be appealed too, how much of a penalty to impose at sentencing.

There will not be certainty on how 1512(c)(2) applies to January 6 before June, and such certainty might not come until next June.

With rioters, DOJ has responded to these legal challenges by adopting several backstop positions. With edge cases, it allowed defendants accused of obstruction to plead down to the more serious misdemeanor, 18 USC 1752. With defendants who had some kind of confrontation with the cops, they have charged civil disorder, 18 USC 231. At the beginning of this process, there were the same kind of appellate challenges to 231, too, but those have been significantly resolved. With the Oath Keepers and Proud Boys, DOJ has also added 18 USC 372 charges, conspiracy to prevent Congress from doing its duty of certifying the vote count.

To see how those backstops would work, consider the Oath Keepers found guilty in the first sedition trial. If the obstruction verdict against all five were thrown out, Stewart Rhodes and Kelly Meggs would remain jailed on sedition guilty verdicts, Kenneth Harrelson and Jessica Watkins would remained jailed on 372 verdicts (as well as civil disorder in Watkins’ case), Thomas Caldwell’s other obstruction conviction — obstructing the investigation by destroying evidence — would stand, as would those of Rhodes, Meggs, and Harrelson. There seems to be some movement on plea bargaining in the third Oath Keepers group, which suggests DOJ may be offering some of them 231 pleas as well.

And because of that mens rea requirement, DOJ has had limited success in getting obstruction convictions. A jury hung on obstruction with Riley Williams, and Judge Amy Berman Jackson just acquitted Joshua Black of obstruction as well. Both Williams and Black were found guilty of other felonies.

As I said above, even if the DC Circuit or SCOTUS adopts the most restrictive rulings on existing challenges, an obstruction charge against Trump still should survive. That’s because Trump’s obstruction, which included the recruitment of fake electors to create falsified certificates that members of Congress could use to justify their vote challenges, entails a documentary component that should meet Nichols’ standard. And while the most restrictive imaginable definition of corrupt purpose would include a desire for personal benefit, Trump was seeking the most craven personal benefit of all: to remain President even after voters had fired him.

But the further you get from Trump, the harder proving such a corrupt purpose would be. Did Mark Meadows do what he did because he wanted to remain in a powerful White House position? Did John Eastman do what he did because he was seeking personal benefit? Did Peter Navarro? Did the lower level aides who flew fake elector certificates from state to state? Many of them did what they did because they believe Democrats are illegitimate, just like Clarence Thomas and Sam Alito do, or resent them like Brett Kavanaugh does, and so even that kind of ruling would constrain 1512’s applicability to the stuff that Jack Smith has been appointed to investigate.

Plus, if SCOTUS rules (perhaps driven byBrett Kavanaugh’s ever-festering resentment) that non-investigative Congressional proceedings are not official proceedings, then 18 USC 1512(c)(2) wouldn’t even apply to Trump.

As I alluded to in passing recently, one reason I think the scope of what has become the Jack Smith investigation has expanded, beyond the fact that it is investigating real corruption and the fact that numerous witnesses may be exposed on one part of the scheme and so could be coerced to cooperate on other parts of the scheme, is to backstop the Trump investigation. If you charge fraud based on raising money off false claims about vote fraud, and charge campaign finance violations tied to violating PAC rules, and charge  conspiracy to defraud the US, forgery, and extortion tied to the fake elector plot, then it meets the standard for corrupt purpose that Dabney Friedrich adopted on 1512(c)(2): otherwise illegal activity.

But it also ensures that if SCOTUS throws out the obstruction charge for anyone for January 6, even someone corruptly seeking to remain President after being fired, those other charges would backstop the main charge, just like 18 USC 372 and civil disorder are backstopping charges against the Oath Keepers.

I think Trump has exposure on other charges, too. I believe Trump has exposure to aid and abet charges tied to the assaults his armed mob committed; that’s a lonely position, but I’ll take Amit Mehta’s opinion on the issue over virtually anyone else’s. I’m increasingly confident DOJ is trying to charge Trump in a conspiracy, via at least Alex Jones and Roger Stone, with the Proud Boys and other militias (though what that conspiracy would be depends on the Proud Boy jurors and the various appellate rulings). I wouldn’t be surprised if DOJ used 372 as a backstop with people like Trump, Eastman, and Meadows, just like they did with the two militias.

And DOJ is no doubt doing a similar kind of analysis as it considers whether and if so, how, to charge others who tie Trump and his associates with the crime scene, along with people who, independently of the White House efforts, funded or otherwise abetted the attack. None of that will entirely hold off further charges; in September, DOJ charged Kellye SoRelle, who has ties to the Oath Keepers, Latinos for Trump, and Trump’s efforts to undermine votes in some states, with three counts of obstruction (one of which would not be affected by these appellate issues). But her case has been continued until March. And, in part, because of the centrality of the Proud Boys case to where things go from here, I expect a lot to remain in flux until then on a bunch of other cases.

No matter how much work Jack Smith and his team get accomplished in the weeks ahead, it will be hamstrung by appellate uncertainty around the one charge, most everyone agrees, that should be used to hold Trump accountable.

Resources

Opinions upholding DOJ’s interpretation of 1512(c)(2)

  1. Dabney Friedrich, December 10, 2021, Sandlin*
  2. Amit Mehta, December 20, 2021, Caldwell*
  3. James Boasberg, December 21, 2021, Mostofsky
  4. Tim Kelly, December 28, 2021, Nordean; May 9, 2022, Hughes (by minute order), rejecting Miller
  5. Randolph Moss, December 28, 2021, Montgomery
  6. Beryl Howell, January 21, 2022, DeCarlo
  7. John Bates, February 1, 2022, McHugh; May 2, 2022 [on reconsideration]
  8. Colleen Kollar-Kotelly, February 9, 2022, Grider
  9. Richard Leon (by minute order), February 24, 2022, Costianes; May 26, 2022, Fitzsimons (post-Miller)
  10. Christopher Cooper, February 25, 2022, Robertson
  11. Rudolph Contreras, announced March 8, released March 14, Andries
  12. Paul Friedman, March 19, Puma
  13. Thomas Hogan, March 30, Sargent (opinion forthcoming)
  14. Trevor McFadden, May 6, Hale-Cusanelli
  15. Royce Lamberth, May 25, Bingert

Carl Nichols’ interventions:

DC Circuit proceedings

Amit Mehta opinion ruling it plausible that Trump conspired with rioters and the militias: February 18, 2022

David Carter opinion ruling, on 9th Circuit standard, it more likely than not that John Eastman and Trump obstructed vote certification: March 28, 2022

January 6 Committee Executive Summary, including referral for obstruction and other crimes: December 19, 2022

Three Months Later, DOJ Finally Gets Interested in Sidney Powell’s Militia Defense Fund

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In the Oath Keepers case, the government just sent out a letter raising concerns about DC’s Rule 1.8(e) that governs the ethical obligations in cases where a third party pays for someone else’s defense. That’s allowed, but there are three necessary conditions: that the defendant make informed consent, that the payor not interfere in case decisions, and that information about the case may not be shared with the payor.

(1) The client gives informed consent after consultation;

(2) There is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; and

(3) Information relating to representation of a client is protected as required by Rule 1.6.

At issue is the scheme that BuzzFeed revealed and Mother Jones later reported that describes that Sidney Powell is paying for some of the Oath Keepers’ defense.

As the government describes, in response to the government’s queries, lawyers for Stewart Rhodes and Jessica Watkins did not respond, the Meggs’ lawyers and that of Kenneth Harrelson say they’re in compliance with the rule, and William Shipley, who is representing Roberto Minuta, said he’d respond to Judge Mehta’s inquiries, but didn’t answer to DOJ.

1. Attorney David Fischer, who represents Thomas Caldwell, stated that he was in compliance with Rule 1.8(e) and that he “has received no funding from, and has no affiliation with, Defending the Republic.”

2. Attorney Scott Weinberg, who represents David Moerschel, stated he was in compliance with Rule 1.8(e) and that he was not receiving any funding from Defending the Republic.

3. Attorney Gene Rossi, on behalf of himself and co-counsel Natalie Napierala and Charles Greene, who represent William Isaacs, stated that they were in compliance with Rule 1.8(e) and that they were not receiving any funding from Defending the Republic.

4. Attorney Tommy Spina, on behalf of himself and co-counsel Edward B. MacMahon, Jr., who represent Jonathan Walden, stated that they were in compliance with Rule 1.8(e) and that they were not receiving any funding from Defending the Republic.

5. Attorneys Julia Haller and Stanley Woodward, who together represent Kelly Meggs and Connie Meggs, stated that they were in compliance with Rule 1.8(e). They did not specifically inform the government whether their fees were being paid by Defending the Republic.

6. Attorney William Shipley, who represents Roberto Minuta, declined to answer, but wrote, “Should Judge Mehta wish for my client or me to explain the arrangement for funding my client’s legal defense in order to confirm that my client’s Sixth Amendment right to conflict-free counsel are being afforded – or waived – we will provide him with whatever information he requests.”

7. Attorney Bradford Geyer, who represents Kenneth Harrelson, stated that he was in compliance with Rule 1.8(e). He declined to inform the government whether his fees were being paid by Defending the Republic.

The other defense counsel whom the government believes to be retained rather than court-appointed – Phillip Linder and James Lee Bright for Stewart Rhodes, and Jonathan Crisp for Jessica Watkins – have not yet responded to the government’s letter.

The letter DOJ sent to the defense attorneys suggested that Powell’s interests may diverge from these defendants.

The Supreme Court has said that “inherent dangers . . . arise when a criminal defendant is represented by a lawyer hired and paid by a third party.” Wood v. Georgia, 450 U.S. 261, 269 (1981). In Wood, the third-party payer was the “operator of the alleged criminal enterprise,” and thus the lawyer had an interest in the clients not testifying against the third-party payer or taking other actions contrary to the payer’s interest.4 Id. Indeed, comment 10 to Rule 1.8 explains that “third-party payers frequently have interests that differ from those of the client.” Here, Defending the Republic may have interests that diverge from these defendants.

4 As Defendant Kelly Meggs’s former counsel Jonathon Moseley told Mother Jones, Defending the Republic’s “financial support has the effect of making plea bargains less likely.” This fact could be against the interest of a particular defendant.

I’m happy DOJ is addressing this. The lawyers who are reported to be on Powell’s dole seem to be pushing conspiracy theories in lieu of a real defense.

What I don’t understand is the timing. BuzzFeed first reported this on March 9. DOJ only sent out its inquiry letter on June 16, over three months later.

And thus far, DOJ is only raising this in the Oath Keepers’ case. At the very least, you’d think DOJ would make similar inquiries in the Ryan Samsel case; he’s represented by the same team, Stanley Woodward and Juli Haller, as is representing the Meggses. And after he was assaulted, Samsel seemed to decide not to cooperate (against what would be Joe Biggs).

Similarly, William Shipley is representing a slew of defendants, including many of the Proud Boys who might most immediately implicate Biggs.

Finally, Jimmy Haffner, one of the Proud Boys accused of helping to open up the East Door of the Capitol, posed with Powell when her fundraising bus came through town in 2020.

Of course, DOJ has been investigating Powell herself since at least September, so maybe they’re learning of new conflicts only now.

So who else is Sidney Powell paying? And why is DOJ only doing something about it now?

Forty Feet: Trump Sicced a Murder Weapon on Mike Pence

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Harry Litman observed after yesterday’s January 6 Committee hearing that you might be able to charge Trump with the attempted murder of Mike Pence.

This was not new news yesterday though.

I reported on the DOJ and the Committee’s mutual focus on the targeting of Pence on January 5. In a piece that described that Marc Short had not yet agreed to cooperate and Pence might never cooperate, NYT reported on the same focus of DOJ filings days later. Though, as sometimes happens, NYT got the timeline wrong; Gina Bisignano swore to her focus on Pence in August (and has not reneged on that point even as she attempts to withdraw her guilty plea), and Josiah Colt described how he and two co-conspirators responded to news that Pence would not stop the vote count by breaching the Senate in July 2021, almost a year ago.

DOJ has been focused on the effect of Trump’s targeting of Pence for over a year. In fact, to substantiate the seriousness of the threat facing Pence that day, the Committee cited witness testimony that has been public since January 13, 2021, in Proud Boy Dominic Pezzola’s original arrest affidavit.

W-1 further stated that members of this group, which included “Spaz,” said that they would have killed [Vice President] Mike Pence if given the chance. According to W-1, the group said it would be returning on the “20th,” which your affiant takes to mean the Presidential Inauguration scheduled for January 20, 2021, and that they plan to kill every single “m-fer” they can.

The allegation actually doesn’t show up in the Proud Boy sedition indictment, though Proud Boy Matthew Greene’s plea allocution talked about how the militia swarmed the Capitol with the intent of adding pressure to Pence.

To be sure, yesterday’s hearing laid out the following additional pieces of proof that Trump was specifically targeting Pence:

  • Jason Miller and Greg Jacob’s description of Trump’s deliberate misrepresentation, overnight on January 5, falsely claiming Pence agreed with him about the vote count
  • Descriptions about Trump calling Pence on around 11 on January 6 and calling him a whimp and a pussy, a call that distressed Ivanka because, “It was a different tone than I’ve heard him take with the Vice President before”
  • Trump’s addition references to Mike Pence in his January 6 speech, both in the prepared script and ad-libbed along the way
  • Details from White House aides confirming that Mark Meadows had informed Trump about the violence at the Capitol and how, instead of a tweet calling for calm, Trump instead “pour[ed] gasoline on the fire” (as Former White House Deputy Press Secretary Sarah Matthews described it) by calling out Pence again in a tweet at 2:24 the day of the insurrection
  • Greg Jacob’s testimony about tensions with the Secret Service about evacuating the Capitol
  • Marc Short’s description of conversations with Kevin McCarthy expressing frustration that Trump wasn’t taking the circumstances seriously
  • Reconfirmation that Trump never called Pence to check on the Vice President’s safety
  • Tracking of Jacob’s “Thanks to your bullshit we are now under siege,” to events at the Capitol

Committee member Congressperson Pete Aguilar explained that at the moment Pence was evacuated from his ceremonial office, he and the mob were just forty feet apart.

The Committee looked at the threat posed by the Proud Boys to Pence.

It doesn’t look at something far more substantive, though potentially far more complex. Immediately after Trump’s tweet, the Oath Keepers indictment describes communications between Roger Stone associate Kelly Meggs and Stewart Rhodes, followed by a conference call involving those two and operational lead Mike Simmons. The Oath Keepers converged, and then the first Stack and the second (made up of men who had been providing security to Roger Stone that morning) breached the East doors, along with Joe Biggs and the mob brought by Alex Jones.

Once inside, the first Stack broke up, with Meggs and others heading towards Speaker Pelosi’s office to hunt her down.

103. Shortly thereafter, WATKINS and other members ofStack One exited the Rotunda through the northbound hallway toward the Senate Chamber.

104. Around this time, a member of Stack One yelled “the fight’ s not over” and waved !rioters down the hallways toward the Senate Chamber.

105. At 2:45 p.m. and afterward, WATKINS and other Stack One members joined the imob in pushing against a line of law enforcement officers guarding the hallway connecting the Rotunda to the Senate Chamber, as WATKINS commanded those around her to “push, push, !push,” and to, “get in there, get in there,” while exclaiming, “they can’t hold us.” When officers responded by deploying a chemical spray, the mob-including WATKINS and other Stack One members-retreated.

106. At 2:45 p.m., MEGGS, HARRELSON, HACKETT, MOERSCHEL, and other Stack One members walked southbound out of the Rotunda and toward the House of Representatives in search of Speaker Pelosi. They did not find Speaker Pelosi.

The others attempted to get to the Senate, whence Mike Pence had, minutes earlier, been evacuated.

As I’ve noted, with the sedition indictments, DOJ also added 18 USC 372 charges, conspiracy “to prevent, by force, intimidation, or threat, any person … from discharging any duties thereof.”

DOJ may never show that Trump and the mob he sicced on his Vice President conspired to kill him, or even that Trump’s 2:24PM tweet aided and abetted the attempts to find and assassinate Pence — though the judge presiding over the Oath Keepers case has deemed the possibility Trump could be held accountable for aiding and abetting to be plausible, at least for a lower civil standard. But there’s little doubt that Trump, his lawyers, two militias, and the mob entered into a common effort to prevent Pence from doing his duty that day. And with the militias, you can draw a line between Trump, his rat-fucker, Alex Jones, and the men at the Capitol to the threat and intimidation Trump sicced on his Vice President.

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 Eight Month Investigation into the January 6 Investigation Didn’t End in March

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I was going to hold off responding to this Spencer Ackerman op-ed in the NYT — which attempts to superimpose conclusions of his book onto ensuing events that have disproven some of his predictions — until I finish a half-written review of the book itself (tl;dr: it’s a great history of the war on terror, but entirely unpersuasive as to its main argument and especially sloppy when it attempts to discuss politics). But I got a bit fed up by the way he claims to be speaking about the response to January 6 with an op-ed that doesn’t incorporate anything more recent than March.

“Eight months later, there is no political response to the insurrection at all,” — Spencer claims, linking an article dated March 26 reporting, “Dem Hearings Bend Over Backward to Ignore GOP Complicity in Capitol Riot –“only a security response aimed at its foot soldiers.” That’s his most recent reference in the entire op-ed, as demonstrated by the links he uses:

Elissa Slotkin: 2/1/21

Somali plot: 1/25/19

Somali plot: 10/14/16

Mike Flynn: 7/9/16

Trump on terrorism: 8/15/16

Trump’s birtherism: 9/19/15

How the January 6 insurrectionists saw themselves: 1/5/21

Veterans: 2/4/21

Non-veteran Mariposa Castro declaring war: 1/21/21

Describing the Jan 6 investigation based on what Michael Sherwin’s comments about sedition, while ignoring what he said about holding everyone accountable: 1/13/21

[Sherwin’s resignation: 3/23/21]

Trump sent them: 1/9/21

Opting against 14A: 2/3/21

Dems on empowering the FBI: 2/5/21

DOJ seeking new domestic terror powers: 2/26/21

Slotkin again on monitoring domestic extremists: 3/23/21

“I am not a terrorist:” 1/13/21

Spencer makes no mention of any of the developments you’d look at to understand how the Biden Administration was responding to January 6, including:

  • A new domestic terrorism response that includes social media monitoring of the sort that might have prevented the attack on the Capitol, but few of the other things Spencer and others have never stopped predicting since January 6.
  • A discussion of the actions of the January 6 Select Committee, on which committee Elissa Slotkin (the Democrat Spencer quoted twice and on whom his book focuses) doesn’t sit. The committee has provided a way around the need to placate Republicans trying to avoid angering Trump, to say nothing of committees (like the House Oversight Committee) packed with key figures in the events of January 6. The committee has already moved to obtain the records of the people that Spencer claims have escaped accountability.
  • A description of Merrick Garland’s repeated comments, starting in his February 22 confirmation hearing and continuing since, that DOJ would go where the evidence leads, including to those who incited it. Garland’s DOJ has also found important ways to avoid sheltering Mo Brooks (and by association all other people who were Federal employees the day of the riot, as Trump was), and to waive executive privilege to allow multiple investigations into Trump’s actions to proceed.
  • How DOJ under Merrick Garland and Lisa Monaco has approached the January 6 investigation, notably with its use of the unpoliticized obstruction statute to charge felonies rather than (thus far at least) sedition, the use of interlocking conspiracies that have already started incorporating some organizers and which could easily be used with Trump and his flunkies, and the possibility of terrorism enhancements that would be decided at sentencing, by judges, rather than by categorical application at the start of investigation.

There are definitely ways that the two decade war on terror played a big role on January 6.

More important than the 22 veterans charged by early February is which figures in the organizing conspiracies applied their military experience to ensuring the success of the operation. Key among those is former Staff Sargeant Joe Biggs, who served in both Iraq and Afghanistan before he went on to play a key propaganda role in the 2016 election; as I’ve described, Biggs was at the head of both major fronts (East Side, West Side) of the attack, and his network incorporates the key organizers of the larger event. Charles Donohoe, Dominic Pezzola, Gabriel Garcia, Jessica Watkins, and Joshua James are other veterans who allegedly turned their war on terror training to play key roles leading an attack on the Capitol. The second front of the attack on the Capitol that Biggs seemed to have anticipated was opened — either coincidentally, or not — by a bunch of Marines, including one on active duty.

If you’re going to talk about the import of the war on terror on January 6, you also have to talk about the mental scars that veterans have brought back. That was made spectacularly clear by Landon Copeland’s PTSD-driven meltdown in a detention hearing. But even Jacob Chansley’s mental illness has ties to his service. These two are not alone among the men and women whose service scars led them to embrace the false promises Donald Trump was offering.

In his book, Spencer rightly complains about the Wanted Dead or Alive rhetoric motivating the War on Terror. He also complains about an, “obsession with the baroque, fragmentary details of what became #Russiagate,” (mistaking the equally baroque counter-propaganda hashtag for those focusing in varying degrees of obsessiveness on the investigation itself) that nevertheless ended with Bill Barr corruptly intervening to protect Trump. But Spencer apparently feels the best way to deal with something else — a plodding, but ambitious, attempt to conduct a law enforcement investigation from the attack itself to its kingpins — is to largely ignore it even while claiming to speak for it.

The January 6 investigation, even in conjunction with the Select Committee, will not fix all the problems with the War on Terror. The two together may not hold the most powerful culprits for January 6 accountable — but that’s not for lack of ambition to do just that. But — in large part because this is an investigation of mostly-white people, which goes to the core of how America’s racism and other demons almost brought down its democracy and still could — it looks more like how the US should have responded to the 9/11 attack and not the caricature that Spencer arrives at by ignoring the last six months.

Following 600 cases as DOJ meticulously obtains the camera footage to see how Alex Jones lured unwitting participants to a second front or attempts to document whether key militia members made an attempt on Nancy Pelosi’s life is not sexy. But it’s what Spencer claims we should have done in response to 9/11.

“One if By Land, Two if By Sea:” What We Know of the Oath Keepers’ January 6 Quick Reaction Force

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On Twitter yesterday, some folks asked me whether there’s any credibility to the government’s claims that the Oath Keepers had an armed Quick Reaction Force ready to rush to DC in case things devolved to armed battles on January 6.

At first, it appeared that the government might just be unduly crediting the wild boasts of Thomas Caldwell, who spoke repeatedly of arranging such a force in the days leading up to January 6. But over the course of a series of filings, the government has shown that after a sustained discussion about whether Oath Keepers should come armed to DC for the insurrection, it was decided to instead amass guns in (at a minimum) the Ballston, VA Comfort Inn. The evidence thus far submitted shows that multiple participants knew of the stash, called it the QRF, and deposited their own weapons at the stash. The record is less certain about what plans the Oath Keepers had to transport that arsenal to DC, but in a remarkable comment on January 3, Kelly Meggs — who appears to have played a key role in organizing security for Roger Stone, inter-militia negotiations, and The Stack that pushed into the Rotunda on January 6, and who may have paid for two rooms to use for the QRF — suggested two rally points to receive the weapons: “1 if by land North side of Lincoln Memorial 2 if by sea Corner of west basin and Ohio is a water transport landing !!”

This post will pull together the evidence shown to date.

On December 25, according to the Fourth Superseding indictment and other filings, Kelly Meggs noted on Facebook what a lot of other militia members were at the time: guns are prohibited in DC. “We are all staying in DC near the Capitol we are at the Hilton garden inn but I think it’s full. Dc is no guns. So mace and gas masks, some batons. If you have armor that’s good.”

But within days, on December 30, Thomas Caldwell (who is not a member of the Oath Keepers but who coordinated closely with, at least, contingents from Ohio and North Carolina) told Jessica Watkins that an Oath Keeper from North Carolina had committed to serve as the Quick Reaction Force in Virginia — he was aiming to get reservations at the Comfort Inn in Ballston. The idea was he’d bring weapons into Virginia in his truck.

As we speak he is trying to book a room at Comfort Inn Ballston/Arlington because of its close-in location and easy access to downtown because he feels 1) he’s too broken down to be on the ground all day and 2) he is committed to being the quick reaction force anf bringing the tools if something goes to hell. That way the boys don’t have to try to schlep weps on the bus. He’ll bring them in his truck day before

Over the course of that same conversation, Caldwell updated Watkins that the North Carolina Oath Keeper had indeed gotten reservations at the Ballston Comfort Inn. “Just got a text from him he WAS able to book a room in that hotel I recommended which is on Glebe Road in Arlington.”

The next day, Meggs seems to have come to the same understanding. On December 31, he asked someone else if they were bringing weapons to DC. “You guys Gonna carry?” After the other person said, “No,” they weren’t, Meggs explained that the Oath Keepers had a Quick Reaction Force 10 minutes away. “Ok we aren’t either, we have a heavy QRF 10 Min out though.”

The Comfort Inn in Ballston would be a 7-minute drive without traffic.

That same day, December 31, someone offered up to Joshua James assistance from friends close to DC if the Oath Keepers got in trouble. “i have friends not far from DC with a lot of weapons and ammo if you get un trouble i ca. Coordinate help.” James suggested they might not need it on account of the QRF, “That might be helpful, but we have a shitload of QRF on standby with an arsenal.” The next day an Oath Keeper asked James how to get the guns to VA if the Alabaman Oath Keepers were staying in DC. “Hey we told to bring guns and maybe stage them in VA?? But you are showing hotels in DC for Alabama. Are we bring guns or no if so how will that work?” James suggested a farm might still be in play. “Were working on a Farm location Some are bringing long rifles some sidearms… I’m bringing sidearm.” By that point, then, it appears the Oath Keepers had committed to keeping weapons in VA with a QRF. But the logistics of it remained uncertain.

On January 2, Kelly Meggs texted a Leadership Signal chat with those two proposed meeting points for the QRF in DC: the Lincoln Memorial if the bridge was still open, and south of there at Ohio and West Basin if the bridges did get shut. “1 if by land North side of Lincoln Memorial 2 if by sea Corner of west basin and Ohio is a water transport landing !! QRF rally points Water of the bridges get closed.” The next day, Caldwell sent out a text message to a Three Percenter looking for a boat to ferry weapons.

Can’t believe I just thought of this: how many people either in the militia or not (who are still supportive of our efforts to save the Republic) have a boat on a trailer that could handle a Potomac crossing? If we had someone standing by at a dock ramp (one near the Pentagon for sure) we could have our Quick Response Team with the heavy weapons standing by, quickly load them and ferry them across the river to our waiting arms. I’m not talking about a bass boat. Anyone who would be interested in supporting the team this way? I will buy the fuel. More or less be hanging around sipping coffee and maybe scooting on the river a bit and pretending to fish, then if it all went to shit, our guy loads our weps AND Blue Ridge Militia weps and ferries them across. Dude! If we had 2 boats, we could ferry across and never drive into D.C. at all!!!!

But the next day, January 3, Caldwell sent an email with maps to the person in charge of the QRF with the subject line, “NEW MAPS RELATIVE TO HOTEL AND INGRESS FOR QRF,” that seemed to assume he would drive from the hotel to “the target area,” via a route that went nowhere near the Lincoln Memorial. “These maps walk you from the hotel into D.C. and east toward the target area on multiple roads running west to east including M street and P street, two of my favorites . . . .”

Similarly, it remained unsettled whether or not individual participants would contribute their own weapons to the stash. On January 2, for example, Mark Grods asked Joshua James if he should bring weapons to insurrection. “So, I guess I am taking full gear less weapons? Just reading through all the posts. Would rather have it and not need it.” James instructed him to leave his weapons home, because the QRF would have weapons. “Yeah full gear… QRF will have weapons Just leave em home.”

On January 3, Jessica Watkins told Bennie Parker that they didn’t need to bring weapons because the QRF would be there. “We are not bringing firearms. QRF will be our Law Enforcement members of Oathkeepers.”  But then that same day she reversed the instruction. “Weapons are ok now as well. Sorry for the confusion.”

On January 4, Stewart Rhodes made the Oath Keepers’ plan to have a QRF nearby public.

As we have done on all recent DC Ops, we will also have well armed and equipped QRF1 teams on standby, outside DC, in the event of a worst case scenario, where the President calls us up as part of the militia to to assist him inside DC. We don’t expect a need for him to call on us for that at this time, but we stand ready if he does (and we also stand ready to answer the call to serve as militia anytime in the future, and anywhere in our nation, if he does invoke the Insurrection Act).

Both Watkins and Grods appear to have brought their own weapons. On January 4, before she got to the Comfort Inn, Watkins asked the Florida Signal list where to drop weapons off before any operations. “Where can we drop off weapons to the QRF team? I’d like to have the weapons secured prior to the Op tomorrow.” According to Mark Grods’ Information, he “brought firearms to Washington, D.C.” — which may have exposed him to further criminal liability — “and eventually provided them to another individual to store in a Virginia hotel.”

Kenneth Harrelson also appears to have dropped guns at the Ballston Comfort Inn. On the 5th, Harrelson asked for the location of the “QRF hotel.” Kelly Meggs responded by asking for a DM. Three hours later, Harrelson showed up at the Comfort Inn for an hour.

Caldwell, too, appears to have dropped off a weapon to the QRF room, as this surveillance video from mid-afternoon on January 5 suggests (the government alleges he is holding the long sheet-wrapped item).

After Caldwell returned from the Capitol on January 6, the North Carolina Oath Keeper brought a similarly blanket-wrapped long item to Caldwell’s room.

The newly accused alleged Stack participant David Moerschel also appears to have left a gun at the Comfort Inn. Early on January 7, according to his complaint, Moerschel made two comments on the Oath Keepers’ “OK FL DC OP Jan 6″ Signal chat about leaving stuff for others at the QRF — the Ballston Comfort Inn.

“We have your bag, We will leave it with Kane at the QRF. We are en route there now.”

“Anyone else leave anything in the white van? We can leave it for you at QRF.”

Moerschel sent the first text, saying “we are en route” at 6:35AM. Twenty-four minutes later, a person that the government alleges is Moerschel appeared in Comfort Inn surveillance video carting a gun case around.

According to a detention memo for Joseph Hackett, he and Kelly Meggs, along with another person, showed up shortly thereafter.

Kenneth Harrelson got a later start than the others. At 8:55 on January 7, he texted to the Florida Signal chat, asking where his “shit” was at.

So we’re just leaving DC and I would like to know where my shits at since it seems everyone’s gone already.

In response, someone replied,

We are headed out now. Did you leave it [his shit] at Comfort Inn in that room?

Starting twenty minutes later, Harrelson was at the Comfort Inn along with Jason Dolan, with whom Harrelson drove in a rental car.

In Moerschel’s complaint, the North Carolinians alleged to have watched this QRF room while others were at insurrection are described without comment as co-conspirators. None have been charged (at least not publicly). But if and when they are, I imagine we’ll see still more video of weapons being moved around the Ballston Quality Inn.

Again, the precise plan for all these weapons remains unclear. But the government has provided evidence that at least six people already charged (Caldwell, Watkins, Moerschel, Harrelson, Grods, and Dolan) dropped off weapons. Given that Kelly Meggs paid for two hotel rooms there even though he stayed in DC, the implication may be that the same guy planning, “1 if by land, 2 if by sea,” paid for the rooms in question.

Update, August 18: Added footage with Hackett and Meggs.

The Oath Keepers Dilemma: The Government Has Threatened Yet Another Indictment

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The remaining 15 Oath Keeper conspiracy defendants have a status hearing today.

A lot has happened since the last status hearing the bulk of them had on June 1, 2021. Most notably, Graydon Young — co-defendant Laura Steele’s brother — pled guilty on June 23, just over a week ago. His cooperation with prosecutors will implicate the entire Stack, especially Joseph Hackett, Jessica Watkins, his sister, as well as the participants on a OK FL DC OP Jan 6 listserv (in addition to Watkins and Hackett, Kelly Meggs, Kenneth Harrelson, Jason Dolan, and William Isaacs).

Then, on Wednesday, Mark Grods pled guilty. His cooperation will implicate fellow Alabaman Joshua James (who got Grods to delete some files), Meggs, Watkins, Robert Minuta, Stewart Rhodes, and others who were on chats Grods was part of, as well as everyone involved in the Golf Cart chase and prior events at the Willard Hotel, adding Jonathan Walden to the mix.

Yesterday (or today, depending on which defendant you ask) was a deadline that Judge Amit Mehta set on June 1 for all motions unrelated to discovery (with the expectation that the late added defendants would probably need more time).

Thomas Caldwell (who can be implicated primarily by the Ohioans, the still unindicted Person Three, Grods, and possibly some other VA militia members not charged in this conspiracy) has been filing motions. He filed a marginally serious motion to dismiss everything on June 15, and filed a frivolous motion to transfer venue yesterday.

Yesterday, the deadline, both Joshua James and Kenneth Harrelson filed some motions. The former filed a motion to dismiss an assault charge and an obstruction charge against himself, as well as for a Bill of Particulars. The latter filed a motion to dismiss the counts of the indictment charged against him. The Meggses had earlier filed a motion for a Bill of Particulars.

But thus far, almost everyone is asking for an extension to file their own motions. Here’s a summary of what’s on the books thus far (Dolan, Hackett, Isaacs, and Walden would have an extension in any case, on account of their late addition):

  1. Thomas Caldwell: Motion to Dismiss, Motion to Change Venue, Motion for Extension
  2. Dominick Crowl: Motion for 60 Day Extension, Motion to Adopt
  3. Jason Dolan: Motion for Extension
  4. Joseph Hackett
  5. Kenneth Harrelson: Motion to Adopt Caldwell and James Motions, Motion for Extension, Motion to Dismiss Charges against Him
  6. William Isaacs
  7. Joshua James: Motion to Adopt, Motion to Dismiss Counts 8 and 13, Motion for Bill of Particulars, Motion for Extension
  8. Connie Meggs: Motion to Join Caldwell’s Motion, Motion for 60 Day Extension
  9. Kelly Meggs: Motion to Adopt Caldwell’s Motion (including a cursory adoption of his obstruction charge)
  10. Roberto Minuta (Minuta’s attorney has had some health limitations so would need an extension anyway): Motion for 30 Day Extension
  11. Benny Parker: Motion for at least 60 Day Extension, Motion to Adopt Harrelson and Caldwell, though not adopting Caldwell’s “partisan surplusage”
  12. Sandi Parker: Motion to Join Caldwell Motion, Motion for Extension
  13. Laura Steele: Motion to be able to go on vacation, Motion to Join Caldwell, Motion for at least 60-Day Extension
  14. Jonathan Walden
  15. Jessica Watkins: Motion to Join Caldwell’s Dismissal, Motion for 60 Day Extension

Between these requests, the government has gotten defendants to waive Speedy Trial for at least 30 more days as they contemplate the legal dilemma they’re facing.

It’s true that most defendants cite the voluminous discovery before them. A few claim they have not yet had an adequate tour of the Capitol. Harrelson’s motion quotes several paragraphs of boilerplate from the government.

But a comment from James’ Motion for Extension is perhaps the most telling. It asserts that defendants have been told there’s still yet another indictment on the way.

Because the government has made clear that an additional indictment (which could include more charges or more defendants) is possible, and because Mr. James is unaware of which, if any, currently charged defendant will be proceeding to trial, it is impossible to assess, prepare, and file motions regarding severance of counts or defendants at this time.

It also suggests that it’s possible none of the currently charged defendants will actually proceed to trial.

Short of adding Stewart Rhodes, there are few places this indictment will go except to make the terrorism or insurrection claims more explicit.

Which may explain why James, one of the remaining key players who would be able to trade a lesser sentence for a cooperation deal, suggests no one may go to trial.

Person Fifteen (AKA Mark Grods), Another Roger Stone Security Staffer, Flips

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Sometime in the recent history of Tucker Carlson’s fever dreams, he claimed that the long list of numbered unindicted co-conspirators in the Oath Keepers case were actually paid FBI informants setting up the militia members.

I guess with the news that Person Fifteen, AKA Mark Grods, will plead guilty and enter into a cooperation agreement with prosecutors today, Tucker gets partial credit: the government asked and received permission to keep Grods’ charges sealed so he could testify to the grand jury before pleading guilty today.

Delaying the government’s need to notify other defendants about Mark Grod[’]s related case between the filing of the criminal Information on June 28 and his public plea hearing on June 30, 2021, will ensure the defendant’s safety while he cooperates pursuant to his plea agreement and testifies before the grand jury.

So, it turns out, Grods was informing on his buddies. But not for pay, but in hopes of lenience at sentencing for a conspiracy and an obstruction charge.

Here are all the things — based on comparing the Fourth Superseding Indictment with Grods’ Statement of Offense— to which Grods is a direct witness:

55. At least as early as December 31, 2020, [Jessica] WATKINS, KELLY MEGGS, [Joshua] JAMES, [Roberto] MINUTA, PERSON ONE [Stewart Rhodes], PERSON THREE, PERSON TEN, and others known and unknown joined an invitation-only encrypted Signal group message titled “DC OP: Jan 6 21” (hereinafter the “Leadership Signal Chat”).

[snip]

58. On December 31, 2020, KELLY MEGGS and JAMES attended a 4-participant GoToMeeting titled “SE leaders dc 1/6/21 op call.” KELLY MEGGS was the organizer of the meeting.

[snip]

67. On January 2, 2021, [Grods] messaged JAMES on Signal and asked, “So, I guess I am taking full gear less weapons? Just reading through all the posts. Would rather have it and not need it.” JAMES responded, “Yeah full gear… QRF will have weapons Just leave em home.”

[snip]

95. MINUTA, using his personal email address and his personal home address, reserved three rooms at the Mayflower Hotel in Washington, D.C., under the names of MINUTA, JAMES, and PERSON TWENTY. A debit card associated with [Grods] was used to pay for the room reserved under MINUTA’s name. A credit card associated with JAMES was used to pay for the room reserved under JAMES’s name.

[snip]

128. Between 2:30 and 2:33 p.m., MINUTA, JAMES, WALDEN, and others rode in a pair of golf carts towards the Capitol, at times swerving around law enforcement vehicles, with MINUTA stating: “Patriots are storming the Capitol building; there’s violence against patriots by the D.C. Police; so we’re en route in a grand theft auto golf cart to the Capitol building right now . . . it’s going down, guys; it’s literally going down right now Patriots storming the Capitol building . . . fucking war in the streets right now . . . word is they got in the building . . . let’s go.”

[snip]

129. At 2:33 p.m., MINUTA, JAMES, WALDEN, and others parked the golf carts near the intersection of Third Street and Pennsylvania Avenue, Northwest. They then continued on foot towards the Capitol.

[snip]

165. Shortly after 4:00 p.m., individuals who breached the Capitol, to include YOUNG, STEELE, KELLY MEGGS, CONNIE MEGGS, HARRELSON, MINUTA, JAMES, WALDEN, HACKETT, DOLAN, and ISAACS, among others, gathered together with PERSON ONE and PERSON TEN approximately 100 feet from the Capitol, near the northeast corner of the building.

[snip]

195. On January 8, 2021, JAMES instructed [Grods] to “make sure that all signal comms about the op has been deleted and burned,” and [Grods] confirmed [Grods] did in fact do so.

In addition, Grods entered the Capitol shortly after others allegedly assaulted the cops.

And because he was at the Willard with Roberto Minuta, Joshua James, and Jonathan Walden, he may have been witness to the James side of key conversations involving Person Ten.

And Grods is one of nine Oath Keepers who provided security for Roger Stone, and the second to have entered a cooperation agreement.

Graydon Young: Trading a Potential Terrorism Enhancement for Testimony against His Sister

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As of this moment, the government has obtained five misdemeanor guilty pleas, one straight up felony plea, and two cooperation pleas in the January 6 investigation. With an eye towards understanding the Graydon Young plea, I’d like to look at the stories — or lack thereof — that the government is telling with its Statements of Offense.

DOJ’s reticent Statements of Offense

Thus far, the government is using Statements of Offense for their functional purpose, to lay out how the defendant’s behavior meets the elements of the offense to which they plead guilty, and not to tell a larger story about the investigation (as, for example, in the Robert Mueller did with some of his guilty pleas).

Generally, the misdemeanor SOO are more succinct than the arrest affidavit for the same defendant. For example, in their SOO, there’s less detail of Jessica and Joshua Bustle’s social media postings or evidence from the geofence warrants than in their arrest affidavit. Instead the SOO lays out that they were in the Capitol, that they carried anti-vaccine signs (which supports their parading charge), and adds that the reason they were there was to “demonstrate against the certification of the vote count.” Similarly, Robert Reeder’s SOO doesn’t include details of the pictures he took while inside the Capitol, which were described in his arrest warrant; it focuses on the alarms ringing when Reeder entered the building, that Reeder ignored a cop’s response that “We don’t have any water in here, sir” when he walked past the cop into the building, and his second trip inside, all evidence making it clear his trespass was knowing and intentional. There is something new in Bryan Ivey’s SOO that wasn’t in his arrest affidavit: that he deleted all the photos and videos he took inside the Capitol which, if the FBI wasn’t able to restore them, would represent the loss of valuable evidence about the first rioters inside the building.

That will likely be used in sentencing to distinguish Ivey at sentencing from someone like Anna Morgan-Lloyd who was able to fully cooperate with law enforcement.

Similarly, the SOO for the one straight felony plea, that of Paul Hodgkins, adds almost nothing from his arrest affidavit, aside from a paragraph establishing his intent to obstruct the vote count, which is an element of the obstruction charge he pled guilt to.

Hodgkins knew at the time he entered the U.S. Capitol Building that that he did not have permission to enter the building, and the defendant did so with the intent to 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.

There’s not even any language explaining the import of Hodgkins having helped occupy the Senate, as compared to those charged with misdemeanors.

There’s nothing at all wrong with this. Indeed, with the conveyor belt of plea deals that are about to go forward, doing this as efficiently and soundly, from a legal standpoint, as possible makes sense.

The cooperation deals also don’t tip DOJ’s hand

It’s not surprising, then, that the SOOs for the two cooperation deals provide little hint of what the men, Oath Keepers Jon Schaffer and Graydon Young, traded in hopes of working off their sentences. Admittedly, Schaffer’s SOO included two comments he made at the Million MAGA March on November 14, 2020 that were also included in his arrest affidavit. But like the arrest affidavit, the only link made between Schaffer’s actions on January 6 and the Oath Keepers is the Oath Keepers hat he wore to insurrection.

Instead, Schaffer’s SOO focuses on the elements needed to sustain Schaffer’s obstruction and trespassing with a deadly weapon (bear spray) charges.

Wearing a tactical vest and armed with bear spray, SCHAFFER unlawfully entered the building with the purpose of influencing, affecting, and retaliating against the conduct of government by stopping or delaying the Congressional proceeding by intimidation or coercion.

We know that Schaffer is cooperating against other Oath Keepers. A discovery letter Kathryn Rakoczy sent on April 23 explained that,

On Wednesday, April 21, 2021, we emailed you about Jon Schaffer, who pled guilty last week, with respect to the information we have at this time about whether Mr. Schaffer has had communications with your clients.

But the SOO doesn’t reveal any of what Schaffer might say.

Similarly, Graydon Young’s SOO doesn’t reveal what he might have offered prosecutors in hopes of working away the estimated 63 to 78 months he faces on the charges to which he pled guilty. Though by examining the history of the charges against him with what did get included in his SOO, we might guess what he offered.

How Graydon Young ended up pleading out of terrorism exposure

The government was prepared to arrest Young with a January 18 arrest warrant charging him with trespassing, obstruction of the vote count, and obstruction for deleting his Facebook account. Instead, they held off until February, when they arrested Young along with his sister, Laura Steele, and Kelly and Connie Meggs as part of the First Superseding Indictment, which added conspiracy and aiding and abetting the destruction of government property (18 U.S.C. §1361) charges to Young’s legal woes. The Third Superseding Indictment added no charges against Young. But the Fourth added a civil disorder charge that also implicated his sister and Jessica Watkins (as well as civil disorder, assault, and obstruction charges for some others). As I described at the time, the government was effectively turning the screws, enhancing most defendants’ legal jeopardy — albeit with charges that were already foreshadowed in case filings — as they awaited discovery. It was utterly ruthless, and about par for the course for DOJ, particularly for a complex conspiracy case.

By pleading guilty, Young not only got 3 levels of credit for pleading guilty, but the civil disorder and damage to the building charge were dismissed. Notably, the latter charge is what can be used to add a terrorism enhancement at sentencing, so by pleading, Young basically avoided being treated, legally, as a terrorist if and when DOJ decides to go there. In addition, Young’s initial charge for deleting his Facebook account got added as a two level enhancement to his obstruction charge. Had he been convicted of everything at trial, Young probably would have been sentenced to that as a separate crime concurrently, so effectively by pleading it just made his existing obstruction exposure worse.

Here’s what all that looks like in the mumbo jumbo of sentencing levels, which gives a sense of how DOJ is treating the Oath Keepers’ obstruction of the vote count as distinct from Paul Hodgkins, whose base level calculation (which did not include the threats of violence and damage, the extensive planning, or the obstruction charged against Young himself) was 17.

U.S.S.G. § 2J1.2 Base Offense Level 14

U.S.S.G. § 2J1.2(b)(1)(B) Causing/Threatening Injury or Damage +8

U.S.S.G. § 2J1.2(b)(2) Substantial Interference With Justice +3

U.S.S.G. § 2J1.2(b)(3)(C) Extensive Scope, Planning, or Preparation +2

U.S.S.G. § 3C1.1 Obstruction (destroying documents) +2

Total 29

Apropos of nothing (except that this conspiracy is getting closer to Roger Stone), this is precisely the same guidelines calculation as DOJ used with Stone, and — except for threatening a judge rather than deleting Facebook — for the same reasons.

So Paul Hodgkins, who obstructed the vote by going alone to the Senate floor and occupying that space with people like Jacob Chansley, faces 15 to 21 months, whereas Young, by planning ahead with a militia and going into the day planning for violence, faces 63 to 78 months (though avoids the terrorism enhancement that DOJ has been hinting they may use against the conspirators).

What is and is not in Young’s Statement of Offense

With that as background, I’d like to look at what got included and excluded in Young’s SOO, and what got excluded (which I’ll argue may hint at what he’ll cooperate with DOJ on).

The core of Young’s SOO substantiates the obstruction charge in language similar to that used with Hodgkins:

16. At the time Mr. Young forcibly entered the building, Mr. Young believed that he and the co-conspirators were trying to 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 the statutes listed in sections 15 through 18 of title 3 of the U.S. Code.

17. Mr. Young acted to affect the government by stopping or delaying the Congressional proceeding, and, in fact, did so. He accomplished this by intimidating and coercing government personnel who were participating in or supporting the Congressional proceeding.

In addition, ¶¶20-21 describe Young deleting his Facebook account and some of what he deleted, and ¶¶8-15 and ¶¶18-20 describe most of the overt acts attributed to him in the Fourth Superseding, correlating this way:

¶8 of the SOO describes making plans.

¶9 describes Young and “at least some of the co-conspirators” discussing the need for operational security includes a Proton Mail exchange in which Joseph Hackett described sending pictures to discuss, “locations, identities, Ops planning … to avoid digital reads.”

¶10 describes Young traveling with “at least one of the co-conspirators” — language of his SOO that will be used as evidence against his own sister, Laura Steele — to DC.

¶11 describes the Trump rally in very oblique terms: “an event near the White House.”

¶12 describes — again, in innocuous terms, “marched with at least some of the co-conspirators towards the U.S. Capitol” — as described as The Stack “preparing for battle and marching to the Capitol” in ¶101 of the Fourth Superseding.

¶13 describes entering the restricted grounds of the Capitol (one of the trespass charges) and what gear he wore.

¶14 describes The Stack entering the Capitol, as described in ¶132 of the Fourth Superseding.

¶15 describes The Stack walking through a damaged door (substantiating the 18 USC 1361 charge Young is no longer charged with) and tussling with cops.

As noted, ¶¶16-17 allocute the obstruction of the vote count.

¶18 describes six members of The Stack specifically pushing against a line of cops guarding the hallway (substantiating the Civil Disorder charge Young is no longer charged with but his sister is).

¶19 describes Young exiting the Capitol.

¶20 describes the content of something Young tried to delete from his Facebook account: “At around 4:22 p.m., Mr. Young posted on Facebook, “We stormed and got inside.'”

Even on its face, the SOO has Young admitting to overt acts, under oath, that implicate a number of his co-conspirators, especially Jessica Watkins, Hackett, and his sister, Laura Steele. That’s part of what DOJ got from Young in this plea deal: sworn testimony and therefore more pressure to plead against other alleged conspirators. This probably won’t be the last time in the January 6 investigation — possibly even in this conspiracy — that DOJ requires family members to testify against family members to get a plea deal.

But there are other things described in the Fourth Superseding that either don’t show up in the SOO or show up in such oblique fashion that they likely point to area where Young gave prosecutors something they didn’t have.

For example, the Fourth Superseding describes Young’s own effort to join the Oath Keepers, his efforts to recruit others, and his role in rushing his sister through the process (an utterly disastrous favor that Steele’s big brother did for her). If that’s covered in his SOO, it’s only in this vague language.

In advance of January 6, 2021, Mr. Young coordinated with certain individuals and affiliates of the Oath Keepers – referred to here as “the co-conspirators” – in making plans for what Mr. Young and the co-conspirators would be doing in Washington, D.C., on January 6.

In addition, the Fourth Superseding included details of a Signal planning chat in which Young was included.

At least as early as January 3, 2021, WATKINS, KELLY MEGGS, YOUNG, HARRELSON, HACKETT, DOLAN, ISAACS, and others known and unknown joined an invitation-only encrypted Signal group message titled “OK FL DC OP Jan 6” (hereinafter the “Florida Signal Chat”).

We know nothing of what was said on this chat. The uncertainty about when it was established suggests that the government may have obtained what it has of this chat via someone whose phone took some time to exploit, someone (possibly including Young) who was a relatively late addition to it. But certainly, whatever did take place on this chat would be one of the things incorporated into the “making plans” bullet described in the indictment, and key to showing not just that the Oath Keepers had entered into a conspiracy to conduct this operation, but probably details of how they coordinated with other militias in Florida

Relatedly, there’s the firearms training session Young set up, which is not included in his SOO but is included in the larger conspiracy.

47. On December 26, 2020, YOUNG wrote an email to a Florida company that conducts training on firearms and combat. YOUNG wrote, in part, “I trained with you not long ago. Since then I have joined Oath Keepers. I recommended your training to the team. To that effect, four of us would like to train with you, specifically in your UTM10 rifle class.”

Given how obliquely the SOO refers both to Young’s activities at the Trump rally and the decision to leave before it ended to head to the Capitol, I suspect he provided new details on that, as well.

We may not learn these details for weeks if not months (we still have no idea what Schaffer has been doing since he pled in April).

All DOJ’s telling us is that Graydon Young’s plea deal will make things worse for his co-conspirators, giving them even more incentive to flip on their own right.

Update: Benny Bryant reminds me that we do know some stuff about that Florida Signal chat, because it shows up in the government’s response to Kenneth Harrelson’s bid for bail. He also argues that the weapons training Young signed up for is not the training that the Meggses set up. [Deleted reference to Stone there.]