Posts

Enrique Tarrio Really Doesn’t Want the FBI to Search His Laptop

While there has been a close focus on the federal charges against the terrorists who mobbed the Capitol on January 6, there has been less focus on the lawfare Proud Boy leader Enrique Tarrio has been waging in his DC case.

Tarrio likely avoided federal charges like those filed against Proud Boy leaders Joe Biggs and Ethan Nordean by getting arrested two days earlier on charges associated with vandalizing a Black church and possession of a firearm. But Tarrio is complaining that his bail conditions — which prohibit him from entering DC except for reasons related to his prosecution — violate his First Amendment.

Thus, undersigned counsel invites the government to explain, at a hearing before the Court, what reasonable and credible justification it can offer for barring from the District of Columbia a person who is accused of a possessory felony offense (that does not even involve possession of bullets or a gun) and misdemeanor destruction of a Black Lives Matter flag.

[snip

This ban is especially harsh in Mr. Tarrio’s case, as: (1) he is an activist who needs to be in the District from time to time to organize and protest; (2) many American citizens are concerned about the policies of the Biden administration and thus have a right to redress by appearing at protests in the District; and (3) trials are extremely delayed due to the COVID-19 pandemic, meaning that the “temporary” ban from the District will likely, in effect, result in a long-term ban if this Court does not modify it.

More interesting still, Tarrio moved to require the court to have a hearing before granting a warrant to search the phone or laptop that were seized from Tarrio when he was arrested (and he’s particularly interested in getting his laptop returned to him if and when the DC cops image it in response to a warrant).

Given the privacy interests at stake and the important legal issues at play, Mr. Tarrio requests that any execution, or issuance, of a warrant be temporarily halted to provide undersigned counsel the opportunity to respond. Further, defense counsel should be notified of, and be allowed to attend, any government/police request/application for a search warrant of Mr. Tarrio’s electronic devices (including his cell phone and laptop computer), online accounts, or any other item in which Mr. Tarrio has a privacy interest.

The DC Superior court rejected both requests (Tarrio is appealing the bail motion). In the latter case, Judge Robert Okun did so because the court has not issued a warrant, and Tarrio has no right to make a pre-emptive challenge in any case.

If I understand the posture of the request, however, nothing happening in the DC Superior court would prevent the DC US Attorney’s office from asking the DC District Court for a warrant to serve on the DC police — which is where they’d go if they were seeking the contents of the laptop as part of its January 6 investigation.

When Tarrio assaulted the Asbury United Methodist Church in December, he did so knowing it would create a cause among the far right. The same may be true of his decision to bring two magazines to DC — it may have been deliberate provocation in an attempt to bring a Second Amendment challenge.

So that may be all that’s going on here — an attempt to play the victim.

That said, given first the WaPo and now a NYT report that the DC US Attorney’s office is considering opening an investigation into the role that Tarrio’s buddy Roger Stone played in the insurrection — conveniently timed leaks that will ensure this comes up in Merrick Garland’s confirmation hearing tomorrow — I wonder whether Tarrio was stupid enough to bring a laptop to his insurrection with something genuinely sensitive on it.

Trump’s Role in a Seditious Conspiracy Won’t Go Away with an Impeachment Vote

There’s a conventional wisdom about the Donald Trump’s second impeachment trial, scheduled to start in ten days. WaPo predicts that impeachment will leave no more than a “bitter aftertaste.”

The Senate is hurtling toward an impeachment trial that will accomplish almost nothing by design and likely leave everyone with a bitter aftertaste.

Democratic voters will be furious that GOP senators refused to hold former president Donald Trump accountable for his role in encouraging supporters to march to the Capitol on Jan. 6. Republicans will be upset that congressional Democrats went through with an impeachment trial three weeks after Trump left the White House.

And independent voters, more focused on the health and economic crises fueled by the coronavirus pandemic, will wonder why Congress prioritized an impeachment process at all.

Perhaps most telling, WaPo describes Trump’s role as “encouraging” his supporters to march to the Capitol.

It’s true the word, “encouraged” appears in the article of impeachment against Trump.

He also willfully made statements that, in context, encouraged—and foreseeably resulted in—lawless action at the Capitol, such as: ‘‘if you don’t fight like hell you’re not going to have a country anymore’’. Thus incited by President Trump, members of the crowd he had addressed, in an attempt to, among other objectives, interfere with the Joint Session’s solemn constitutional duty to certify the results of the 2020 Presidential election, unlawfully breached and vandalized the Capitol, injured and killed law enforcement personnel, menaced Members of Congress, the Vice President, and Congressional personnel, and engaged in other violent, deadly, destructive, and seditious acts. [my emphasis]

But that description skips the “foreseeably result[ing]” in the interruption of the certification of the vote, the threats to Members of Congress, the deadly sedition that are also included in the article of impeachment.

Moreover, it ignores the other part of the article of impeachment, Trump’s other efforts to subvert democracy (the article describes his January 2 call to Brad Raffensberger explicitly), to say nothing of the description of Trump as a threat to national security.

President Trump’s conduct on January 6, 2021, followed his prior efforts to subvert and obstruct the certification of the results of the 2020 Presidential election.

[snip]

Wherefore, Donald John Trump, by such conduct, has demonstrated that he will remain a threat to national security, democracy, and the Constitution if allowed to remain in office, and has acted in a manner grossly incompatible with self-governance and the rule of law.

That’s a notable oversight, particularly given the — inexplicable — claim from ascendant Senate Judiciary Committee Chair Dick Durbin that we may never learn the full extent of Trump’s role in the coup attempt.

Sen. Richard J. Durbin (D-Ill.), the incoming chairman, said he would leave procedural questions up to the House managers.“I’m waiting to hear what their proposal is, but for us to suggest a trial strategy for the House managers, I don’t think that’s our job,” Durbin said.

So, instead, the Senate will rush through a trial in which the only evidence likely to be presented will be the stuff that senators themselves already lived, video clips of rioters breaking into the Capitol as senators fled through underground tunnels to their secure location.

Senators will likely not even attempt to answer the fundamental questions of every impeachment trial — what did the president know and when did he know it?

“It will be surprising to me if we ever know the answers to that,” Durbin said.

It may be true that impeachment managers will restrict themselves to the public record, though even that might include testimony from Raffensperger and evidence collected as part of the prosecution of insurrectionists. Q-Shaman Jacob Chansley even says he’d be willing to testify.

Lawyer Albert Watkins said he hasn’t spoken to any member in the Senate since announcing his offer to have Jacob Chansley testify at Trump’s trial, which is scheduled to begin the week of Feb. 8. Watkins said it’s important for senators to hear the voice of someone who was incited by Trump.

Watkins said his client was previously “horrendously smitten” by Trump but now feels let down after Trump’s refusal to grant Chansley and others who participated in the insurrection a pardon. “He felt like he was betrayed by the president,” Watkins said.

The words of Trump supporters who are accused of participating in the riot may end up being used against him in the impeachment trial. Chansley and at least four others people who are facing federal charges stemming from the riot have suggested they were taking orders from Trump.

If insurrectionists were to testify in person, the attendant security of orange jumpsuits and leg manacles might provide some sobering visuals (though COVID and real security concerns almost certainly rules that out).

But it seems foolish for any Senator to assume that the vote they’ll cast in a few weeks will make this thing go away forever.

That’s not even true for their Ukraine impeachment votes. Yesterday, Ukraine announced (much to Lev Parnas’ glee that Rudy Giuliani finally got Ukraine to announce an investigation) that it is launching a criminal probe into those — inside and outside Ukraine — who attempted to interfere in the 2020 election.

Andriy Yermak, the head of the office of Ukrainian President Volodymyr Zelenskiy, said on January 28 that Ukraine would do everything in its power to bring to justice forces within the country and outside it who attempted to damage relations between Ukraine and the United States.

“The State Bureau of Investigation has opened a criminal case,” Yermak was quoted as saying in an interview to the Ukrainian news outlet NV that was posted on the presidential website.

“The investigation is under way, and we are waiting for its results. The investigation must answer a lot of questions,” Yermak added.

Without anyone in the United States lifting a finger, then, Ukraine may provide damning new evidence about Trump’s attempt to coerce assistance on his “perfect phone call” with Volodymyr Zelensky that will make GOP negligence during the last impeachment more damning.

And in the case of the January 6 insurrection, DOJ has already mapped out a conspiracy charge that Trump could easily be charged under as well.

PURPOSE OF THE CONSPIRACY

18. The purpose of the conspiracy was to stop, delay, and hinder Congress’s certification of the Electoral College vote.

MANNER AND MEANS

19. CALDWELL, CROWL, and WATKINS, with others known and unknown, carried out the conspiracy through the following manner and means, among others, by:

a. Agreeing to participate in and taking steps to plan an operation to interfere with the official Congressional proceeding on January 6, 2021 (the “January 6 operation”);

b. Using social media, text messaging, and messaging applications to send incendiary messages aimed at recruiting as large a following as possible to go to Washington, D.C., to support the January 6 operation;

Meanwhile, Acting DC US Attorney Michael Sherwin has repeatedly refused to rule out incitement charges. Indeed, I’ve argued that DOJ almost certainly will need to incorporate at least Mike Flynn, if not Trump himself, in their description of the crimes of January 6, if only to distinguish the events of that day from other protected First Amendment activity — and at least some prosecutors in DC closer to the overall investigation seem to be doing that.

There’s no guarantee that Merrick Garland’s DOJ will have the courage to pursue Trump’s role in this (though thus far, Bill Barr appointee Michael Sherwin has not shied from such an investigation, and if he oversaw such a decision it would mitigate the political blowback). There’s no sign, yet, that DOJ has identified how the coup attempt tied into Rudy’s attempts to delay the certification.

But no Senator serving as juror in this impeachment should assume the investigation won’t, inevitably, disclose the machinations that tied Trump’s efforts to stay in office to the death and destruction on January 6. Indeed, there’s no guarantee that the actions of key jurors — like Josh Hawley and Ted Cruz for inciting the mob, Tommy Tuberville for his direct coordination with Rudy, and Lindsey Graham for his own efforts to throw out votes in Georgia and his meeting with accused insurrectionist Joe Biggs — won’t ultimately be incorporated into the larger conspiracy.

And so while it may be easy for lazy political journalism to spout conventional wisdom about everyone wanting to move on, this time around it is as likely as not that the votes cast next month will age poorly as the investigation into how Trump’s action ties to the death and destruction continues.

“Stand Back and Stand By:” The Proud Boys Node of the January 6 Attack

As I and others have reported, a node of three people with ties to the Oath Keepers is, thus far, the first sign of a larger conspiracy charge in the government’s investigation of the January 6 insurrection.

It’s clear the government believes they can get there with the Proud Boys, either in conjunction with or parallel to the Oath Keepers. But they’re not there yet.

I want to lay out what they’ve shown about the Proud Boys operations thus far.

In addition to Enrique Tarrio (who was arrested before the riot for vandalizing a black church in December), the government has identified six people as Proud Boy adherents in affidavits (plus Robert Gieswein, who coordinated with them):

While some of these — notably, Bryan Bentancur, who lied to his parole officer about handing out bibles to excuse a trip to DC that day — were caught incidentally, it’s clear that Biggs and Pezzola were priorities, the former for his leadership role in the group and the latter for his appearance in videos breaking in a window with a police shield.

Between these affidavits, the government has provided evidence that the Proud Boys plan their operations in advance, with this quote from a Joe Biggs interview.

When we set out to do an event, we go alright, what is or main objective? And that’s the first thing we discuss. We take three months to plan an event. And we go, what’s our main objective? And then we plan around that, to achieve that main objective, that goal that we want.

In the case of the January 6 insurrection, that pre-planning involved creating a false flag to blame Antifa. The government showed this in a Tarrio message posted in December.

For example, on December 29, 2020, Tarrio posted a message on the social media site Parler1 about the demonstration planned for January 6, 2021. Among other things, Tarrio announced that the Proud Boys would “turn out in record numbers on Jan 6th but this time with a twist… We will not be wearing our traditional Black and Yellow. We will be incognito and we will be spread across downtown DC in smaller teams. And who knows….we might dress in all BLACK for the occasion.” I believe the statement about dressing in “all BLACK” is a reference to dressing like the group known as “Antifa,” who the Proud Boys have identified as an enemy of their movement and are often depicted in the media wearing all black to demonstrations.

And the government showed agreement between Tarrio and Biggs with this similar message from Biggs.

On or around the same day, BIGGS posted a similar message to his followers on Parler in which he stated, among other things, “we will not be attending DC in colors. We will be blending in as one of you. You won’t see us. You’ll even think we are you . . .We are going to smell like you, move like you, and look like you. The only thing we’ll do that’s us is think like us! Jan 6th is gonna be epic.” I understand that BIGGS was directing these statements at “Antifa.”

Daniel Goldwyn, texting that day, addressed the claim of a false flag on texts.

The government provided evidence that members of the Proud Boys had followed the false flag plan, with pictures of the men marching through DC “incognito” before the insurrection.

On January 6, 2021, an individual that I have identified as BIGGS and a group of people that hold themselves out as Proud Boys were depicted on the east side of the U.S. Capitol. Consistent with the directive issued by organizers of the Proud Boys, including Tarrio and BIGGS, none of the men pictured are wearing Proud Boys colors of black and yellow, but are instead dressed “incognito.” Indeed, BIGGS, wearing glasses and a dark knit hat, is dressed in a blue and grey plaid shirt.

In Biggs’ affidavit (the most recent of the six), the government also provided evidence of communications between members during the attack.

Your affiant has reviewed additional footage from the events inside the U.S. Capitol. In one image, shown below, Pezzola appears to have what I believe to be an earpiece or communication device in his right ear. In my experience, such a device could be used to receive communications from others in real time. Your affiant also notes that multiple individuals were photographed or depicted on videos with earpieces, including other individuals believed to be associated with the Proud Boys. For instance, in the picture of the Proud Boys referenced above in Paragraph 13, an individual believed to be part of the group is pictured wearing a similar earpiece.

Your affiant has also identified certain Proud Boys at the U.S. Capitol on January 6, 2021, who appear to have walkie-talkie style communication devices. For instance, in the picture of the Proud Boys referenced above in Paragraph 13, both BIGGS and the individual next to him have such devices on their chests.

Gabriel Garcia is described as captain by another of the men (though it’s unclear whether thank rank was replicated in the group).

Additionally, on January 8, 2021, the FBI received information from the public regarding a separate subject (“S-1”). S-1 uploaded to Facebook pictures of himself inside of the Capitol building on January 6, 2021. As FBI Agents reviewed the evidence related to that report, they discovered that S-1 posted a status on Facebook tagging GARCIA and calling him “El Capitan.” The caption reads, “El Capitan doing his duty. Gabriel Garcia.” Systems checks reveal that GARCIA is a former captain in the United States Army. GARCIA also uses the handle “Captain” as his display name on the social media platform Telegram

Affidavits provide two different descriptions of Pezzola being among the first to break into the Capitol.

One such video depicts an individual, now identified as Proud Boys member Dominic Pezzola, breaking the window of the U.S. Capitol Building with a clear plastic shield at approximately 2:13 p.m.3 Shortly after the glass in the window is broken, an unidentified individual can be heard yelling words to the effect of, “Go, Go, Go!” Several individuals enter the building through the broken window, including Pezzola. A nearby door was opened and a crowd of people began to enter the U.S. Capitol.

This one comes from the Pezzola affidavit.

On January 8, 2021, FBI received a lead depicting publicly available photographs and videos of an unknown individual breaking the window of the U.S. Capitol Building, which is located in Washington, D.C., with a clear plastic shield, and then entering the Capitol building. According to time and date stamps, this occurred on January 6, 2021, at approximately 2:39 p.m.. Below are screen shots from one such video. In the video, soon after the glass in the window is broken, an unidentified individual can be heard yelling words to the effect of, “Go, Go, Go!” The individual with the shield is depicted in the video as entering the Capitol building, while still holding the shield. The screen shot on the left shows the individual breaking the window, and the screen shot on the right, which is taken seconds after the other screenshot, shows his face.

The government has provided some (albeit thus far, scant) evidence that one plan was to target members of Congress, which Garcia calling Pelosi out personally.

Approximately 35 seconds into the video, GARCIA says loudly, “Nancy come out and play.”

There is a witness (who may not be entirely reliable) describing the group to be armed.

W-1 stated that other members of the group talked about things they had done during the day, and they said that anyone they got their hands on they would have killed, including Nancy Pelosi. 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.1 W-1 stated the men said they all had firearms or access to firearms.

In Biggs’ affidavit, the government describes Biggs disclaiming having any advance plan.

On or about January 18, 2021, BIGGS spoke with agents of the FBI after video emerged online of him inside the U.S. Capitol. BIGGS stated, in substance and in part, that he was present in Washington, D.C. for the demonstration on January 6, 2021. BIGGS admitted to entering the Capitol building on January 6, 2021, without forcing entry. BIGGS informed the interviewing agent that the doors of the Capitol were wide open when he made entry into the building. BIGGS denied having any knowledge of any pre-planning of storming the Capitol, and had no idea who planned it.

And in two cases, the government has provided evidence that the group was responding to Trump’s orders.

On November 16, 2020, OCHS made a post to the social media site Parler, in which he forwarded a Tweet by President Trump declaring, “I WON THE ELECTION!” and OCHS stated, “Show this tweet to leftists and say they won’t do shit when he just keeps being president. Don’t say it was stolen or rigged. Just say we’re doing it and they won’t fight back. They are getting scared, and they don’t function when they’re scared.

In Goodwyn’s case, the government shows him adopting Trump’s avatar on Twitter and repeating Trump’s own line from the debate, “Stand back and stand by.”

Again, this is just what’s public two weeks after the attack, and just those whom the government identified as members. There are others (notably John Sullivan, whose brother has not been arrested but who has ties to the group), who would be obvious candidates to flip to learn more about the group, and there are some tangential figures not included here.

This route is one of the most likely ones via which the government will tie the violence to those close to Trump trying to undermine the election and — with Trump’s “Stand back and stand by” comment — possibly even Trump.

Update: Corrected how Pezzola broke in.

Update: Tarrio was also offering to pay for lawyers for people.

Update, 1/26: I’ve added Robert Gieswein to this list, based on this WSJ video showing him involved throughout the day with the Proud Boys.

Update, 1/27: I’ve added Andrew Bennett, who was described as wearing a Proud Boy hat in his affidavit.