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Ethan Nordean’s Funny Idea of Exculpatory

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In a filing overnight probably designed to feature in his appeal of his detention, Ethan Nordean accuses the government of sitting on exculpatory information.

Among the Telegram texts that Nordean posts is one showing that he remained in a leadership position — able to make a decision to ban Proud Boy rallies for three months — on January 21, over two weeks after the insurrection (the “owner” moniker may also suggest he ran the Proud Boy channel in question).

Another thing that Nordean thinks is exculpatory is another commenter claiming that “nothing could be further than the truth” than that the Proud Boys “led the Trump rally to the capitol.”

It’s a fair point from Captain Trump actually.

But that’s because the Proud Boys weren’t at the Trump rally. Instead, they were at the Capitol, with no excuse about coming to hear Trump.

Which makes Nordean’s citation to his own comment about Joe Biggs’ complaint pretty damning as well.

Biggs’ complaint, which was built entirely off public comments about Proud Boy planning, shows a picture of a large Proud Boys group already close to the Capitol by 12:15. It shows their use of radios (they would get details of the preplanned channel they used weeks later). It shows a group wearing pre-coordinated orange hats.

It also describes how Proud Boys started recruiting people to come to DC no later than December 29.

9. 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.

10. 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.”

11. Separately, BIGGS has described the Proud Boys’ efforts, in general, to plan for demonstrations and events attended by the Proud Boys. In an interview that was purportedly taped in December 2020 and posted online on or about January 3, 2021, BIGGS described how he, as an organizer of Proud Boys events, sets about planning them. BIGGS explained, in part:

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 other words, the complaint that Nordean complains (at a time when a number of people he interacted that day had already been arrested) shows pre-planning not to attend a Trump speech — which is what tens of thousands of people were planning on doing that day, but instead to not attend a Trump speech, and instead wait by the Capitol for key events to transpire.

In any case, Nordean explains one reason why these texts weren’t provided right away: because he asked just for five days of Telegram chats at first, not the later ones. These aren’t the texts that, Nordean believed, were going to be the most helpful.

On March 25, Nordean requested that the government produce, at least by March 30, Telegram chats on Nordean’s phone sent and received between 1/4/21 and 1/8/21. Nordean did not say that no other chats should be produced, nor did he waive any right to Brady material of which the government was aware. On March 9, Nordean served a discovery letter on the government seeking all of the defendant’s statements and requesting that Brady material be produced according to the schedule in Rule 5.1.

Another likely reason is that a protective order has not been signed in this case yet, as compared to a slew of other ones, meaning prosecutors are still going to focus on the evidence backing the indictment (and so the texts from before the insurrection, not after).

The charges already allege that Charles Donohoe encouraged everyone to write exculpatory things in their Telegram chats starting on January 5, in the wake of the Enrique Tarrio arrest. And here, Nordean managed to still provide evidence of a claim he has earlier contested: that he had a leadership role in this militia group.

In Adding Matthew Greene to a Conspiracy with Dominic Pezzola, DOJ Formally Alleges the Proud Boys Committed a Crime of Terrorism

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At a detention hearing for Charles Donohoe yesterday, Magistrate Judge Michael Harvey asked a long series of questions, including what a “normie” is, what Telegram is (it is stunning that a DC Magistrate doesn’t know that, but that’s a testament they won’t accept US legal process), and whether “Milkshake,” who had been described saying a lot of really damning things in an organizational channel, was part of the conspiracy. AUSA Jason McCullough said that DOJ is still assessing Milkshake’s — whose real name is Daniel Lyons Scott — criminal liability, but since he was filmed fighting with some cops, I’d be arranging legal representation if I were him.

Along the way, however, the questions led McCullough to provide several new details on the Proud Boy conspiracy. One question he didn’t answer is whether the government knows that Donohoe succeeding in “nuking” some texts describing organizational efforts, as he described wanting to do after Enrique Tarrio got arrested.

McCullough also revealed something that was not yet public: the government had rounded up another Proud Boy, Matthew Greene, and indicted him in what I call the Proud Boy “Front Door” conspiracy along with Dominic Pezzola and William Pepe. In doing so, they did something more important for their larger case. First, they changed the purpose of the conspiracy from what it was originally charged to match all the other militia conspiracies (from busting through the first door to obstructing the vote count). Here’s what the militia conspiracies currently look like as a result:

It was probably fairly urgent for DOJ to do this (and Greene’s inclusion may have been just a convenient rationale). Here’s how the indictment changed from the original Indictment to the Superseding one (S1):

In general, the government is charging Pepe and now Greene with more than they originally charged Pepe with based on a theory that they abetted Pezzola’s alleged crimes. But the critical change is highlighted. Originally (marked in pink), just Pezzola was charged for breaking the window through which the initial breach of the Capitol happened. But in this indictment (marked in yellow), DOJ charges Pepe and Greene for abetting Pezzola in breaking that window.

The reason they did this is because 18 USC 1361 is the crime for which DOJ is arguing that all key Proud Boy defendants can be detained pre-trial, not just Pezzola, but also Joe Biggs, Ethan Nordean, Zach Rehl, and Charles Donohoe. In detention hearings, the government has argued that it counts not just as a crime of violence that allows the government to argue that a defendant is eligible for detention, but also that, because it was done to coerce the conduct of government, it triggers a terrorism designation for detention purposes.

This is how the argument looks in detention memos:

As it did before, the United States moves for detention pursuant to 18 U.S.C. § 3142(e)(3)(C), which provides a rebuttable presumption in favor of detention for an enumerated list of crimes, including Destruction of Property in violation of 18 U.S.C. § 1361. The United States also seeks detention pursuant to 18 U.S.C. § 3142(f)(1)(A), because Destruction of Property, in violation of 18 U.S.C. § 1361, is a crime of violence. Moreover, when Destruction of Property is “calculated to influence or affect the conduct of government by intimidation or coercion,” it also qualifies as a federal crime of terrorism. See 18 U.S.C. § 2332b(g)(5)(B).

This was an issue in the Monday detention hearing before Judge Tim Kelly for Biggs and Nordean. After the hearing, he required the government to submit a picture of Pezzola breaking that window.

And it will likely become an issue when Joe Biggs, at least, appeals his detention, as he noticed he would do yesterday (it would be a still bigger issue in Nordean or Donohoe’s case).

In fact, the government has been making this argument for some time.

But it wasn’t until this supserseding indictment that the government formally aligned Pezzola’s actions — including spectacularly breaking that first window with a riot shield — with the rest of the Proud Boy indictments, in fact making them (as the government has already argued) the same conspiracy, a conspiracy involving terrorism.

Tables Flipped: With Cooperation Agreement, Oath Keeper Jon Schaffer Will Get Protection from US Marshals

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As I’ve been suggesting might happen for some time, heavy metal musician Jon Schaffer just pled guilty, the first of any January 6 defendants to plead guilty. While many of the documents pertaining to his plea have not been released yet, his information has. He pled guilty to Obstruction of an Official Proceeding and Entering a Restricted Area with a Deadly Weapon (for the bear spray he sprayed at police). On the Obstruction charge, Schaffer is facing serious enhancements for the bear spray. But with the plea, Schaffer will avoid what was surely going to be an assault charge, as well as inclusion in the Oath Keeper conspiracy. And all that’s before the cooperation he has agreed to provide prosecutors, which should help him cut his criminal exposure significantly, especially as the very first January 6 defendant to plead guilty.

From the sounds of things — prosecutor Ahmed Baset described Schaffer as the “tip of the mob” breaching the building and said he entered at 2:40 — Schaffer will be implicated in the breach of the east entrance to the Capitol, meaning his testimony may implicate everyone who went in with him (likely including all the currently charged Oath Keepers, Joe Biggs, and several other Proud Boys). [Update: Schaffer went in the west door, not the east one, but the timing is still of acute interest, as it means the door Schaffer went in was breached at the same time as the east door.] DOJ might be thinking of naming Schaffer an unindicted co-conspirator on the Oath Keeper conspiracy, which would put all of them on the hook for Schaffer’s violent actions, dramatically increasing their criminal exposure.

In addition, Schaffer’s plea sets an important precedent on several legal issues that will be contested by other defendants, Oath Keeper or not. Those include:

  • Whether bear spray is a deadly weapon (which will affect the men accused of attacking Brian Sicknick and others — like Roberto Minuta — who brought bear spray into the Capitol)
  • Whether the vote count and Mike Pence’s presence in the Capitol made the building a “restricted building” for the purpose of 1752
  • Whether obstruction — normally used for criminal prosecutions — applies to the vote count (this is particularly critical, as it is how DOJ has made participation in the insurrection a felony for the more serious defendants)
  • Whether two enhancements — for violence and significant interference — apply to the obstruction charge

As Judge Amit Mehta noted, this doesn’t preclude litigation in other cases, but both sides agreed that this legal stance applies to the January 6 riot.

Schaffer will be released from jail, meaning he can return to touring as a musician (which was likely one of the big inducements for him to plead).

But the most remarkable thing about this plea agreement comes with the public nature of it. Mehta had thought that DOJ would want to do this in sealed fashion, but Baset was quite clear that DOJ wanted this to be public. That means everyone will know that Schaffer is a key witness against a highly trained militia.

And one of the things Mehta seems to have raised in a closed part of the hearing is that that puts Schaffer at great risk.

So DOJ agreed that Schaffer — who on January 5 was among the Oath Keepers purportedly providing “security” for Roger Stone — will be provided security by US Marshals under DOJ’s witness protection program.

A member of Roger Stone’s “security” detail will for the foreseeable future, then, be provided with “security” by the US government.

Update: Here’s his plea. He signed it Wednesday, which means it’s likely he had a grand jury appearance Friday morning before he allocuted before Judge Mehta. [Fixed my day of the week problems.]

Update: They’ve calculated Schaffer’s base offense level, before reductions for pleading, to be 25, which would represent a sentence of 57-71 months in the sentencing table. If they add Schaffer as an unindicted co-conspirator to the Oath Keeper conspiracy, it would put them on the hook for his violence, even before the conspiracy charge.

Update: I was being a bit loose with my reference to Stone. The Oath Keepers, in which Schaffer has pled to be a member, provides security for Stone. While Schaffer associates with some of the people who did provide security, there’s no evidence he personally did.

DOJ Arresting Their Way to Clarity on Joe Biggs’ Two Breaches of the Capitol

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The Proud Boys Leadership conspiracy indictment describes that Joe Biggs breached the Capitol twice.

He entered first on the west side through a door opened after Dominic Pezzola broke through an adjacent window with a riot shield.

At 2:14 p.m., BIGGS entered the Capitol building through a door on the northwest side. The door was opened after a Proud Boys member, Dominic Pezzola, charged elsewhere, used a riot shield at 2:13 p.m. to break window allowed rioters to enter the building and force open an adjacent door from the inside. BIGGS and Proud Boys members Gilbert Garcia, William Pepe, and Joshua Pruitt, each of whom are charged elsewhere, entered the same door within two minutes of its opening. At 2:19 p.m., a member of the Boots on the Ground channel posted, “We just stormed the capitol.”

Then, Biggs left the building, walked around it, took a selfie from the east side, then forced his way in the east side and headed from there to the Senate.

BIGGS subsequently exited the Capitol, and BIGGS and several Proud Boys posed for a picture at the top of the steps on the east side of the Capitol.

Thirty minutes after first entering the Capitol on the west side, BIGGS and two other members of the Proud boys, among others, forcibly re-entered the Capitol through the Columbus Doors on the east side of the Capitol, pushing past at least one law enforcement officer and entering the Capitol directly in front of a group of individuals affiliated with the Oath Keepers. [my emphasis]

Understanding Biggs’ actions — including whether they were coordinated with the Oath Keepers who entered at virtually the same time as him (including fellow Floridian Kelly Meggs, who had just “organized an alliance” with the Proud Boys in December) — is crucial to understanding the insurrection as a whole.

That’s particularly true given that Biggs re-entered the Capitol and headed to the Senate, where Mike Pence had only recently been evacuated. That’s also true given how Biggs’ actions coincide so neatly with those of the Oath Keepers.

At the moment Pezzola breaks the Capitol window with a shield, Person Ten contacts Joshua James (from Alabama but seemingly affiliated with the Florida Oath Keepers). At the moment Biggs enters the Capitol, someone on the Oath Keepers’ Signal channel informed the list that “The[y] have taken ground at the capital [sic]. We need to regroup any members who are not on mission.” This is a quicker response than the Proud Boys Boots on the Ground channel itself had to the initial breach.

And that’s what happened. Both the Oath Keepers and the Proud Boys regrouped and opened a new front on the assault on the Capitol.

Rhodes called Kelly Meggs. Person Ten called James. Then Rhodes had overlapping phone calls with Person Ten and Meggs. Around that time, The Stack started making their way to an entry of the Capitol on the other side of the building from where they were. And James and Minuta hopped in some golf carts and rushed to the Capitol (I’m not sure from where). During the period when The Stack, commanded by Kelly Meggs, was making their way to the Capitol and Biggs was walking around rather than through it, Roberto Minuta arrived and started harassing the cops guarding the door through which Biggs and The Stack would shortly enter, perhaps ensuring that the cops remained at their post rather than reinforcing the east side.

I had speculated here that Proud Boys in the initial breach — most notably former Army Captain Gabriel Garcia — were live streaming with the intent of providing tactical information to people located remotely who were performing a command and control function.

If you were following Garcia’s livestreams in real time — even from a remote location — you would have visibility on what was going on inside almost immediately after the first group of the Proud Boys breached the Capitol.

In a later livestream, Garcia narrated what happened in the minutes after the Proud Boys had breached the Capitol.

GARCIA states, “We just went ahead and stormed the Capitol. It’s about to get ugly.” Around him, a large crowd chants, “Our house!”

Then, as a standoff with some cops ensued, Garcia filmed himself describing, tactically, what was happening, and also making suggestions to escalate violence that were heeded by those around him.

At minute 1:34, a man tries to run through the line of USCP officers. The officers respond with force, which prompts GARCIA to shout, “You fucking traitors! You fucking traitors! Fuck you!” As the USCP officers try to maintain positive control of the man that just rushed the police line, GARCIA yells, “grab him!” seemingly instructing the individuals around him to retrieve the man from USCP officers. GARCIA is holding a large American flag, which he drops into the skirmish in an apparent attempt to assist the individuals who are struggling with the USCP officers.

USCP officers maintain control of the line, holding out their arms to keep the crowd from advancing. At least one USCP officer deploys an asp. GARCIA turns the camera on himself and offers tactical observations regarding the standoff. [my emphasis]

Garcia’s livestream was such that you would obtain crowd size estimates from it, as well as specific names of officers on the front line, as well as instructions to “keep ’em coming,” seemingly asking for more bodies for this confrontation.

At minute 3:26, GARCIA, who is still in extremely close proximity to the USCP officer line again yells, “Fucking traitors!” He then joins the crowd chanting “Our house!” At minute 3:38, GARCIA states, “You ain’t stopping a million of us.” He then turns the camera to the crowd behind him and says, “Keep ‘em coming. Keep ‘em coming. Storm this shit.” GARCIA chants with the crowd, “USA!”

Soon after, GARCIA stops chanting and begins speaking off camera with someone near him. At minute 4:28, GARCIA says, “do you want water?” Though unclear, GARCIA seems to be asking the person with whom he is speaking. GARCIA is so close to an officer that, as the camera shifts, the only images captured are those of the officer’s chest and badge. [my emphasis]

Remarkably, Garcia filmed himself successfully ordering the rioters to hold the line — which they do — and then filmed them charging the police.

GARCIA yells, “Back up! Hold the line!” Shortly thereafter, the crowd begins advancing, breaching the USCP officer line. GARCIA says, “Stop pushing.” The last moments captured in the video are of the crowd rushing the USCP officers.

A filing arguing for detention for Ethan Nordean confirms that Proud Boys located offsite were monitoring the livestream and providing instructions.

When the Defendant, his co-Defendants, and the Proud Boys under the Defendant’s command did, in fact, storm the Capitol grounds, messages on Telegram immediately reflected the event. PERSON-2 announced, “Storming the capital building right now!!” and then “Get there.” [Un-indicted co-conspirator-1] immediately followed by posting the message, “Storming the capital building right now!!” four consecutive times.6 These messages reflect that the men involved in the planning understood that the plan included storming the Capitol grounds. This shared understanding of the plan is further reflected in co-Defendant Biggs’ real-time descriptions that “we’ve just taken the Capitol” and “we just stormed the fucking Capitol.”

6 UCC-1 and PERSON-2 are not believed to have been present on the Capitol grounds, but rather indicated that they were monitoring events remotely using livestreams and other methods.*

So at least on the Proud Boys side, there was this kind of command and control.

And the government has been arresting their way to some clarity on this point.

Sometime before March 1, the government got access to both the leadership Telegram channel the Proud Boys used to coordinate the insurrection and the “Boots on the Ground” channel, meaning they’ve got monikers for around 35 active Proud Boy participants in the insurrection who have not yet been arrested. In the weeks since the Biggs and Nordean conspiracy indictment disclosed that the government had these chats, the government has arrested several people with ties to one or another of these men (though without saying whether they identified them from the Boots on the Ground channel or whether they arrested them at this time for investigative reasons).

Two of these men just happen to be two of Joe Biggs’ co-travelers the day of the insurrection, Paul Rae and Arthur Jackman, both also from Florida. The complaints for both are very similar, possibly written by the same FBI agent. Both complaints go through the greatest hits of the Proud Boy actions that day, listing all the conspiracies already charged. While the affidavits include the testimony of acquaintances of both men (in Jackman’s case, obtained after a January 19 interview with Jackman himself, meaning that testimony couldn’t be the lead via which they IDed him), the affidavits also focus on their entries with Joe Biggs, with Rae entering the west Capitol door right next to Biggs.

And Jackman walking up steps with his hand on Biggs’ shoulder.

Each affidavit includes the photo obtained from warrants served on Biggs showing the selfie mentioned in the Leader indictment (bolded above).

In Rae’s affidavit, they’ve redacted out all but his face and Biggs’.

They use the same approach in Jackman’s affidavit, redacting the others (including Rae, who had already been arrested).

If I were one of the two other guys in this picture, I’d be arranging legal representation right now.

The affidavits show both men entering the Capitol on the east side, along with Biggs. As he did on the west side, Rae walked in beside Biggs (you can see Jackman just ahead of Rae in this picture).

And as he did elsewhere in the Capitol, Jackman walked with his hand on Biggs’ shoulder.

Jackman’s affidavit shows him in the Senate (where we know Biggs also went).

The government arrested Rae on March 24. They arrested Jackman on March 30. Again, I’d be pretty nervous if I were one of the other two guys.

Because if the government can show that this second breach by Biggs was coordinated with the Oath Keepers, with The Stack led by the guy who arranged an alliance in December, Kelly Meggs, it will make these five separate conspiracies mighty cozy (in any case, the government is already starting to refer to the multiple Proud Boys conspiracies as one).

There’s at least one other action on which both militias may have coordinated: aborted efforts to launch a second wave after 4PM, something that Rudy Giuliani seems to have had insight into.

But for now, the government seems pretty focused on arresting their way to clarity about why Joe Biggs breached the Capitol, then walked outside and around it, and then breached it again.

* I had suggested in this post that UCC-1 might be Nicholas Ochs. But that’s not possible, because the government knows he was onsite. Moreover, the government is now treating defendants in one of the Proud Boys conspiracy indictments (most notably Dominic Pezzola) as co-conspirators with those charged in other conspiracy indictments (including Nordean), so Ochs would be an indicted co-conspirator. Another — far more intriguing possibility — is that it is James Sullivan (who might have a leadership role in Utah’s Proud Boys), who was in contact with Rudy Giuliani about the insurrection, and who inexplicably hasn’t been arrested. Certainly, Rudy seems to have had the information available on those chats in real time.

Days after an Oath Keeper Event with Roger Stone, Kelly Meggs Described Having “Organized an Alliance” with the Proud Boys

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I had been waiting for the moment when DOJ would unveil some of the Facebook content that Graydon Young attempted to delete when he shut down Facebook on January 7. I had similarly been waiting to see how DOJ rolled out Roger Stone as a key pivot between the Florida Oath Keepers (which Kelly Meggs led, and which Stone bodyguards Roberta Minuta and Joshua James were part of) and the Proud Boys (whose key leaders Enrique Tarrio and Joe Biggs live in Florida).

Overnight, in its response to Meggs’ attempt to get bail, the government did both. Ostensibly, they did so to show that Meggs’ interview with the FBI had not been entirely truthful about (among other things) being in DC to protect the cops and vetting Oath Keeper members.

On the first point, yes, Defendant Meggs made a statement to the FBI in the hours following his arrest. But that fact was known at the time of Defendant Meggs’s first detention hearing, and, regardless, simply speaking with law enforcement does not mean that a person is not a danger. This is especially so when some of the statements Defendant Meggs made to the FBI appear to be in conflict with the evidence.

[snip]

This sentiment appears in conflict with Defendant Meggs’s allegation in his motion (and what he stated to the FBI upon his arrest) that he was at the Capitol to help “protect” police officers. (ECF 82 at ¶ 15.)

[snip]

On the evening of January 3, 2021, co-defendant Steele sent an email to Defendant Meggs’s email account at Proton Mail,8 copying co-defendant Young. Steele attached her application and vetting form, and wrote: “My brother, Graydon Young told me to send the application to you so I can be verified for the Events this coming Tuesday and Wednesday.” Defendant Meggs appears to have provided instructions to co-defendant Steele, because the following day (January 4), Steele again sent her application and vetting form to another Oath Keepers email address at Proton Mail. On her email, she copied Defendant Meggs. In contrast to this evidence, Defendant Meggs inexplicably told the FBI that “the only person I’ve ever vetted” was a man six months earlier. Interview Tr. at 28-29.

In a filing that revealed details of Meggs’ Facebook, Signal, ProtonMail, and GoToMeeting use, it described Meggs writing on December 19 — five days after his wife and Young did “security” for Roger Stone at a Stop the Steal rally, evidence of which the government presented (the picture below) in their response to Meggs’ wife’s bid for bond — that he had “organized an alliance between the Oath Keepers, Florida 3%ers, and Proud Boys” to “shut this shit down.”

On December 26, Meggs called this insurrection (albeit in response to Trump’s order) explicitly.

On Christmas, Meggs specifically tied protection, almost certainly of Stone, and coordination with a Proud Boy, almost certainly Tarrio, in the same text.

DOJ included some (not all though: there was one called ““florida dc op planning chat” they don’t seem to have included) of the planning meetings on GoToMeeting.

A week ago, DOJ was content to prove that Connie Meggs’ claims that she didn’t know any of these people by introducing the picture where she and Graydon Young posed with Stone on December 14.

And Defendant Meggs obviously was acquainted with other members of the Oath Keepers group who stormed the Capitol with her on January 6; the photo below, which was shared on Facebook on December 15, 2020, shows Defendant Meggs (red oval) posing at a book signing with several other individuals, including co-defendant Graydon Young (green oval):

Yesterday, prosecutors in this case had to get chewed out because former Acting US Attorney Michael Sherwin blabbed his mouth (completely inappropriately) on 60 Minutes, discussing what at that point had been merely a suggestion, that DOJ’s conspiracy case would integrate three different militia groups.

And the bulk of those cases are federal criminal charges, and significant federal felony charges. Five, 10, 20-year penalties. Of those 400 cases, the majority of those, 80, 85%, maybe even 90, you have individuals, both inside and outside the Capitol, that breached the Capitol, trespassed. You also have individuals, roughly over 100, that we’ve charged with assaulting federal officers and local police officers. The 10% of the cases,  I’ll call the more complex conspiracy cases where we do have evidence, it’s in the public record where individual militia groups from different facets: Oath Keepers, Three Percenters, Proud Boys, did have a plan. We don’t know what the full plan is, to come to D.C., organize, and breach the Capitol in some manner.

By the end of the day (having had their secret blown), DOJ showed that not only had the guy in charge of the Stack been thinking in terms of “insurrection” for over a week, but was also thinking about coordinated action among the different militia.

There’s still a problem with this conspiracy, as constructed. The Oath Keepers had a plan — which DOJ has now presented evidence they coordinated with two other militia groups. But the plan wasn’t limited to preventing vote certification (in part, because when they traveled to DC, they still believed that Trump or Mike Pence might make such an action unnecessary). The plan was insurrection.

But that only makes it more likely DOJ will be forced to charge it as such.

Pezzola

Were Proud Boys Using Livestream for Command and Control … and Other Operational Questions

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Mapping out both the four charged conspiracy indictments against the Proud Boys as well as some — not all — of those with links to the groups who have not been included in the conspiracy indictments, has raised specific questions for me about how the Proud Boys operated that day and how they’re being prosecuted.

Were the Proud Boys using livestreams for command and control?

I’ve had this question more generally: whether someone offsite from the Capitol was providing Command and Control guidance for the assault on the Capitol. But the new “Leadership conspiracy” indictment against Ethan Nordean and Joe Biggs mentions that Gabriel Garcia — along with Joshua Pruitt — were among those who charged on the Capitol in the first wave, along with Dominic Pezzola.

That, by itself, makes me wonder if DOJ is going to expand that “Front Door” conspiracy to include Garcia and Pruitt.

But the content of Garcia’s charging document raises more questions for me.

Garcia is a former Army Captain, so one of the higher ranking former veterans among the Proud Boy defendants. He may have been IDed by what we now know was a request that Facebook provide the IDs associated with all the livestream video uploaded during the insurrection from inside the Capitol (indeed, it was Garcia’s complaint that first led me to suspect the FBI had used one).

Based on information provided by Facebook, Facebook User ID (“UID”) 100000183142825 has a Facebook account under the name “GABRIEL GARCIA.” GARCIA uploaded to his Facebook account at least two “Facebook live” videos taken inside of the Capitol building on January 6, 2021. Additionally, GARCIA uploaded at least one video before entering the Capitol building.

[snip]

In the video, GARCIA is walking east on Constitution Avenue towards the Capitol building with a large group of people. 2

Approximately 20 minutes later, at 19:19:08 UTC, or 02:19pm, GARCIA uploaded to Facebook a video filmed from inside the Capitol building:

If you were following Garcia’s livestreams in real time — even from a remote location — you would have visibility on what was going on inside almost immediately after the first group of the Proud Boys breached the Capitol.

In a later livestream, Garcia narrated what happened in the minutes after the Proud Boys had breached the Capitol.

GARCIA states, “We just went ahead and stormed the Capitol. It’s about to get ugly.” Around him, a large crowd chants, “Our house!”

Then, as a standoff with some cops ensued, Garcia filmed himself describing, tactically, what was happening, and also making suggestions to escalate violence that were heeded by those around him.

At minute 1:34, a man tries to run through the line of USCP officers. The officers respond with force, which prompts GARCIA to shout, “You fucking traitors! You fucking traitors! Fuck you!” As the USCP officers try to maintain positive control of the man that just rushed the police line, GARCIA yells, “grab him!” seemingly instructing the individuals around him to retrieve the man from USCP officers. GARCIA is holding a large American flag, which he drops into the skirmish in an apparent attempt to assist the individuals who are struggling with the USCP officers.

USCP officers maintain control of the line, holding out their arms to keep the crowd from advancing. At least one USCP officer deploys an asp. GARCIA turns the camera on himself and offers tactical observations regarding the standoff. [my emphasis]

Garcia’s livestream was such that you would obtain crowd size estimates from it, as well as specific names of officers on the front line, as well as instructions to “keep ’em coming,” seemingly asking for more bodies for this confrontation.

At minute 3:26, GARCIA, who is still in extremely close proximity to the USCP officer line again yells, “Fucking traitors!” He then joins the crowd chanting “Our house!” At minute 3:38, GARCIA states, “You ain’t stopping a million of us.” He then turns the camera to the crowd behind him and says, “Keep ‘em coming. Keep ‘em coming. Storm this shit.” GARCIA chants with the crowd, “USA!”

Soon after, GARCIA stops chanting and begins speaking off camera with someone near him. At minute 4:28, GARCIA says, “do you want water?” Though unclear, GARCIA seems to be asking the person with whom he is speaking. GARCIA is so close to an officer that, as the camera shifts, the only images captured are those of the officer’s chest and badge. [my emphasis]

Remarkably, Garcia filmed himself successfully ordering the rioters to hold the line — which they do — and then filmed them charging the police.

GARCIA yells, “Back up! Hold the line!” Shortly thereafter, the crowd begins advancing, breaching the USCP officer line. GARCIA says, “Stop pushing.” The last moments captured in the video are of the crowd rushing the USCP officers.

In the arrest affidavit for the Kansas City Proud Boys, a footnote describes how Nicholas Ochs and Nicholas DeCarlo were similarly filming what was going on as the Kansas City Proud Boys successfully thwarted police efforts to shut down access to the tunnels.

Proud Boys Nicholas Ochs and Nicholas DeCarlo can be seen in the background recording the unlawful conduct with their phones and other devices.

While their arrest documents don’t show the two livestreaming on Facebook (and Ochs would later complain about the connectivity inside the Capitol), if they were livestreaming somewhere, it would mean live video of tactically important moments from the siege would have been available to someone outside the Capitol or even someone watching more remotely, from a hotel room or even Florida.

Certainly, Garcia’s stream would be operationally useful if someone were providing command and control remotely. Was someone?

Does DOJ now have a list of all the teams from the Telegram channels?

The latest detention motions for Ethan Nordean and Joe Biggs (as well as the Leadership Conspiracy indictment) describe the process of divvying up the Proud Boys in attendance into teams, which process involves an unindicted co-conspirator who presumably is cooperating.

January 4, 8:20 PM, unindicted co-conspirator: “We had originally planned on breaking the guys into teams. Let’s start divying them up and getting baofeng channels picked out.”

January 5, 9:30 to 9:32 AM, Biggs: “What are the teams. I keep hearing team [sic] are picked already.” A few minutes later, [Biggs] stated “Who are we going to be with. I have guys with me in other chats saying teams are being put together.”

January 5, 9:17 to 9:20 PM, Biggs: “We just had a meeting woth [sic] a lot of guys. Info should be coming out” … “I was able to rally everyone here together who came where I said” … “We have a plan. I’m with [Nordean]. [my emphasis]

The replication of these Telegram chats, from two different channels, stops at 10AM on January 6 (they presumably continued after that time, but we know that Nordean’s phone was turned off during the day).

That suggests DOJ is likely to know what the various teams were and who led them. There were 60 people on the participants’ Telegram channel from that day, which means they may have a lot more teams to indict.

Who paid for the vans from Florida to DC?

The detention memo for Christopher Worrell, a Proud Boy who sprayed law enforcement with pepper spray, reveals that he and his girlfriend traveled to DC on vans paid for by someone else and stayed in hotels also paid for by someone else.

According to Worrell’s live-in girlfriend, who was interviewed by law enforcement on March 12, 2021, she and Worrell traveled to Washington D.C. in the days leading up to January 6, 2021, with other Proud Boys in vans paid for by another individual. Their hotel rooms were also paid for by another individual.

Particularly given that these vans were from Florida — where Tarrio, Biggs, and the key figures from the Oath Keepers all hung out (and hung out with Roger Stone) — the person that paid for these things may be on the hook for any conspiracy ultimately charged as a whole.

What kind of cooperation will DOJ get from the Front Door co-conspirators?

As of right now, just Dominic Pezzola and William Pepe are charged in what I call the “Front Door” conspiracy — the group of people who first breached the Capitol on the west side of the building. As noted above, DOJ itself identified Garcia and Pruitt to have some tie to this group (which makes me wonder if an expanded conspiracy obtained Friday will be released before I’m done with this post!).

But DOJ has not included Robert Gieswein or Ryan Samsel, who were also part of this initial assault. Neither is described as a Proud Boy in their charging documents, but both were with the Proud Boys before the operation. Both men are also on the hook for fairly serious assault charges (a cop that Samsel pushed over got a concussion and Gieswein brought a bat he used). Samsel has not been indicted and the joint request for a continuance (filed way back on February 17) explaining why explicitly states the two sides are seeking a “resolution,” (that is, a plea deal).

The government and counsel for the defendant have conferred, and are continuing to communicate in an effort to resolve this matter.

As to Gieswein, he has been indicted. But his docket has none of the proceedings that cases moving towards trial would have, such as a motion for a protective order (though given the delays on PACER postings that doesn’t definitely mean anything). And well after his magistrate docket in Colorado was closed, he submitted several sealed filings to it.

If I were someone that the government had dead to rights with not just brutal assault, but assault that was tactically important to the success of the entire operation, particularly if I had a criminal record that would add to prison time at sentencing (as Samsel does), I would sure want to help prosecutors assign some responsibility for those assaults to those who guided my actions on that day. Thus far, assault is not included in any of the conspiracy indictments (it is individually charged against Pezzola and a threatened assault was charged against William Chrestman), but if it were, it would raise the stakes of them significantly.

I’m also interested in the case of Chris Kelly. He’s not a Proud Boy. But in advance of his trip, he made it public that he was traveling to DC from NY with some members of the Proud Boys.

I’ll be with ex NYPD and some proud boys. This will be the most historic event of my life.

Kelly also made it clear the NYPD officer was his brother.

The Kelly Facebook Account also shows on January 2, 2021 KELLY messaged another user and stated, “Me and [NAME] plus a couple of others are headed down the 5th and staying 2 nights. Ill be frequency 462.662 on a ham radio if cell service goes down.” Public records databases also revealed Christopher M Kelly has a brother (“S1”) of New City, New York with the same first name used in the above statement. New York City Police Department records confirm S1 is a retired police officer. Based on this statement, and the statement above about traveling with “ex NYPD and some proud boys” your affiant believes that this comment indicated that KELLY planned to travel to Washington, D.C. with S1.

We still don’t know who a cooperating witness against Pezzola and Pepe is, who described to the FBI, almost immediately, a conversation promising that the Proud Boys would have killed Mike Pence had they found him that day. Pezzola had suspected that it was the guy who first recruited him into the Proud Boys and further speculated the conversation reported by the witness occurred on the trip home (which would help to explain how Pepe, also from NY, got included in conspiracy charges with Pezzola). That is, Pezzola believed that the cooperating witness must have been in a car with him from DC to NY.

But the government revealed that they are not prosecuting this cooperating witness.

The defendant speculates that W-1 is a “cooperating witness” with deeper ties to the Proud Boys than the defendant. The defense is incorrect. W-1 has not been charged with a crime in connection with the events of January 6, 2021, and the government is unaware of any affiliation between W-1 and the Proud Boys or any indication that W-1 knew the defendant prior to January 5, 2021.

Kelly can’t be that witness. He had already been charged at the time. But unless I missed his arrest, Kelly’s brother might be. And if his brother were cooperating (which would require honest testimony about what brother Chris had done), then it would raise the chances that Chris Kelly would be too. And why not? If I had traveled to DC with the people who initiated the entire insurrection, I’d want to make damned clear that I wasn’t part of that. Like Samsel, Kelly has not been indicted (publicly) yet.

For some time, the government had been saying they weren’t prepared to make plea deals yet. The inclusion of Co-Conspirator 1 in the Leadership indictment strongly suggests that’s done. And if Samsel and the government were discussing a plea over a month ago, you can be sure he has already proffered testimony to the government.

So the government likely has some cooperators in the “Front Door” conspiracy. The question is only, how much?

There Were 60 Proud Boy “Boots on the Ground” on January 6; Around 23 Have Been Arrested

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According to the conspiracy indictment against Ethan Nordean, Joe Biggs, and others, the Proud Boys used two Telegram channels to organize their January 6 insurrection: a “New MOSD” channel that seems to have been used by top leadership, and a “Boots on the Ground” channel for “Proud Boys members in Washington, D.C.” DOJ didn’t say how many people were members of the former, presumably smaller, channel. But the Boots on the Ground channel had over 60 members.

On January 5, 2021, at 1:23 p.m., a new encrypted messaging channel entitled “Boots on the Ground” was created for communications by Proud Boys members in Washington, D.C. In total, over sixty users participated in the Boots on the Ground channel, including NORDEAN, BIGGS, REHL, DONOHOE, and [an unindicted co-conspirator]. Shortly after the channel’s creation, BIGGS posted a message to the channel that read: “We are trying to avoid getting into any shit  tonight. Tomorrow’s the day” and then “I’m here with rufio and a good group[.]”

While this doesn’t say that every subscriber to the channel participated in the insurrection, surely people who subscribed in the less than 24 hours between the channel creation and the insurrection itself were closely tied to those events.

When I finish updates to this post listing all the random Proud Boys who’ve been charged individually in addition to the 14 charged in one of the four Proud Boy conspiracy cases, I’ll have 23 people who either identify as Proud Boys or operated with them on January 6. That’s consistent with GWU’s very useful report on participants, which showed 20 Proud Boys before about 3 more arrests.

That means there may be as many as 40 more Proud Boys who were actively involved in preparations for January 6 who remain at large. That’s consistent with the videos of large mobs of people marching together through DC that day.

If DOJ knows there were over 60, they presumably have names — either real or monikers — for them, possibly with device information as well.

The Three Key Details the Proud Boy Unindicted Co-Conspirator Likely Revealed to Prosecutors

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By March 1, the government had three pieces of evidence that form a key part of a conspiracy indictment accusing Ethan Nordean, Joe Biggs, Zachary Rehl, and Charles Donohoe of conspiring to breach the Capitol and by doing so, delaying the certification of the vote:

  • The Proud Boys used Baofeng radios set to a specific channel (which channel prosecutors knew)
  • After Enrique Tarrio’s arrest, Ethan Nordean got put in charge of the January 6 operation
  • The gang had a plan to split up to optimize the chances of success

A detention motion for Nordean submitted on that day included all three of these details. It described how the Proud Boys distributed Baofeng radios to use in the operation.

Arrangements were made to program and distribute multiple Baofeng radios5 for use by Proud Boys members to communicate during the event. Baofeng is a Chinese communications equipment manufacturer. Baofeng radios can be programmed to communicate on more than 1,000 different frequencies, making them far more difficult to monitor or overhear than common “walkie talkie” type radios. Specific radio frequencies were communicated to the Proud Boys.

5 Law enforcement recovered a Baofeng radio from Defendant’s home during the execution of a search warrant—the Baofeng radio recovered from Defendant’s home was still tuned to frequency that had been communicated to the group.

[snip]

The group led by Defendant arrived at the east side of the Capitol before noon. Several of the men in the group were holding Baofeng radios. Others had them clipped to their belts or jackets.

It described how Nordean was put in charge after Tarrio’s arrest.

Moreover, following the arrest of the Proud Boys’ Chairman on January 4, 2021, Defendant was nominated from within to have “war powers” and to take ultimate leadership of the Proud Boys’ activities on January 6, 2021.

[snip]

On January 4, 2021, Henry “Enrique” Tarrio, the self-proclaimed “Chairman” of the Proud Boys was arrested shortly after arriving in Washington, D.C., pursuant to a warrant issued by D.C. Superior Court. In communications between Proud Boys members following Tarrio’s arrest, it was acknowledged that Defendant would be among those that led the Proud Boys on the ground on January 6, 2021.

And it described a decision to split people up in an effort to increase the likelihood of actually shutting down the certification of the vote.

As noted more fully below, Defendant—dressed all in black, wearing a tactical vest—led the Proud Boys through the use of encrypted communications and military-style equipment, and he led them with the specific plans to: split up into groups, attempt to break into the Capitol building from as many different points as possible, and prevent the Joint Session of Congress from Certifying the Electoral College results.

[snip]

In order to increase the odds that their plan would succeed, Defendant and those Proud Boys following him dressed “incognito” and spread out to many different locations from which they could force entry into the Capitol. Defendant and others responsible for the January 6 Proud Boys event likely knew from experience that their typical tactic of marching in “uniform,” and in unison, would draw a concentrated law enforcement response to their location. By blending in and spreading out, Defendant and those following him on January 6 made it more likely that either a Proud Boy—or a suitably-inspired “normie”—would be able to storm the Capitol and its ground in such a way that would interrupt the Certification of the Electoral College vote

Even after prosecutors shared these damning claims, their bid to keep Nordean in jail failed. Nordean’s wife filed a declaration stating in part that Nordean obtained the radio on January 7 and, to her knowledge, he did not possess such a radio before that date.

An indictment against Nordean obtained on March 3 to comply with the Speedy Trial Act (but not released publicly until after the detention hearing) mentioned none of that.

And at the March 3 detention hearing before Beryl Howell, according to Zoe Tillman, the government withdrew the claim that Nordean had the Proud Boys split into groups as a factor for that detention hearing. In what the WaPo described as, “a remarkable stumble for prosecutors,”Judge Howell released Nordean to home detention, saying there was little evidence that Nordean played that leadership role.

Nordean “was a leader of a march to the Capitol. But once he got there it is not clear what leadership role this individual took at all for the people who went inside,” Howell said. “Evidence that he directed other defendants to break into or enter the Capitol is weak, to say the least.”

Nordean’s release marked a stumble for prosecutors, who have cast him as a key figure based on what Howell agreed were “ominous” communications before Jan. 6 that they said indicated he and other Proud Boys were planning “violent action” to overwhelm police and force entry to the Capitol. The judge’s decision sets back for now the government’s efforts to establish that there was a wider plot to that end.

[snip]

“The government has backed down from saying that he directly told them to split into groups and that they had this strategic plan,” Howell remarked.

Howell said that although Nordean’s release was a “close call,” she agreed with the defense that “there’s no allegation that the defendant caused injury to any person, or that he even personally caused damage to any particular property.”

Prosecutors claimed they had this evidence on March 1. But after failing to present it at that March 3 hearing, Nordean got released.

On March 15, the judge assigned to the case after Nordean got indicted, Timothy Kelly, issued an order delaying the arraignment scheduled for the next day. He offered no explanation.

What didn’t become clear until this week is that, on March 10, the government obtained the superseding indictment against Nordean and others. And then, on March 12, the government asked Judge Kelly to delay Nordean’s arraignment on his original indictment because of the superseding indictment. Prosecutors explained that revealing the indictment ahead of time would risk alerting Rehl and Donohoe before they could be arrested and their houses searched.

On March 10, 2021, a federal grand jury sitting in the District of Columbia returned a Superseding Indictment charging Defendant, and three co-defendants (two of whom were not previously charged), with Conspiracy, in violation of 18 U.S.C. § 371; Obstruction of an Agency Proceeding, in violation of 18 U.S.C. §§ 1512(c)(2), and 2; Obstructing Law Enforcement During a Civil Disorder, in violation of 18 U.S.C. §§ 231(a)(3), and 2; 18 U.S.C. §§ 1361, and 2; Entering and Remaining in a Restricted Building or Grounds, in violation of 18 U.S.C. § 1752(a)(1); and Disorderly and Disruptive Conduct in a Restricted Building or Grounds, in violation of 18 U.S.C. § 1752(a)(2).

The Superseding Indictment is under seal, pending the arrest of newly charged defendants and the execution of search warrants. Law Enforcement anticipates executing the arrests and search warrants of the new defendants in a coordinated operation on Wednesday, March 17, 2021. Once the arrests are executed, the Superseding Indictment will be unsealed.

The evidence the superseding indictment provides to substantiate claims first made on March 1 may explain an even bigger reason why prosecutors didn’t provide their evidence for those three claims in time to keep Nordean in custody: They had an unindicted co-conspirator (presumably someone cooperating with prosecutors) who was, along with the four conspiracy defendants, on an encrypted channel created after Enrique Tarrio’s arrest on January 4 that Proud Boy leaders used to continue planning for January 6. That unindicted co-conspirator was personally involved in all three details included in that detention memo against Nordean. He helped divvy up the Proud Boys to be spread out during the January 6 operation.

39. On after Chairman’s January 4, 2021, shortly after Proud Boys Chairman’s arrest pursuant to a warrant issued by D.C. Superior Court, DONOHOE expressed concern that encrypted communications that involved Proud Boys Chairman would be compromised when law enforcement examined Proud Boys Chairmans’ phone. DONOHOE then created a new channel on the encrypted messaging application, entitled, “New MOSD,” and took steps to destroy or “nuke” the earlier channel. After its creation, the “New MOSD” channel included NORDEAN, BIGGS, REHL, DONOHOE, and a handful of additional members.

40. On January 2021, at 7:15 p.m., DONOHOE posted a message on various encrypted messaging channels, including New MOSD, which read, “Hey have been instructed and listen to me real good! There is no planning of any sorts. I need to be put into whatever new thing is created. Everything is compromised and we can be looking at Gang charges.” DONOHOE then wrote, “Stop everything immediately” and then “This comes from the top.”

41. On January 4, 2021, at 8:20 p.m., an unindicted co-conspirator (“UCC-1”) posted to New MOSD channel: “We had originally planned on breaking the guys into teams. Let’s start divying them up and getting baofeng channels picked out.”

Note: If “New MOSD” was a channel of State leaders of the Proud Boys, it would likely have included Nicholas Ochs, who heads the Hawaii chapter of the Proud Boys. Ochs was the first senior Proud Boy to be arrested, on January 7, at the airport when he arrived back in Hawaii (and therefore carrying anything he had with him at the insurrection, potentially including his cell phone and any radios he kept). Kathryn Rakoczy, who has since moved onto the team prosecuting the Oath Keepers, was the original prosecutor on Ochs’ case. But now Christopher Berridge, who is on all the other Proud Boy cases but not the Nordean and Biggs one, is prosecuting Ochs. Ochs is charged in a parallel conspiracy indictment, with the very same goal and many of the same means as the Nordean and Biggs one, but which for some reason was not identified as a related case to the other three Proud Boy ones and so was not assigned to Judge Kelly; Judge Howell is presiding over Ochs’ case. Ochs has a superb defense attorney, Edward McMahon. Many of these details, which make the curious treatment of the Ochs-DeCarlo conspiracy indictment clear, are in this post or this expanded table.

Whoever the unindicted co-conspirator is, he’s the one who set the channel of the Baofeng radios the night before the insurrection. And he’s the one who stated that Nordean was in charge.

46. At 9:03 p.m., REHL notified NORDEAN, BIGGS, DONOHOE and others that he had arrived in Washington, D.C. DONOHOE responded by requesting one of the radios that REHL had brought.

47.  At 9:09 p.m., UCC-1 broadcast a message to MOSD and Boots on the Ground channels that read: “Stand by for the shared baofeng channel and shared zello channel, no Colors, be decentralized and use good judgement until further orders” UCC-1 also wrote, Rufio is in charge, cops are the primary threat, don’t get caught by them or BLM, don’t get drunk until off the street.” UCC-1 then provided a specific radio frequency of 477.985.

It is highly likely that prosecutors learned the three details included in that detention motion — that Nordean had been put in charge, that the Proud Boys were using Baofeng radios set to frequency 477.985, and that part of the plan was to disperse the men to increase chances of success — from the unindicted co-conspirator and or devices seized from him when he was first arrested.

And it took them less than two months to learn those details of the plot.

Update: The government has moved to detain both Nordean and Biggs now. Those motions cite from the Telegram chats the Proud Boys used to organize the day before the attack, including (I’ve combined them from both motions):

On January 5, between 9:30 – 9:32am [Biggs] stated “What are the teams. I keep hearing team [sic] are picked already.” A few minutes later, [Biggs] stated “Who are we going to be with. I have guys with me in other chats saying teams are being put together.”

On January 5, at 9:32am, a member of a Proud Boys Telegram group stated “It seems like our plan has totally broken down and rufio has taken control as a singke [sic] point of contact.”

On January 5, between 5:22 – 5:25pm, [Biggs] stated “Woth [sic] [coconspirator Ethan Nordean] trying to get numbers so we can make a plan.” Defendant then stated “Just trying to get our numbers. So we can plan accordingly for tonight and go over tomorrow’s plan.”

On January 5, at 5:52pm, [Biggs] stated “We are trying to avoid getting into any shit tonight. Tomorrow’s the day” and “I’m here with [co-conspirator Nordean] and a good group[.]”

On January 5, at 9:07pm, co-conspirator Charles Donohoe asked “Hey who’s boots on ground with a plan RN [ … ] Guys are asking.” A participant in the encrypted chat stated “Supposed to be Rufio.”

Within minutes, an unindicted co-conspirator broadcast a message to those in the group chat, “Rufio is in charge, cops are the primary threat, don’t get caught by them or BLM, don’t get drunk until off the street.”

On January 5, between 9:17 and 9:20pm, [Biggs] stated “We just had a meeting woth [sic] a lot of guys. Info should be coming out” and then “I was able to rally everyone here together who came where I said” and then, “We have a plan. I’m with [co-conspirator Nordean].”

On January 5, at 9:34pm [Biggs] told co-conspirator Charles Donohoe to communicate to Proud Boys members a message stating that the group in Washington, D.C. would meet at the Washington Monument at 10am on January 6.

On the morning of January 6, Donohoe stated that he was on his way to the Washington Monument, and “I have the keys until Rufio and [co-conspirator Zachary Rehl] show up.”

Update: As I note in a footnote to this post, Nicholas Ochs can’t be the unindicted co-conspirator. That’s true for two reasons. First, because DOJ does not believe UCC-1 was at the Capitol on January 6 (though doesn’t say where he was). DOJ knows Ochs was inside the Capitol. Also, DOJ has now started treating all the Proud Boy conspiracies as the same conspiracy. So Ochs could not, then, be considered un-indicted in that conspiracy.

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

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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

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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.