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DOJ Unimpressed by Mo Brooks’ Kickass Conspiracy Defense

Last night, DOJ refused to certify that Mo Brooks’ actions laid out in a lawsuit by Eric Swalwell were done in the course of his employment as a Congressman. To understand why, and why Brooks may have given DOJ an easy way to prosecute him in conjunction with January 6, you have to look at the sworn declaration Brooks submitted in support of a claim that his call on Trump rally attendees to “kick ass” was part of his duty as a Congressperson.

Broadly, the Swalwell lawsuit accuses Brooks of conspiring with Donald Trump, Donald Trump Jr, and Rudy Giuliani to violate his civil rights by trying to prevent him from performing his official duties. One of the descriptions of the conspiracy is:

169. As described more fully in this Complaint, the Defendants, by force, intimidation, or threat, agreed and conspired among themselves and with others to prevent members of Congress, including the Plaintiff, and Vice President Mike Pence from counting the Electoral College Votes and certifying President Biden and Vice President Harris as the winners of the 2020 presidential election.

It alleges Brooks committed a number of overt acts, which include a series of Tweets that mirror and in one case anticipate the public claims the other alleged co-conspirators made, as well as his speech at the January 6 Trump rally where he incited listeners to “kick ass” to save the Republic.

Mo Brooks addressed the large crowd at the January 6 rally. He said “America is at risk unlike it has been in decades, and perhaps centuries.” He told the crowd to start “kicking ass,” and he spoke with reverence, at a purportedly peaceful demonstration, of how “our ancestors sacrificed their blood, sweat, their tears, their fortunes, and sometimes their lives,” before shouting at the crowd “Are you willing to do the same?!” Brooks intended these words as a threat of violence or intimidation to block the certification vote from even occurring and/or to coerce members of Congress to disregard the results of the election.

In general, Brooks’ sworn declaration, submitted in support of a petition to certify that he was acting within the scope of his office as a Congressperson, claimed over and over that the actions he admits to (he claims all but one of the Tweets in question were sent by his staffers) were done,

pursuant to my duties and job as a United States Congressman concerning presidential election dispute resolution obligations imposed on Congress by the U.S. Constitution, Amendment 12 in particular, and the United States Code, 3 U.S.C. 15 in particular.

That includes, for example, when Brooks claims he,

drafted my January 6, 2021 Ellipse Speech in my office at the Rayburn House Office building on my Congressional Office computer. I also timed, reviewed and revised, and practiced my Ellipse Speech in my office at the Rayburn House Office Building.

Claiming such actions were part of his duties as a Congressperson is how Brooks responds to most of the allegations against him. One notable exception is when he claimed,

I only gave an Ellipse Speech because the White House asked me, in my capacity as a United States Congressman, to speak at the Ellipse Rally. But for the White House request, I would not have appeared at the Ellipse Rally.

The far more notable exception came when, presumably in an effort to disclaim intending to invite rally participants to “kick ass” on January 6, Brooks explains that the “kicking ass” was instead an effort to get Republicans to start focusing on the 2022 and 2024 elections.

Swalwell errs by splicing one sentence and omitting the preceding sentence in a two-sentence paragraph that emphasizes I am talking about “kicking ass” in the 2022 and 2024 ELECTIONSThe full paragraph states, in toto:

But lets be clear, regardless of today’s outcome, the 2022 and the 2024 elections are right around the corner, and America does not need and cannot stand, cannot tolerate any more weakling, cowering, wimpy Republican Congressmen and Senators who covet the power and the prestige the swamp has to offer, while groveling at the feet and the knees of the special interest group masters. As such, today is important in another way, today is the day American patriots start by taking down names and kicking ass.

My intent in uttering these words was to encourage Ellipse Rally attendees to put the 2020 elections behind them (and, in particular, the preceding day’s two GOP Senator losses in Georgia) and to start focusing on the 2022 and 2024 elections.

“As such” is the key phrase in the second sentence because it emphasizes that the paragraph’s second sentence is in the context of the paragraph’s first sentence’s 2022 and 2024 election cycles (that began November 4, 2020).

Consisted with this is the middle part of the paragraph’s second sentence, which states, “taking down names”. Whose names are to be “taken down”? The names of those Senators and Congressmen who do not vote for honest and accurate elections after the House and Senate floor debates later in that afternoon and evening. Once we get and “take down” their names, our task is to “kick their ass” in the 2022 and 2024 election cycles. [emphasis original]

This claim is inconsistent with many of the other claims that Brooks makes. And claiming that he means to replace Senators and Congresspeople who don’t vote against the legal outcome of the election only defers the threats against those who don’t participate in an election scam.

But the most important part, for the purposes of Brooks’ efforts to dodge this lawsuit, is that he has just confessed, in a sworn declaration, to have been campaigning when he delivered the speech that he wrote using official resources.

That’s one of the points that Zoe Lofgren made, in her role as Chair of the Committee on House Administration, when providing a response from Congress in lieu of one from the House General Counsel. After noting that Members of Congress cannot, as part of their official duties, commit a crime, she then notes that members are also prohibited from using official resources for campaign purposes.

Conduct that is campaign or political in nature is also outside the scope of official duties and not permissible official activity. For example, regulations of the Committee on House Administration provide that a Member may use their official funds only for “official and representational expenses,” and “may not pay for campaign expenses” or “campaign-related political party expenses with such funds.”5

Similarly, the Committee on Ethics notes that, “Official resources of the House must, as a general rule, be used for the performance of official business of the House, and hence those resources may not be used for campaign or political purposes.”6 For purposes of this rule, “official resources” includes not only official funds, but “goods and services purchased with those funds,” “House buildings, and House rooms and offices,” “congressional office equipment,” “office supplies,” and “congressional staff time.”7 The limitations on the authorized use of official time and space for campaign or political purposes extends to activities such as “the drafting of campaign speeches, statements, press releases, or literature.”8 Moreover, the scope of campaign or political activities that may not be conducted with official resources is not limited to the Member’s own reelection campaign. As the Committee on Ethics explains:

Members and staff should be aware that the general prohibition against campaign or political use of official resources applies not only to any Member campaign for re-election, but rather to any campaign or political undertaking. Thus the prohibition applies to, for example, campaigns for the presidency, the U.S. Senate, or a state or local office, and it applies to such campaigns whether the Member is a candidate or is merely seeking to support or assist (or oppose) a candidate in such a campaign.9

In his motion, Representative Brooks represents to the court that he intended his January 6, 2021, speech to incite action by the thousands of attendees with respect to election activity. Representative Brooks states that he sought “to encourage Ellipse Rally attendees to put the 2020 elections behind them (and, in particular, the preceding day’s two Georgia GOP Senate losses) and to inspire listeners to start focusing on the 2022 and 2024 elections, which had already begun.”10 For example, Representative Brooks affirms that in his speech, he said, “Today is a time of choosing, and tomorrow is a time for fighting.” 11 According to Representative Brooks, the first half of that statement, “Today is a time of choosing,” is not a “call for violence,” but is instead a reference to “[w]hich Senators and Congressmen to support, and oppose, in future elections.”12 Further, he explains that the second half of that statement, “tomorrow is a time for fighting,” is a reference to “fighting” “[t]hose who don’t vote like citizens prefer … in future elections, as is emphasized later in the speech.”13

Similarly, Representative Brooks also declares that in his speech, he said, that “the 2022 and 2024 elections are right around the corner” and that “As such, today is important in another way, today is the day American patriots start taking down names and kicking ass.” 14 As he said “the 2022 and 2024 elections are right around the corner,” Representative Brooks withdrew a red cap that stated “FIRE PELOSI” from his coat, donned the cap, and wore it for the remainder of his speech.15 Representative Brooks says that, “The phrase, ‘As such’ emphasizes that the second sentence is in the context of the first sentence’s ‘2022 and 2024 elections’ time frame … and the desire to beat offending Republicans in those elections!”16 He asks and answers his own question about the timing: “When do citizens kick those Republican asses? As stated in the first sentence, in the ‘2022 and 2024 elections that are right around the corner.’”17 He later affirms that, “My ‘kicking ass’ comment referred to what patriotic Republicans needed to do in the 2022 and 2024 elections and had zero to do with the Capitol riot.”18

For Lofgren’s purpose, the important part is that Brooks has sworn under oath that the specific language that seemed to invite violence was instead campaign activity outside the scope of his official duties.

Essentially, in deflecting the allegation that his speech was an incitement to violence, Representative Brooks has sworn under oath to the court that his conduct was instead in furtherance of political campaigns. As noted, standards of conduct that apply to Members and precedents of the House are clear that campaign activity is outside the scope of official duties and not a permissible use of official resources.

She doesn’t say it, but Brooks’ declaration, including his confession that he wrote the speech in his office, is also a sworn declaration that he violated campaign finance laws by using his office for campaign activities.

The DOJ response to Brooks’ request for certification cites Lofgren’s letter while adopting a similar approach to it, one that would extend beyond Brooks’ actions to Trump himself. The entire rally, they say, was a campaign rally, and therefore outside the scope of Brooks’ employment as a Congressperson — or the scope of employment of any elected official.

The record indicates that the January 6 rally was an electioneering or campaign activity that Brooks would ordinarily be presumed to have undertaken in an unofficial capacity. Activities specifically directed toward the success of a candidate for a partisan political office in a campaign context—electioneering or campaign activities—are not within the scope of the office or employment of a Member of the House of Representatives. Like other elected officials, Members run for reelection themselves and routinely campaign for other political candidates. But they do so in their private, rather than official, capacities.

This understanding that the scope of federal office excludes campaign activity is broadly reflected in numerous authorities. This Court, for example, emphasized “the basic principle that government funds should not be spent to help incumbents gain reelection” in holding that House or Senate mailings aimed at that purpose are “unofficial communication[s].” Common Cause v. Bolger, 574 F. Supp. 672, 683 (D.D.C. 1982) (upholding statute that provided franking privileges for official communications but not unofficial communications).

The current House Ethics Manual confirms that the official business of Members of the House does not include seeking election or reelection for themselves or others. House resources generally cannot be used for campaign purposes, and Members’ staff may engage in campaign work only “on their own time and outside the congressional office.” House Ethics Manual, Committee on Standards of Official Conduct, 110th Cong., 2d Sess., at 121 (2008). For instance, Representatives cannot conduct campaign activities from House buildings or offices or use official letterhead or insignia, and congressional staff on official time should terminate interviews that focus on campaign issues. See id. at 127–29, 133. Of direct relevance here, a Member of Congress also cannot use official resources to engage in presidential campaigns: “[T]he general prohibition against campaign or political use of official resources applies not only to any Member campaign for re-election, but rather to any campaign or political undertaking,” and this “prohibition applies to, for example, campaigns for the Presidency.” Id. at 124; see Lofgren Letter 2.

First, the record indicates that Brooks’s conduct was undertaken as part of a campaign-type rally, and campaign activity is not “of the kind he is employed to perform,” or “within the authorized time and space limits” for a Member of Congress. Restatement §§ 228(1)(a), (b). Second, the Complaint alleges that Brooks engaged in a conspiracy and incited the attack on the Capitol on January 6. That alleged conduct plainly would not qualify as within the scope of employment for an officer or employee of the United States, because attacking one’s employer is different in kind from any authorized conduct and not “actuated . . . by a purpose to serve” the employer. Id. § 228(1)(c). Brooks does not argue otherwise. Instead, he denies the Complaint’s allegations of conspiracy and incitement. The Department does not address that issue here because the campaign-related nature of the rally independently warrants denial of certification, and because the Department is engaged in ongoing investigations into the events of January 6 more generally. But if the Court were to reject our argument that the campaign nature of the January 6 rally resolves the certification question, the Court should not certify that Brooks was acting within the scope of his office or employment unless it concludes that Brooks did not engage in the sort of conduct alleged in the Complaint. [my emphasis]

Brooks might object to DOJ’s determination that the entire rally was a campaign event; he claims the other parts of his speech were part of his duty as a Congressperson. But if pressed on that point, the inconsistencies within his own sworn declaration would either support the view that Trump’s actions also weren’t part of his official duties, or that he himself meant the “kick ass” comment to refer to events of the day and therefore did incite violence. That is, the inconsistencies in Brooks’ sworn declaration may corner him into statements that go against Trump’s interests as well.

Importantly, DOJ’s filing treats the question of whether Brooks committed a crime as a separate issue entirely, asking Judge Amit Mehta not to rule in Brooks’ favor without first analyzing Brooks’ conduct to determine if the conduct alleged in the complaint — which happens to be but which DOJ doesn’t spell out — is a conspiracy to obstruct the vote count, the same charge used against three different militias charged in January 6.

Once again, DOJ emphasizes that this language applies to any Federal employee.

Instead, he denies the Complaint’s allegations of conspiracy and incitement. The Department does not address that issue here because the campaign-related nature of the rally independently warrants denial of certification, and because the Department is engaged in ongoing investigations into the events of January 6 more generally. But if the Court were to reject our argument that the campaign nature of the January 6 rally resolves the certification question, the Court should not certify that Brooks was acting within the scope of his office or employment unless it concludes that Brooks did not engage in the sort of conduct alleged in the Complaint.

[snip]

Here, the Complaint alleges that Brooks conspired with the other Defendants and the “rioters who breached the Capitol on January 6” to prevent Congress from certifying the Electoral College votes. Compl. ¶ 12. To serve that end, the Complaint alleges that, among other things, the Defendants conspired amongst themselves and with others to “injure members of Congress . . . and Vice President Pence” in an effort to disrupt the peaceful transfer of power. Compl. ¶¶ 1, 12, 171, 179. Such a conspiracy would clearly be outside the scope of the office of a Member of Congress: Inciting or conspiring to foment a violent attack on the United States Congress is not within the scope of employment of a Representative—or any federal employee— and thus is not the sort of conduct for which the United States is properly substituted as a defendant under the Westfall Act.

Brooks does not argue otherwise. Instead, he denies the Complaint’s allegations that he conspired to incite the attack on the Capitol. See Brooks Aff. 17–18.5 The Department of Justice does not address that issue here. The campaign or electioneering nature of Brooks’s participation in the January 6 rally independently warrants denial of certification, and the Department is engaged in ongoing investigations into the events of January 6 more broadly.6 But if the Court were to reject our argument that the campaign nature of the January 6 rally resolves the certification question, the Court should not certify that Brooks was acting within the scope of his employment unless it concludes that Brooks did not engage in the sort of conduct alleged in the Complaint. Cf. Osborn v. Haley, 549 U.S. 225, 252 (2007) (recognizing that scope-of-employment questions may overlap substantially with the merits of a tort claim).

6 As this Court is aware, the U.S. Attorney’s Office for the District of Columbia and the Federal Bureau of Investigation have for several months continued their investigation and prosecution of those responsible for the attack. This investigation is ongoing. More than 535 defendants have been arrested across the country and at least 165 defendants have been charged on counts ranging from destruction of government property to conspiracy to obstruct a congressional proceeding. See Department of Justice Statement, https://www.justice.gov/usao-dc/six-monthsjanuary-6th-attack-capitol. [my emphasis]

Someone could write a book on how many important cases Judge Mehta has presided over in recent years. But he’s got a slew of January 6 defendants, including all the Oath Keeper conspirators. And so Mehta is not just aware that DOJ is conducting an ongoing investigation, he has also presided over four guilty pleas for conspiring to obstruct the vote count, close to (but charged under a different law) as the claim Swalwell made in his complaint.

So Mehta has already accepted that it is a crime to obstruct the vote count, four different times, with Jon Schaffer, Graydon Young, Mark Grods, and Caleb Berry. He’d have a hard time ruling that, if Swalwell’s allegations are true (as noted, Brooks contends that some of them are not, and they certainly don’t yet present enough proof to support a criminal prosecution), Brooks would be exempt from the same criminal conspiracy charges that the Oath Keepers are pleading guilty to.

DOJ’s declaration is not (just) an attempt to create space — by distinguishing campaign activities from official duties — between this and DOJ’s decision to substitute for Trump in the E. Jean Carroll lawsuit. It is an effort to preserve the principle that not just Congresspeople, but all Federal employees, may be charged and convicted of a conspiracy to obstruct the vote count, particularly for actions taken as part of campaign activities.

The Grand Jury Secrets Hiding the Proud Boys’ East Door Activities

By my very quick review, there have just been a handful of January 6 defendants charged individually via indictment, without first being charged by complaint.

Lewis Cantwell was arrested in February for civil disorder and obstruction, but whose actions on January 6 are not laid out in any public court documents.

Richard Harris was arrested via indictment in March for resisting arrest and obstruction. A motion supporting detention revealed that Harris persuaded cops to back down at one of the entrances and picked up a phone and purported to threaten Nancy Pelosi; he had assaulted a journalist at a protest in December in Oregon and — though this is contested — lived out of his car after that time.

Daniel Rodriguez was arrested via indictment in March for tasing Michael Fanone, among other things. A HuffPo article, which in turn relied on the work of various volunteer Sedition Hunters, had already provided ample introduction on Rodriguez.

The Klein brothers — Matthew and Jonathanpeter — probably count as one unit. They were charged via conspiracy indictment in March. Their drawn out detention fight showed one or both have ties to the Proud Boys, they followed Dominic Pezzola in the Senate side door, and then later successfully breached the North Door.

Other than that, people have been initially charged via indictment in group or conspiracy indictments: Verden Nalley got indicted along with William Calhoun a month after Calhoun was first charged. Albuquerque Cosper Head and Kyle Young were indicted for assault along with Thomas Sibick, who had already been charged. Taylor Johnatakis and Isaac Sturgeon were indicted on assault charges with Craig Bingert, who had already been charged. A now sprawling assault indictment including Jack Whitton, Clayton Mullins, and Michael Lopatic started with complaints against Jeffrey Sabol and Peter Stager. Another sprawling assault indictment including Tristan Stevens, David Judd, Christopher Quaglin, Robert Morss, and Geoffrey Sills built off a Patrick McCaughey complaint.

When some of the militia members got added to one or another indictment — Matthew Greene to one of the Proud Boys indictment, and several Oath Keepers to that omnibus indictment — they were indicted without a complaint first.

Which is to say, in this investigation, it has been very rare for an individual to be initially charged via indictment.

That’s why it’s notable that the government arrested Ricky Willden yesterday, a Proud Boy from Northern California, on assault and civil disorder charges via an indictment obtained a week earlier. The government issued a press release that describes that Willden was on the East side cheering as a bunch of Marines and one co-traveller opened the door, then sprayed some stuff at cops guarding the door.

The Proud Boys is a group self-described as a “pro-Western fraternal organization for men who refuse to apologize for creating the modern world; aka Western Chauvinists.” In publicly available videos recorded on Jan. 6, Willden can be seen in a crowd near the east door of the Capitol at 2:24 p.m. (according to time stamps in one of the videos) wearing a dark jacket, beanie cap and gloves, and cheering as the doors to the Capitol opened. At 2:35 p.m., he can be seen raising his hand and spraying an unknown substance from a green can toward police officers who were standing guard at the east door.

But because the government arrested Willden via indictment, they don’t have to release a public explanation of their probable cause to arrest him. Indeed, the press release pointedly cites “publicly available videos” to back the only allegation it makes.

One reason to charge someone on indictment rather than complaint is to hide the identity of witnesses who have testified. I find that particularly interesting, in part, because there were several people who posed in Joe Biggs’ picture on the East side, but thus far, just Paul Rae and Arthur Jackman have been identified from the picture (though Biggs surely knows who the others are). While the government has ostentatiously rolled out one after another Oath Keeper cooperator — first Jon Schaffer, then Graydon Young, and yesterday Mark Grods — aside from an unindicted co-conspirator identified in some of the Proud Boy indictments (UCC-1), whose identity those charged also know, the government has hidden the cooperators it has surely recruited from the notoriously back-stabbing group.  The hybrid approach the government has used — charging five overlapping conspiracies but also charging a bunch of Proud Boys who worked in concert with others individually — has (surely by design) made it harder for both participants and observers to understand what the government has in hand. There have been a few inconclusive hints that one or another person has flipped (or that Judge Tim Kelly, who has presided over most of the Proud Boys cases, had a sealed hearing that might reflect a plea deal), but nothing concrete.

For weeks it has been clear that unpacking how it happened that two militias and a bunch of Marines converged on the East Door as if all had advance warning would be one key to demonstrating the larger conspiracy behind the January 6 insurrection.

But just as DOJ has rolled out a new player in those events, they’ve moved everything to a grand jury to hide its secrets.

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

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

DOJ’s reticent Statements of Offense

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

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

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

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

Hodgkins knew at the time he entered the U.S. Capitol Building that that he did not have permission to enter the building, and the defendant did so with the intent to corruptly obstruct, influence, and impede an official proceeding, that is, a proceeding before Congress, specifically, Congress’s certification of the Electoral College vote as set out in the Twelfth Amendment of the Constitution of the United States and 3 U.S.C. §§ 15-18.

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

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

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

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

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

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

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

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

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

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

How Graydon Young ended up pleading out of terrorism exposure

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

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

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

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

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

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

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

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

Total 29

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

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

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

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

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

16. At the time Mr. Young forcibly entered the building, Mr. Young believed that he and the co-conspirators were trying to obstruct, influence, and impede an official proceeding, that is, a proceeding before Congress, specifically, Congress’s certification of the Electoral College vote as set out in the Twelfth Amendment of the Constitution of the United States and the statutes listed in sections 15 through 18 of title 3 of the U.S. Code.

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

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

¶8 of the SOO describes making plans.

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

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

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

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

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

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

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

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

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

¶19 describes Young exiting the Capitol.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The January 6 Plea Deals: Cooperation, Felony, and Misdemeanor Plea Deals

Later today, Graydon Young, one of the people charged in the Oath Keeper conspiracy, will plead guilty. We won’t know until then whether his plea includes a cooperation agreement or not. He only joined the Oath Keepers in December 2020, but because he was in Florida, he may know about some key events leading up to January 6, including this book event with Roger Stone and Kelly Meggs’ wife, Connie.

Days after the event, Kelly Meggs described having set up an organized alliance between Florida militias.

Also this afternoon, Anna Morgan-Lloyd will be the first January 6 defendant to be sentenced; the government has recommended she get a three year probation sentence.

In anticipation of what will soon turn into a flood of pleas, I wanted to lay out what we’ve seen so far.

Update: Judge Lamberth did give Anna Morgan-Lloyd probation, but gave her 3 times the community service — 120 hours rather than 40 — as the government requested. Update: it was docketed as 40 hours. So I guess she got exactly what prosecutors asked for.

Cooperation Agreement

Jon Schaffer: Schaffer is the only cooperation agreement we know about, but that may be because of a docket fail. There are certainly other people I suspect are cooperating, and there are sealed filings that could suggest cooperators. He pled to obstruction and entering the building with a deadly weapon. His guidelines sentence is 41-51 months.

Plea (includes 5K1), but no assigned restitution amount

Graydon Young: Young also entered into a cooperation agreement. He is pleading to conspiracy and obstruction, and faces a guideline sentence of 63-78 months.

Plea (includes 5K1) and restitution

Felony Plea

In spite of Paul Hodgkins’ notable use of latex gloves (which he put on in an attempt to offer Joshua Black First Aid), his was a straight plea. As a felony plea, his includes sentencing guidelines for pleading to obstruction, 18 U.S.C. §1512 (which for Hodgkins was 15 to 21 months) and $2,000 restitution.

Paul Hodgkins (my post on his plea)

Misdemeanor Plea

The misdemeanor pleas we’ve seen so far require the defendant to plead to one of what is often four trespass charges. The pleas include $500 restitution and, for most (but not Reeder), a “cooperation with additional investigation” paragraph requiring an interview and a review of social media with law enforcement.

Jessica Bustle

Joshua Bustle

Bryan Ivey

Anna Morgan-Lloyd (my post on her effort to express remorse)

Robert Reeder

 

Tucker Carlson and Glenn Greenwald Are Outraged that Bill Barr Set Up Antifa!!!! [Just Kidding]

You’ve no doubt seen the conspiracy theory championed by Tucker Carlson and Glenn Greenwald claiming that the unnamed Oath Keeper associates described in those indictments are actually FBI informants.


As happened with earlier propaganda campaigns (notably the one downplaying Brian Sicknick’s death), the conspiracy theory started with Revolver News, got magnified by Tucker Carlson, and got normalized by Glenn Greenwald (the latter of whose central role largely escaped attention because commentators don’t identify him, yet, as a right wing propagandist).In his first appearance, Carlson grotesquely accused Sharon Caldwell, who was described in later Oath Keeper documents as Person Two but was identified clearly in earlier documents by her first name and as Thomas Caldwell’s spouse, of being an informant who framed her husband.

Person Two and Person Three were organizers of the riot. The government knows who they are. But the government has not charged them. Why is that? You know why. They were almost certainly working for the FBI. So FBI operatives were organizing the attack on the Capitol on January 6, according to government documents. And those two are not alone! In all Revolver News reported there were, quote, “upwards of 20 unindicted co-conspirators in the Oath Keepers indictments, all playing various roles in the conspiracy, who have not been charged for virtually the exact same activities — and in some cases much, much more severe activities — as those named alongside them in indictments.”

Huh????

So it turns out that this white supremacist insurrection was, again, by the government’s own admission in these documents organized at least in part, by government agents.

This little campaign has led compromised members of Congress to embrace this excuse for the insurrection they previously have claimed was not an insurrection at all.


Thomas Caldwell’s wife, Sharon, is Person Two

To show that “Person Two,” whom Tucker Carlson alleges for framing Thomas Caldwell, is actually his wife, Sharon, you can compare this filing, where her name is not redacted, with this one, where “Person Two” has substituted for her name.

1. Sharon Caldwell is Thomas’ wife:

2. “Sharon and I are setting up shop there” (at the Comfort Inn Ballston) and then “Sharon and I are going our way.”

3. “Sharon was right with me!”

Later filings over release conditions confirm the selfies posted to Facebook were of Thomas’ wife, describe Thomas agreeing to be accompanied by his wife, Sharon, to Sunday Mass starting on Easter, expressing concern that his wife has to do all the chores on their 30-acre farm which has led to the loss of farm income, and describing that he rarely travels anywhere without his wife, Sharon Caldwell, and she’s willing to go with him every time he does leave their property.


Glenn and Tucker must be outraged that Billy Barr set up Antifa

Parts of this campaign are pathetic, even for the men involved, and may reflect a desperate attempt to repackage their own past claims.

For example, after parroting a bunch of obviously self-serving PR from Parler in the days after the attack (such as that the insurrectionists organized on Facebook, not Parler), Glenn now shows that Parler was actually sharing threats of violence with the FBI in advance, without noting that that undermines several things he said in the past, such as that the insurrectionists didn’t plan on Parler. This must be dizzying and embarrassing for Glenn.

And because Glenn has to package this — like he did his never-ending obsession with Hunter Biden’s laptop — as a failure of Democrats and liberal media, he remarkably claims that the left — which has so relentlessly asked why the FBI was caught unawares that Glenn even screen caps an example of Ryan Goodman linking to Carolyn Maloney doing so — is resistant to questioning the FBI’s role in the riot.

What accounts for this furious liberal #Resistance to questioning the FBI’s role in the January 6 riot and asking whether there are vital facts that are being concealed?

Maybe Glenn has a harder time getting CSPAN in Brazil than I do in Ireland, because when I’ve watched the multiple hearings Democratic Chairs of various committees (including Maloney) have had with FBI Director Chris Wray or now-National Security Branch EAD Jill Sanborn, they question the FBI about it over and over and over. Glenn literally made up this hash-tagged resistance out of thin air because he needs it to be true, when in fact the opposite is true.

But it’s important to look at what this propaganda campaign obscures.

Probably, this campaign got started because a number of people implicated in the investigation, now realizing that it won’t go away, are trying to absolve themselves of any responsibility. It has already happened with those charged for crimes committed on January 6. Dominic Pezzola suggested that a key witness against him was actually more involved in the riot than he was, only to learn he guessed wrong and that the government was going to invoke a terrorism enhancement with him. Similarly, top Proud Boys were hinting at challenges to the UCC-1 described in their indictment, before they grew conspicuously silent about it, as if they learned something that undercut such claims. [see update below]

The other reason people are talking about informants is that (FBI’s failure to respond notwithstanding) it’s not that far-fetched. Importantly, multiple Proud Boys have claimed to be informants, though Glenn only mentions Enrique Tarrio. Maybe that’s because the implication of the claims from the others leads to a place Glenn and Tucker don’t want to go. Of the four Proud Boys that Aram Rostom described as being FBI informants prior to January 6, three claimed to be sharing information about Antifa.

Reuters interviewed two Proud Boys members who spoke on the condition of anonymity about some members’ interactions with the FBI. Reuters also interviewed Proud Boys leader Enrique Tarrio, examined court records and interviewed sources close to the federal investigation.

The reporting showed:

– One Proud Boy left the group in December after telling other members he was cooperating with the FBI by providing information about Antifa, say Tarrio and two other Proud Boy sources. The former member, whom Reuters was unable to identify, insisted to group leaders that he had not revealed information about the Proud Boys, these people say.

– A second Proud Boy leader bragged in 2019 about sharing information with the FBI about Antifa, according to private chats leaked on social media. The chats’ authenticity was confirmed by a source familiar with the Proud Boys and the Jan. 6 case.

– A third Proud Boy leader, Joseph Biggs, who was indicted and charged with conspiracy in the January attack, has said in court papers he reported information to the FBI about Antifa for months. Reuters spoke to Biggs two days before the riot. In that interview, he said he had specific plans for Jan. 6, but declined to disclose them. But, he volunteered to Reuters in that call, he was willing to tell his FBI contact of his plans for the coming rally, if asked. Reuters wasn’t able to determine whether such a contact took place. [my emphasis]

What this suggests is not that the FBI set up the Proud Boys with paid informants, but the opposite: that under a President who “denounced” the Proud Boys by saying they should “Stand back and stand by,” and under an Attorney General who dismissed threats against a judge involving the Proud Boys as a technicality, the Proud Boys were viewed not as an equivalent (or greater) threat than Antifa, but instead were able to disguise their use of Antifa as a foil to sow violence by serving as informants against them.

If these three self-proclaimed informants are right (there’s good reason to doubt them), then it means under Bill Barr, the FBI was using informants not to set up the Proud Boys, but instead to set up Antifa.

If Tucker and Glenn were good faith actors and not paid propagandists, you would fully expect them to be outraged that the FBI set up Antifa.

Especially because of the possibility that the FBI didn’t take the Proud Boys threat seriously because (on top of being endorsed by the President and downplayed by the Attorney General), they prioritized investigating Antifa over investigating the Proud Boys. With that possibility in mind, read the framing of Glenn’s Substack post:

The original report, published by Revolver News and then amplified by Fox News’ Tucker Carlson, documented ample evidence of FBI infiltration of the three key groups at the center of the 1/6 investigation — the Oath Keepers, the Proud Boys, and the Three Percenters — and noted how many alleged riot leaders from these groups have not yet been indicted. While low-level protesters have been aggressively charged with major felonies and held without bail, many of the alleged plot leaders have thus far been shielded from charges.

The implications of these facts are obvious. It seems extremely likely that the FBI had numerous ways to know of any organized plots regarding the January 6 riot (just as the U.S. intelligence community, by its own admission, had ample advanced clues of the 9/11 attack but, according to their excuse, tragically failed to “connect the dots”).

[snip]

What would be shocking and strange is not if the FBI had embedded informants and other infiltrators in the groups planning the January 6 Capitol riot. What would be shocking and strange — bizarre and inexplicable — is if the FBI did not have those groups under tight control.

It is fucking insane that Glenn claims to be mystified by the possibility that a group endorsed in the President’s first Presidential debate and dismissed by the Attorney General would not get the proper scrutiny by the FBI. Trump very effectively punished people — especially at the FBI — for investigating entities close to him. And on September 29, 2020, Donald Trump made it quite clear the Proud Boys should get special treatment. That’s all the explanation you need. Though it is, indeed, reason for closer scrutiny, the kind of scrutiny that Democrats have been demanding, Glenn’s false claims to the contrary notwithstanding.

But if you want to raise the possibility that FBI had informants in the group, then the explanation may be equally as damning: That the FBI didn’t see January 6 coming because it was too busy treating Antifa as a terrorist threat.

Indeed, everything we know about the threat reporting on that day — which claimed the big risk of violence arose from the possibility of clashes between counter-protestors and right wing militias — suggests that may be what happened: that the FBI was looking the other way, possibly in conjunction with the militia that played a key role in planning the attack. That certainly accords with Acting Secretary of Defense Christopher Miller’s claim that Trump told him to use the National Guard to protect Trump supporters.

Since Glenn claims to be very familiar with the role of informants, surely he knows that multiple terrorists — definitely David Headley and allegedly Tamerlan Tsarnaev and Omar Mateen — have planned attacks under the cover of serving as informants (or in the case of Mateen, his father doing so). There were also at least two former FBI informants that played key parts in the Russian operation in 2016. The most logical answer to the questions that Glenn pretends to entertain is that the FBI didn’t look too closely at what Joe Biggs was planning (as part of a Kelly Meggs-brokered Florida alliance of militia groups with ties to Roger Stone), because they treated him as a credible source of reporting on Antifa.

The propaganda that goes unnoticed

The absurdity of accusing Sharon Caldwell of entrapping her spouse has, justifiably, gotten all the attention from this campaign.

But there’s a piece of propaganda that it incorporates — one parroted by Members of Congress — that deserves focus of its own: in framing his piece, Glenn not only claims that the plot leaders have been shielded from charges, he also states as fact that, “low-level protesters have been aggressively charged with major felonies and held without bail.”

While low-level protesters have been aggressively charged with major felonies and held without bail, many of the alleged plot leaders have thus far been shielded from charges.

In making this claim, Glenn is mindlessly parroting something that appears in the original Revolver piece.

The first category is the group of mostly harmless tourists who walked through already opened doors and already-removed barricades, and at most were guilty of minor trespassing charges and light property offenses. The second group consists of those who were violent with police officers, broke down barricades, smashed windows, belonged to a “militia” group engaged in military-style planning prior to the event, discussed transporting heavy weaponry, and so forth.

Up until now, the overwhelming (perhaps exclusive) share of counter-establishment reporting on 1/6 has focused on absolving the first group. And this is a valuable thing. The notion that these harmless “MAGA moms” wandering around the Capitol were domestic terrorists engaged in an insurrection is absurd. That many of these people are being held in prison, without bail, under harsh conditions, amounts to an unacceptable and outrageous abuse of basic human rights.

The only way to sustain a claim that “low-level protestors” have been charged with major felonies and held without bail is to claim that alleged plot leaders — people like Ethan Nordean, Joe Biggs, Billy Chrestman, and Kelly Meggs — were actually just protestors.

That’s because with perhaps two exceptions (people like Karl Dresch whose criminal records were cited as the reason for their detention), the only people who remain in jail are either those charged with planning the insurrection, or people who engaged in violence or came armed. And even many of those people were released. Just going in alphabetical order, Christopher Alberts brought a gun and a magazine to the insurrection but was released on bail. John Anderson is accused of assault but is out on bail. Richard Barnett, who entered Nancy Pelosi’s office with a high voltage stun gun, was initially jailed but has since been released. Bradley Bennett, whom the government argued went on the lam for weeks and destroyed his phone, got released on bail. Craig Bingert, involved in one of the conflicts with cops at a barricade, was released on bail. Gina Bisignano, accused of inciting violence and destruction with a bullhorn, was released on bail. Joshua Black, who was involved in confrontations with cops before heading to the Senate Chamber and said God ordered him to riot, was released on bail. James Breheny, an Oath Keeper who allegedly lied to the FBI and attended a key inter-militia planning event, is out on bail. Both men who brought zip ties to the Senate Chamber on the day of the riot, Eric Munchel and Larry Brock, are out on bail (and Brock isn’t even charged with a felony).

Even Brandon Fellows, charged with obstruction and present when Jeff Merkley’s office was trashed and laptop stolen, thus far remains out on bail, even after several bail violations.

Perhaps the only two people who remain in custody who weren’t either associated with a group being treated as a militia or involved in assault are Doug Jensen and Jacob Chansley. Both, though, played a kind of leadership role during the attack, both brought blades with them to the insurrection, both had direct confrontations with cops, and the government has argued (Jensen, Chansley) both exhibit the kind of fervor in their QAnon beliefs that pose a particular danger.

Given that QAnon had better success placing bodies where they were useful during the insurrection, I’m not sure it even makes sense to treat them differently than the more traditional militia.

Other than that, the men detained pre-trial are accused of leading the insurrection, precisely the people that this conspiracy theory falsely claims have been shielded from charges. Among the Proud Boys, Ethan Nordean, Joe Biggs, Charles Donohoe, Zack Rehl, and Kansas City cell leader Billy Chrestman remain jailed. Among the Oath Keepers, Kelly Meggs, Kenneth Harrelson, and Jessica Watkins remain jailed. All are accused of playing key leadership roles in the insurrection.

There were some questionable detention decisions early on. At this stage, however, there are no cases where people still detained are simply protestors on the wrong side of the law.

And yet even Glenn makes that false claim without any evidence.

Donald Trump’s FBI Director and Bill Barr’s hand-picked US Attorney called these defendants terrorists

There’s one more aspect of this conspiracy that is confounding.

Tucker Carlson and Glenn Greenwald suggest this is a Deep State plot to harm Trump and his supporters. Even Andrew McCarthy, who wrote a long and worthwhile piece debunking Tucker and Glenn’s conspiracies, nevertheless claims the prosecutorial decisions in this case reflect Democratic politicization.

Although Schaffer is plainly a member of the Oath Keepers conspiracy, the Biden Justice Department did not have him plead guilty to the conspiracy charge in the Oath Keepers indictment. That’s undoubtedly because, for the purposes of helping Democrats hype a white-supremacist terrorism narrative, the conspiracy charge is too minor. Although that charge has been portrayed by the media and the Justice Department as if it were a terrorism allegation, it actually involves a statute that criminalizes comparatively minor conspiracy offenses, fit for a maximum penalty of just five years’ imprisonment (with the possibility of no jail time at all).

So instead, DOJ had Schaffer plead guilty to a two-count criminal information, charging him with the substantive crimes of obstructing Congress and illegally carrying a dangerous weapon (bear spray) on restricted federal grounds. That allowed government officials to bray that Schaffer could be looking at 30 years in prison, which sure sounds a lot worse than five years. But it’s a feint. The 30-year level is just an aggregation of the maximum sentences prescribed by the two statutes in Schaffer’s guilty plea — i.e., the highest possible sentence that could potentially apply to anyone who violated these laws. The sentence a judge actually imposes within that 30-year range depends on the circumstances, with only the worst offenders getting the maximum sentence. Realistically, then, what matters in Schaffer’s case are the federal sentencing guidelines that apply specifically to him. In the plea agreement’s fine print, prosecutors concede that the guidelines call for a relatively paltry 41- to 51-month term, which may be reduced if his cooperation proves to be valuable.

I suspect that Schaffer is one of the unnamed, numbered “Persons” referred to in the Oath Keepers indictment.

[snip]

To be clear, Carlson is right that it is ridiculous for Attorney General Merrick Garland to portray the Capitol riot as if it were a terrorist attack and the people behind it as the most dangerous national-security threat we face. As noted above, the conspiracy allegation is not a terrorism charge: It carries a penalty of no more than five years. Carlson is right to point out that, despite the government’s and the media’s claims to the contrary, there is no indication that racism motivated the riot (the Oath Keepers, for example, are not a white-supremacist organization, and the indictment does not even hint that race had anything to do with January 6). Carlson is right that, even as congressional Democrats posture about the supposed need for a commission to fully expose the events of January 6, the government is withholding mounds of information — including the identity of the security official who killed rioter Ashli Babbitt, a concealment that would be unfathomable in a case where a police officer killed an African-American criminal suspect or a Black Lives Matter rioter. And Carlson was right to call out the ludicrous suggestion by Frank Figliuzzi, a former top FBI national-security official, that congressional Republicans who cynically supported Trump’s scheme to overturn the election result are the equivalent of a terrorist organization’s “command and control element.”

Christopher Wray — the FBI Director chosen by Donald Trump — has, from day one, called this a terrorist attack.

More importantly, the person leading this investigation for the first two months was the US Attorney Bill Barr installed with no input from Congress, Michael Sherwin. If Sherwin had his way, these people would be charged with seditious conspiracy. Under Sherwin, Proud Boy Dominic Pezzola’s crimes were labeled terrorism. Under Michael Sherwin, Jessica Watkins’ crimes were labeled terrorism. And while the Jon Schaffer cooperation agreement that McCarthy disdains was finalized after Sherwin left, signs of it were already evident before Sherwin left (note, McCarthy is probably wrong in his belief that Schaffer is one of the people identified thus far in the Oath Keepers conspiracy, and he misunderstands why prosecutors charged Schaffer like the did). A Sherwin-friendly article written after his departure quotes him stating these were not close cases (and also taking credit for making the bulk of the cases).

“These were not complicated cases,” Sherwin said of the Capitol breach probe. “What made these cases so unusual were the scope and scale of the crime,” reaching into almost every state in the country, including Florida.

Sherwin’s tour of duty as acting U.S. Attorney ended soon after the Biden administration took over the Justice Department. He was asked to stay on as the lead prosecutor in the Capitol breach probe, but Sherwin said it was time to move on after making the bulk of the cases in the investigation.

If you have a problem with the way this investigation unfolded, you have a problem not with Joe Biden’s DOJ, but instead with the guy Bill Barr installed into a politicized US Attorney role with no input from Congress.

Which may be why those who need to downplay the seriousness of the attack have instead resorted to baseless conspiracy theories.

Update: Because some dead-enders still don’t believe that Tucker Carlson has accused Sharon Caldwell of entrapping her husband Thomas, I’ve done an entire section showing how the same references to Person Two in a later filing show up as Thomas’ wife Sharon in an earlier one. I also describe all the efforts Sharon is making to keep her husband out of jail.

Update, July 25: Above, I noted that the Proud Boy leaders seem to have learned something that sated their curiosity about whether UCC-1 was an FBI informant. Indeed they did. At a recent hearing, one of the AUSAs on the case revealed that they had been provided this person’s identity and confirmation he was not an informant.

Several more relevant updates: First, Larry Brock has since been charged with obstruction, a felony, but remains out on bail. Doug Jensen, one of the last remaining people who wasn’t either a leader or charged with assault still being detained, was released on bail. Michael Curzio, one of just a few exceptions who got jailed because of past crimes, got released after serving a six month time served sentence for his misdemeanor trespass charge. Two non-violent defendants — Brandon Fellows and Thomas Robertson — have since had pretrial released revoked for violating their conditions.

Finally, the friend of former DEA officer Mark Ibrahim — who may himself serve as an FBI informant — not only debunked Ibrahim’s excuse for being at the insurrection, but made it clear that the FBI did not formally ask him to attend the event.

IBRAHIM said he went along with his friend, who had been asked by the FBI to document the event, and that he went along with his friend to assist with that effort.

Your affiant also interviewed IBRAHIM’s friend. According to the friend, IBRAHIM crafted this story about how his friend was at the Capitol to assist the FBI and that IBRAHIM was there helping him. IBRAHIM’s friend told your affiant that he was not there in any formal capacity for the FBI and that the FBI was not giving him directions or marching orders. He said that IBRAHIM crafted this story in an effort to “cover his ass.” According to IBRAHIM’s friend, IBRAHIM went to the rally in order to promote himself—IBRAHIM had been thinking about his next move after leaving the DEA and wanted the protests to be his stage for launching a “Liberty Tavern” political podcast and cigar brand.

Ibrahim, who brought another of the guns that Glenn claims no one brought to January 6 and displayed it publicly, is out on bail.

On January 6, Look to the Continuances

Riley June Williams — the woman with ties to the far right who was shown on video directing people around the Capitol and is accused of abetting the theft of Nancy Pelosi’s laptop — has not yet been indicted. Normally, the Speedy Trial Act gives prosecutors a limit of time — roughly 30 days — to formally charge you after you’re arrested. But with Williams, the government has been using a series of motions to extend this timeline. They currently have until July 21 to indict Williams.

That, by itself, isn’t all that unusual. But amid an ongoing conversation about whether the January 6 investigation will hold the most powerful accountable for the insurrection, I want to point to the existing long unindicted defendants to suggest, again, we don’t really know where this investigation is going.

Tracking which January 6 defendants haven’t been indicted is one way to identify cases that might be more interesting than others. Jon Schaffer’s case got continued for months leading up to his entry into a cooperation agreement on April 16. And Christopher Kelly’s case got continued for months before the government moved to dismiss it on June 1. At least some of these weren’t the boilerplate unopposed motions for a continuance, citing the unprecedented challenge of assembling all the evidence in this case, that have been used in most defendants cases; they were more specific requests for more time to conduct the investigation. As the disparate fate of these two men suggests, you can’t really tell what is interesting about a case if the formal charging is delayed.

But such non-boilerplate continuances are one thing I track (and I know other journalists do too) for potentially interesting cases. They happen in formally charged cases, too (for example, QAnoner Doug Jensen’s case got continued until tomorrow in such a fashion after prosecutors enhanced his own legal exposure). But it is easier to track the especially interesting delays in cases, like Williams’, where the defendant hasn’t been indicted yet.

To be sure, such continuances don’t guarantee a case will be interesting. A number of these cases end up in delayed felony charges (though that’s true of the boilerplate continuances as well). Sometimes these delays are attributable to delays in attorneys getting approved to represent defendants in the DC District. In several cases, such continuances were used when either the defendant or their lawyer got COVID. Sometimes, it even seems like the system has lost defendants (with just a handful of exceptions, thankfully not those being detained). There are a couple of defense attorneys and a couple of prosecutors who just seem to like doing it this way.

Often, lawyers attribute the delay to plea discussions (though that’s generally the reason for the unopposed continuances, as well as the consent ones).

Sometimes something else seems to be going on. For example, Prosecutor Brandi Harden has twice gotten continuances in the case of Emanuel Jackson, the developmentally challenged homeless man who walked into the middle of the insurrection off the street and was handed a baseball bat which he used to assault cops, with the explanation, “There are outstanding issues related to Mr. Jackson’s case, that the parties are continuing to address.”

In several cases, such continuances seem to tie to a defendant’s other existing legal problems. For example, Bryan Betancur violated probation by lying about his purposes for going to DC on January 6, and so has been thrown back in jail because of it (though Betancur’s friend, Britney Dillon, was recently charged in the riot). In another example, when the FBI searched Adam Honeycutt’s home in association with this January 6 arrest warrant, they found guns and marijuana that exposed him to charges in Florida; DC prosecutors are delaying his January 6 prosecution until after a trial this week on the possession charges in Florida. But in at least one of those cases — that of Kash Kelly, charged with just misdemeanor trespassing — the delay comes with a defendant who was discussed in a conversation involving Rudy Giuliani and who cooperated against his fellow gang members in his drug-related prosecution in Illinois. The fact that Ryan Samsel’s then girlfriend, Raechel Genco, has had her own trespassing case continued, makes his more intriguing, though there’s a long list of reasons that readily explain why Samsel’s prosecution has been delayed, not least that he was brutally beaten by someone yet to be determined while he in the DC jail.

All that said, I wanted to point to some clusters that may suggest future developments. An easy one are the cases of Emily Hernandez, her uncle William Merry, and their friend Paul Westover all of which have been delayed with continuances. They traveled to insurrection together and show up in pictures showing off the piece of a sign from Nancy Pelosi’s office they stole.

It would be unsurprising to see these cases get combined into a conspiracy, possibly with others from St. Louis.

That said, a goodly number of defendants awaiting formal charges were in Pelosi’s office, including Williams.

Along with Williams, there are others, like Anthime Gionet, who have known ties with America First or were in the vicinity of others self-identifying as America First who are also awaiting their charges.

Then there’s the case of Brandon Straka. He’s the head of the Walkaway campaign, and was a speaker on January 5. There’s no allegation he entered the door of the Capitol, though at a time when he was on the stairs, he was involved in attempting to take a shield from an officer and for that got charged with civil disorder (in addition to the standard trespass crimes). He obviously could be charged with obstruction, but that hasn’t been charged yet. On May 24, the parties asked for a continuance and excludable delay until August, but Magistrate Judge Robin Meriweather hasn’t yet issued an order approving that. (There’s one other person that engaged in higher level organizing, but I suspect it’s the choice of her attorney.)

Update: This morning Judge Meriweather signed the Straka continuance.

Update: Doug Jensen wants to go work while he awaits resolution of his case (specifically mentioning self-surrender) so he settle his affairs and take care of his family.

Crystalizing Conspiracies: Fourth Superseding, James Breheny, Puma’s GoPro, [Redacted], and the Willard Hotel

Since I’ve acquired new readers with my January 6 coverage and since the financial stress of COVID is abating for many, it seems like a good time to remind people this is not a hobby: it is my day job, and I’d be grateful if you support my work.

In this post, I used the imminent guilty plea of Paul Allard Hodgkins to illustrate that we really don’t know what evidence of conspiracy prosecutors are looking at, which means that we can’t really say whether the January 6 investigation will ultimately hold those who incited the violence accountable. I explained how a PhD in Comp Lit might be useful training to see the gaps in prosecution filings that show what secrets they’re holding in abeyance. And, as I further explained, if those most responsible for January 6 are going to be held accountable, it will likely be (at least in part) via conspiracies with the Oath Keepers and Proud Boys, including the multiple ties Roger Stone has with both militias.

This post is meant to be read in tandem with that one.

This one will look at four developments in the case against the Oath Keepers in the last week or so.

The superseding indictment turns the screws

Most spectacularly, the government rolled out a fourth superseding Oath Keeper indictment yesterday. The ostensible purpose of it was to add four new defendants: Joseph Hackett, Jason Dolan, and William Isaacs, all from Florida, along with a fourth, accused of just three crimes, whose name is redacted.

The indictment broadens the kinds of communications used to communicate during the conspiracy, including Signal along with Zello, as well as orders to write key details in cursive, then send them via Proton Mail.

It adds a comment Stewart Rhodes made on November 9 laying out what I’ll call the “Antifa foil” — an affirmative plan, laid out months before the insurrection, to use the “threat” of Antifa as the excuse to come armed and a means to foment violence.

At a GoToMeeting5 held on November 9, 2020, PERSON ONE told those attending the meeting, “We’re going to defend the president, the duly elected president, and we call on him to do what needs to be done to save our country. Because if you don’t guys, you’re going to be in a bloody, bloody civil war, and a bloody – you can call it an insurrection or you can call it a war or fight.” PERSON ONE called upon his followers to go to Washington, D.C., to let the President know “that the people are behind him.” PERSON ONE told his followers they needed to be prepared to fight Antifa, which he characterized as a group of individuals with whom “if the fight comes, let the fight come. Let Antifa – if they go kinetic on us, then we’ll go kinetic back on them. I’m willing to sacrifice myself for that. Let the fight start there. That will give President Trump what he needs, frankly. If things go kinetic, good. If they throw bombs at us and shoot us, great, because that brings the president his reason and rationale for dropping the Insurrection Act.” PERSON ONE continued, “I do want some Oath Keepers to stay on the outside, and to stay fully armed and prepared to go in armed, if they have to . . . . So our posture’s gonna be that we’re posted outside of DC, um, awaiting the President’s orders. . . . We hope he will give us the orders. We want him to declare an insurrection, and to call us up as the militia.” WATKINS, KELLY MEGGS, HARRELSON, HACKETT, PERSON THREE, PERSON TEN, and others known and unknown attended this GoToMeeting. After PERSON ONE finished speaking, WATKINS and KELLY MEGGS asked questions and made comments about what types of weapons were legal in the District of Columbia.

The indictment provides more evidence of a plan to have Oath Keepers from North Carolina stationed as a Quick Reaction Force to pick up weapons from one of two locations in DC and deliver them to others already there (a recent filing arguing Thomas Caldwell needs to keep informing pretrial services of his movements included surveillance video from the Ballston Comfort Inn of the conspirators carrying around presumed guns draped in sheets).

On the evening of January 2, 2021, at about 5:43 p.m., KELLY MEGGS posted a map of Washington, D.C., in the Leadership Signal Chat, along with the message, “1 if by land[,] North side of Lincoln Memorial[,] 2 if by sea[,] Corner of west basin and Ohio is a water transport landing !!” KELLY MEGGS continued, “QRF rally points[.] Water of the bridges get closed.”

[snip]

On January 4, 2021, CALDWELL emailed PERSON THREE several maps along with the message, “These maps walk you from the hotel into D.C. and east toward the target area on multiple roads running west to east including M street and P street, two of my favorites . . . .”

[snip]

On January 4, 2021, WATKINS wrote in the Florida Signal Chat, “Where can we drop off weapons to the QRF team? I’d like to have the weapons secured prior to the Op tomorrow.”

On the morning of January 5, 2021, HARRELSON asked in the Florida Signal Chat for the location of the “QRF hotel,” and KELLY MEGGS responded by asking for a direct message.

It provides more details about what the Oath Keepers did in the Capitol (including descriptions of how the kitted out veterans folded — retreated — as soon as they were hit with some tear gas).

When officers responded by deploying a chemical spray, the mob—including CROWL, WATKINS, SANDRA PARKER, YOUNG, and ISAACS—retreated.

[snip]

JAMES briefly breached the Rotunda but was expelled by at least one officer who aimed chemical spray directly at JAMES, and multiple officers who pushed him out from behind.

Importantly, the superseding indictment adds civil disorder charges against six of the Oath Keepers for interactions they had with cops inside the Capitol. It adds an assault charge against Joshua James for his physical interaction with cops. It adds obstruction charges against Kelly Meggs, Kenneth Harrelson, and James for deleting comms. Some of these charges were expected; it’s just that adding four new defendants was a convenient time to add them.

As these defendants are sitting here, though, their legal jeopardy is getting worse. Which is likely part of the point. They might stave off any further charges if they decide to cooperate with prosecutors.

When the government first charged this conspiracy, they were way over their skis, with detention requests and claims of danger that they did not yet have (or were not yet willing to show) evidence to support. That’s no longer true, and I wouldn’t be surprised if the government tries to detain a few more of these defendants when they are arraigned on the new charges this week.

James Breheny’s inter-militia network

One of the interesting details of this indictment is the exclusion of Oath Keeper James Breheny from it. Unlike the Proud Boys, all the Oath Keepers have been charged on one conspiracy indictment. The sole exception is Jon Schaffer, who from very early on was cultivated to flip, which he did on April 16. Remarkably, it’s not clear that Schaffer’s cooperation shows up in the new superseding indictment.

Now Breheny joins Schaffer in being charged (at least for now) on his own, which means, as of now, he’s only on the hook for his own crimes, not those of 16 co-conspirators. Breheny is an Oath Keeper from New Jersey who self-surrendered (suggesting ongoing discussions involving a lawyer) on May 20.

Breheny’s charging documents are interesting on several points. First, the affidavit excerpts a post Stewart Rhodes published on December 14, calling on Trump to invoke the Insurrection Act, including this paragraph:

You must act NOW as a wartime President, pursuant to your oath to defend the Constitution, which is very similar to the oath all of us veterans swore. We are already in a fight. It’s better to wage it with you as Commander-in-Chief than to have you comply with a fraudulent election, leave office, and leave the White House in the hands of illegitimate usurpers and Chinese puppets. Please don’t do it. Do NOT concede, and do NOT wait until January 20, 2021. Strike now.

This Rhodes post doesn’t appear in the Oath Keeper conspiracies, though it is a continuation of the November 9 comment from Rhodes also calling for insurrection, and it provides context for a comment he made on January 6 about what he expected Trump to do.

Then, Breheny’s complaint describes him inviting Rhodes to “a leadership meeting of ‘multiple patriot groups'” in Quarryville, PA on January 3, 2021. His invite directed Rhodes not to bring a phone and explained,

This will be the day we get our comms on point with multiple other patriot groups, share rally points etc. This one is important and I believe this is our last chance to organize before the show. This meeting will be for leaders only.

Breheny’s complaint also explains that Rhodes only added Breheny to the leadership list for the Oath Keepers on January 6. In explaining that detail, a footnote explains,

numerous individuals affiliated with the Oath Keepers who have been alleged to have participated in the riots participated in this chat and have been indicted in US v. Caldwell et al, 21-cr-28-APM.

It’s a neat way of saying that Breheny conspired with those charged in the main Oath Keepers conspiracy and they conspired with him, without charging him in that conspiracy.

The rest of the complaint explains how Breheny lied to the FBI about what he did on January 6, but after the government got a warrant for his phone, they obtained pictures and texts showing he had done far more on January 6 than he admitted to cops, including fighting his way in the East Doors that all the other Oath Keepers entered.

The government has been selective about whom they’re charging with obstruction for lying and deleting evidence, but their case that Breheny deliberately attempted to obstruct the investigation is quite strong.

Anthony Puma’s GoPro is arrested

On May 27, a guy from Michigan named Anthony Puma was arrested, more than four months after the FBI interviewed him on January 14 and after, on January 17, he shared the SD card from the GoPro he wore on January 6.

On April 23, the government obtained Puma’s Facebook account, which provided video and text evidence that, in his January 14 interview, Puma dramatically downplayed his knowledge of events on January 6. Most notably, they found texts he posted on January 5, knowing that, and precisely when, “we are storming” the Capitol the next day.

Tomorrow is the big day. Rig for Red. War is coming

We are here. What time do we storm the House of Representatives?

Hopefully, we are storming the House of Representatives tomorrow at 100 pm.

There’s no hint in his charging documents that Puma has association with the Oath Keepers. Assuming he does not, it seems likely he was arrested, as I believe a number of other recent defendants were, so he can be forced to authenticate the important video evidence he shot on the day of the insurrection.

As a Comp Lit PhD who had to read a fuck-ton of postmodern theory, my favorite picture from his GoPro shows him filming himself shooting a video on his phone as he approached the Capitol.

But there are two other clips that I suspect are more important — one, showing what I believe to be a second stack of likely Oath Keepers preparing to breach the Capitol.

And another, showing presumed Oath Keepers on their golf cart race from the Willard Hotel to reinforce the Capitol, calling out, “We are inside, they need help, we’ve breached the Capitol.”

So whether or not Puma has a tie to the Oath Keepers, he now has reason to cooperate with prosecutors on making this video available for any trial.

[Redacted]

As noted, there were four people added to the Oath Keepers conspiracy indictment, but the name of one remains redacted.

It can’t be Roger Stone, as a lot of people are wishing, because Stone’s not an Oath Keeper.

But whoever [redacted] is, he almost certainly traveled with Roberto Minuta and Joshua James from the Willard Hotel where they were “guarding” Roger Stone and others to the Capitol.

I say that because of four paragraphs from the third superseding indictment describing the golf cart race to the Capitol, three are redacted in the fourth.

That doesn’t necessarily mean that [redacted] has had a child with Roger Stone or anything as exciting as that. It does mean that someone who was a likely witness to what happened on the Willard Hotel side of phone calls between Person Ten (who was the ground commander for the Oath Keepers that day) and James has been added to the conspiracy.

[redacted] appears to have entered the Capitol with Minuta and James, as what had been ¶104 describing their entrance “together with others known and unknown” in the third superseding is redacted as ¶154 in the fourth.

But the potentially more interesting actions of [redacted] appear in ¶¶76 and 77, which explain pre-insurrection communications and planning, as well as ¶99, which must explain what [redacted] did the morning of the insurrection, probably with James and Minuta. And ¶102 likely describes what the three of them were doing at the Willard Hotel while everyone else started breaching the Capitol.

As I said in this post, it takes more than four months to charge a complex conspiracy. But these four developments together add a December call for insurrection (in tandem with events that day in DC), places the Oath Keepers — including Stewart Rhodes — in a January 3 meeting coordinating with other militias, and it seemingly adds a third witness to what went on in the Willard Hotel the morning of the insurrection.

Latex Gloves Hiding Evidence of Conspiracies: On the Unknown Adequacy of the January 6 Investigation

Since I’ve acquired new readers with my January 6 coverage and since the financial stress of COVID is abating for many, it seems like a good time to remind people this is not a hobby: it is my day job, and I’d be grateful if you support my work.

Update, 6/2: As this post lays out, Hodgkins’ plea was indeed just a garden variety plea. During the hearing he explained the latex gloves. He carries a First Aid kit around all the time and saw Joshua Black’s plastic bullet wound (though he didn’t know Black and didn’t name him in the hearing) and put gloves on in preparation to provide medical assistance. After Black declined his help, he took the latex gloves off.

On Wednesday, June 2, insurrectionist Paul Allard Hodgkins will plead guilty, becoming just the second of around 450 defendants to publicly plead guilty (particularly given the number of people involved, there may be — and I suspect there are — secret cooperation pleas we don’t know about).

NOTICE OF HEARING as to PAUL ALLARD HODGKINS: A Plea Agreement Hearing is set for 6/2/2021, at 11:00 AM, by video, before Judge Randolph D. Moss. The parties shall use the same link for connecting to the hearing.(kt)

This could be the first of what will be a sea of plea deals, people accepting some lesser prison time while avoiding trial by pleading out. But there’s one detail that suggests it could be more, that suggests Hodgkins might have knowledge that would be sufficiently valuable that the government would give him a cooperation deal, rather than just a plea to limit his prison time.

Hodgkins is one of the people who made it to the Senate floor and started rifling through papers there, which by itself has been a locus of recent investigative interest. But he is an utterly generic rioter, wearing a Trump shirt and carrying a Trump flag. According to an uncontested claim in his arrest affidavit, he told the FBI he traveled to the insurrection from Florida alone, by bus. Because the only challenge he made to his release conditions — to his curfew — was oral, and because the prosecutor in his case hasn’t publicly filed any notice of discovery (which would disclose other kinds of evidence against him), there’s nothing more in his docket to explain who he is or what else he did that day, if anything.

But one thing sticks out about him: before he started rifling through papers in the Senate, he put on latex gloves.

It’s not surprising he had gloves. During the pandemic, after all, latex gloves have been readily available, and I’ve wandered around with gloves in my jacket pocket for weeks. But he did show the operational security to put them on, when all around him people were just digging in either bare-handed or wearing the winter or work gloves they had on because it was a pretty cold day.

There’s just one other instance I know of where someone at the insurrection showed that kind of operational security (though there is one person identified by online researchers by the blue latex gloves he wore while playing a clear organizational role outside the Capitol). When one of the guys that Riley June Williams was with started to steal Nancy Pelosi’s laptop, Williams admonished him, “dude, put on gloves” and threw black gloves (which may or may not be latex) onto the table for him to use.

There’s no reason to believe there’s a tie (as it happens, Williams had a status hearing last week where her conditions were loosened so she can look for work). There is a cybersecurity prosecutor, Mona Sedky, who is common to both cases, which sometimes indicates a tie, but she is also on cases against defendants who have no imaginable tie to Williams. But Hodgkins exhibited the kind of operational security that, otherwise, only other people who seemed to be operating from some kind of plan exhibited.

My point is not that there’s a tie, but that we don’t know whether there’s something more interesting about Hodgkins, and we might not even learn whether there is on Wednesday, in significant part because if there is one, prosecutors may not want to share that information publicly.

And I think, particularly in the wake of Republicans’ successful filibuster of a January 6 Commission and discussions of whether there will be any real accountability, that’s a useful illustration about the limits of our ability to measure the efficacy of the investigation right now. Paul Hodgkins could be (and probably is) just some Trump supporter who hopped on a bus, or his latex gloves could be the fingerprint of a connection to more organized forces.

With that said, I’d like to talk about what we can say about the investigation so far, and where it might go.

Last week, when I read this problematic and in several areas factually erroneous attempt to describe the attack in military terms, I realized that readers new to my work may not understand what I do.

I cover a range of things, but when I cover a legal case, I cover the legal case as a means to understand what prosecutors are seeing. That’s different than describing the alleged crime itself; particularly given the flood of defendants, I’m not, for example, reading through scraped social media accounts from before the attack to understand what was planned in the semi-open in advance. But reading the filings closely is one way to understand where the criminal investigation might go and the chances it will be successfully prosecuted and if so how broadly the prosecution will reach.

I’m not a lawyer, though I’ve got a pretty decent understanding of the law, especially the national security crimes I’ve covered for 17 years. But my background in corporate documentation consulting and comparative literature (plus the fact that I don’t have an editor demanding a certain genre of writing) means I approach legal cases differently than most other journalists. For the purposes of this post, for example, my academic expertise in narrative theory makes me attuned to how prosecutors are withholding information and focalizing their approach to preserve investigative equities (or, at times, hide real flaws in their cases). Prosecutors are just a special kind of story-teller, and like novelists and directors they package up their stories for specific effects, though criminal law, the genre dictated by court filings, and prohibitions on making accusations outside of criminal charges impose constraints on how they tell their stories.

One of the tools prosecutors use, both in a legal sense and a story-telling one, is conspiracy. The problematic military analysis, linked above, totally misunderstood that part of my work (as have certain Russian denialists looking for a way to attack that doesn’t involve grappling with evidence): when I map out the conspiracies we’re seeing in January 6, I’m not talking about the overarching conspiracy that made it successful, how the entire event was planned. Rather, I’m observing where prosecutors have chosen to use that tool — by charging four separate conspiracies against Proud Boys that prosecutors are sloppily treating as one, and charging (as of yesterday) sixteen members of the Oath Keepers in a single conspiracy — and where they haven’t, yet — for a set of guys who played key roles in breaching the East door and the Senate chamber who armed themselves and traveled together. As that set of guys shows, prosecutors aren’t limited to using conspiracy with organized militias, and I expect we’ll begin to see some other conspiracies charged against other networks of insurrectionists. It’s virtually certain, for example, that we’ll see some conspiracies charged against activists who first organized together in local Trump protests; I expect we’ll see conspiracies charged against other pre-existing networks (like America First or QAnon or even anti-vaxers who used those pre-existing networks to pre-plan their role in the insurrection).

Conspiracies are useful tools for prosecutors for several purposes. For example, a conspiracy charge can change what you need to prove: that the conspiracy was entered into and steps taken, some criminal, to achieve the conspiracy, rather than the underlying crime. It can used to coerce cooperation from co-conspirators and enter evidence at trial in easier fashion. And it’s the best way to hold organizers accountable for the crimes they recruit others to commit.

If Trump, or even his flunkies, are going to be held accountable for January 6, it will almost certainly be through conspiracy charges built up backwards from the activities at the Capitol. I am agnostic on whether they will be, but it’s not as far a reach as some might think. This handy guide to conspiracy law that Elizabeth de la Vega laid out during the Mueller investigation provides a sense of why that is.

Conspiracy Law – Eight Things You Need to Know.

One: Co-conspirators don’t have to explicitly agree to conspire & there doesn’t need to be a written agreement; in fact, they almost never explicitly agree to conspire & it would be nuts to have a written agreement!

Two: Conspiracies can have more than one object- i.e. conspiracy to defraud U.S. and to obstruct justice. The object is the goal. Members could have completely different reasons (motives) for wanting to achieve that goal.

Three: All co-conspirators have to agree on at least one object of the conspiracy.

Four: Co-conspirators can use multiple means to carry out the conspiracy, i.e., releasing stolen emails, collaborating on fraudulent social media ops, laundering campaign contributions.

Five: Co-conspirators don’t have to know precisely what the others are doing, and, in large conspiracies, they rarely do.

Six: Once someone is found to have knowingly joined a conspiracy, he/she is responsible for all acts of other co-conspirators.

Seven: Statements of any co-conspirator made to further the conspiracy may be introduced into evidence against any other co-conspirator.

Eight: Overt Acts taken in furtherance of a conspiracy need not be illegal. A POTUS’ public statement that “Russia is a hoax,” e.g., might not be illegal (or even make any sense), but it could be an overt act in furtherance of a conspiracy to obstruct justice.

We know that Trump and his flunkies shared the goal of the conspiracies that have already been charged: to prevent the certification of the vote. Trump (and some of his flunkies) played a key role in one of the manner and means charged in most of the conspiracies: To use social media to recruit as many people as possible to get to DC. Arguably, Mike Flynn played another role, in setting the expectation of insurrection.

What’s currently missing is proof (in court filings, as opposed to the public record) that people conspiring directly with Trump were also conspiring directly with those who stormed the Capitol. But we know the White House had contact with some of the conspirators. We know that organizers like Ali Alexander and Alex Jones likewise had ties to both conspirators and Trump’s flunkies (an Alex Jones producer has already been arrested). We know that Flynn had other ties to QAnon (which is why I’ll be interested if the government ever claims QAnon had some more focused direction with respect to January 6). Most of all, Roger Stone has abundant ties with people already charged in the militia conspiracies, and was at the same location as some of the Oath Keepers before they raced to the Capitol in golf carts to join the mob. If Trump or his flunkies are held accountable, I suspect it will go through conspiracies hatched in Florida, and the overlap right now between the Oath Keeper and Proud Boys conspiracies are in Floridians Kelly Meggs and Joe Biggs. But if they are held accountable, it will take time. It’s hard to remember given the daily flow of new defendants, but complex conspiracies don’t get charged in four months, and it will take some interim arrests and a number of cooperating witnesses to get to the top levels of the January 6 conspirators, if it ever happens.

This post, which is meant to be read in tandem with this one, assesses developments in the last week or so in the Oath Keepers conspiracy case.

Last Month, Baked Alaska Got to Ditch His Ankle Bracelet

While I am probably missing a few examples, I can think of just two defendants that DOJ has voluntarily loosened release conditions for without some kind of purpose tied to employment: Jon Schaffer, when he entered into a cooperation agreement with the government, and far right propagandist Baked Alaska, AKA Anthime Gionet, last month.

A warrant for Gionet’s arrest was obtained on January 7 and he was arrested on January 15 on misdemeanor charges of trespassing. He was released on personal recognizance but, unlike many other trespassing defendants, he was outfitted with a GPS monitor to make sure he stayed in AZ.

He was sent away and has never since been charged via Information.

On March 23, DOJ added a second attorney to this simple trespassing case, Christopher Brown. On March 26, Gionet asked to lose the ankle bracelet, based (in part) on a claim that he is media and (in part) on a claim that other misdemeanors he faces in AZ won’t likely go to trial. On March 29, DOJ asked for a consent motion to continue the case for another month past March 29 saying they’re trying to “resolve” this issue; this is the same kind of motion to continue they used in the Schaffer case (as opposed to unopposed motions to continue, as they’ve used in most other January 6 cases). And on March 31, the government said that, while it doesn’t agree with Gionet’s claim to be media, they don’t mind if he ditches his ankle bracelet because he’s been a good little Nazi sympathizer while out on release.

The defendant has asked this Court to remove Global Positioning System (GPS) monitoring from his release conditions. In his motion, the defendant argues that he is a member of the news media. The government disagrees. Nevertheless, because the defendant has been compliant with his release conditions to-date, the government does not oppose the instant motion.

On its face, it was an inexplicable move, particularly given the way the January 6 defendants have pointed to each other’s release conditions like 400 children complaining about unfair treatment to their mother.

When Larry Brock, also (currently) facing just trespass charges asked to change his release conditions, the government objected both to permitting Brock to travel freely in TX as well as access to the Internet. “The Defendant has not provided a change in circumstances to justify a change in release conditions,” the government argued. (John Bates overruled the government on the latter point.)

And when Felicia Konold, accused in a more serious Proud Boy conspiracy, made a similar argument about good behavior in a bid to lose her GPS monitor, the government argued that good behavior was insufficient reason to change release conditions. Indeed, in that case they pointed to her pending DUI case (like Gionet’s misdemeanor charges, in AZ), to suggest her behavior wasn’t all that great. “In sum, the defendant has not raised any novel issue that merits any meaningful change of her release conditions,” the government explained in opposing her request.

When Nicholas DeCarlo, functionally equivalent to Gionet as a right wing propagandist (albeit charged, in addition to trespassing, with conspiracy, obstruction, and for damaging the Capitol), asked to have his GPS removed, the government said nothing had changed to justify the change. “Finally, there have been no change in circumstances, other than the passage of time, that would justify these instant modifications.”

But in Gionet’s case, with no visible change in circumstances, and with pending state charges just like Konold, he ditched the ankle bracelet.

It’s certainly possible that the government, in the wake of the Eric Munchel decision (released the same day Gionet made his request), didn’t want to bother fighting this more aggressively. It’s possible they’re more sensitive to the claim that Gionet is a journalist than they let on — except that in the wake of this exchange, they’ve continued to arrest people making similar claims.

Or it’s possible something more interesting is going on. Ordinarily, a Nazi sympathizer facing a trespass charge wouldn’t have anything to deal to the government; nor would a trespass charge incent a defendant to make a deal.

Except that’s not the only exposure Gionet has or had.

On January 22, between the time Gionet was first charged and when he was arraigned, Federal prosecutors in Brooklyn charged Douglas Mackey in a conspiracy to interfere with others’ right to vote, based off Mackey’s social media campaign encouraging Hillary voters to vote by hashtag rather than casting a legal vote. Mackey was the only of the co-conspirators charged, but according to Luke O’Brien — who first broke Mackey’s true identity — Gionet was one of the four other co-conspirators described in the complaint.

Another of Mackey’s co-conspirators is Anthime “Baked Alaska” Gionet, a pro-Trump white nationalist who was arrested on Jan. 16 for his involvement in storming the Capitol on Jan. 6. Gionet also participated in the deadly white nationalist “Unite the Right” rally in Charlottesville, Virginia, in 2017. (A New York Times story reported Wednesday afternoon that Gionet was a co-conspirator, citing a source close to the investigation, and HuffPost can confirm that reporting based on the Twitter ID cited in the complaint.)

HuffPost was able to link the Twitter IDs in the complaint to Gionet and Microchip through previously collected Twitter data, interviews and evidence left by both extremists on other websites. In direct messages with this reporter last year, Microchip also confirmed that he was using the Twitter account associated with the user ID listed in the complaint.

In the time that nothing has been happening in Gionet’s January 6 charge, Mackey has been indicted and his team has been reviewing evidence. On March 29 — just after DOJ added a second attorney to the Gionet case — DOJ added a third attorney to Mackey’s case.

With five prosecutors between the two cases, things are clearly more complex than the filings suggest.

And that may be the change in circumstances that allowed Gionet to ditch his ankle bracelet.

Update: Michael Daughtry, accused of trespassing, also got to ditch his ankle bracelet after wearing it for a week.

Updated List of January 6 Assault Defendants

Back in February, I did a post listing the January 6 defendants charged with one or another type of assault against police. I’ve been updating the post (and will update this one), but that one had gotten out of date and I’ve spent much of the morning doing housekeeping on my own tracking of the January 6 defendants so I wanted to repost that list.

Since February, some known assailants have been charged:

  • Julian Khater and George Tanios in the assault on Brian Sicknick suspected of playing a role in his death
  • Albuquerque Cosper Head, Thomas Sibick, and Kyle Young — charged together — in an attack on Michael Fanone and, separately, Daniel Rodriguez for tasing him
  • An expanding group — currently including Jeffrey Sabol, Peter Stager, Michael Lopatic, Clayton Mullins, and Jack Whitton — accused of dragging a cop into the crowd and beating him with various weapons and attacking another, thwarting attempts to help Rosanne Boyland, who was dying nearby

In addition, more militia defendants are being accused of assault, including Proud Boys Christopher Quaglin and Christopher Worrell. Last week, Oath Keeper Jon Schaffer entered a cooperation agreement with the government, probably staving off an assault charge tied to his use of bear spray, and a recent detention motion claims Joshua James riled up assaults on cops as well.

Then there are the rather spectacular cases of Trump State Department official Freddie Klein and former Green Beret Jeffrey McKellop, who’ve been charged with assault.

Yet even while the FBI rounds up more of the people charged with some of the identifiable assaults from January 6, the great majority of BOLOs (Be On the Lookout for — basically, requests for tips) released by the FBI, currently numbering 360, are assault suspects who have yet to be identified. So there may be around 200 more people who could be charged with assault.

And, of course, the pipe bomber remains at large, in spite of a $100,000 reward for information leading to that person’s arrest.

  1. Daniel Page Adams, whose arrest affidavit describes engaging in a “direct struggle with [unnamed] law enforcement officers” (his cousin, Cody Connell, described the exchange as a “civil war”). Tip SM
  2. Zachary Alam, who pushed cops around as he was trying to break into the Speaker’s Lobby. BOLO 79
  3. Wilmar Alvarado, who pushed cops in the mob trying to get in from the West Terrace. BOLO 65
  4. John Anderson, who after taking two riot shields from cops, needed their assistance after getting maced.
  5. Craig Bingert, who allegedly helped shove cops with a barricade. BOLO 105
  6. Brian Glenn Bingham, who scuffled with two cops after Ashli Babbitt got shot. BOLO 93
  7. David Blair, who poked a cop with a lacrosse stick with a Confederate flag attached. Onsite arrest
  8. Nicholas James Brockhoff, who sprayed a fire extinguisher from the Terrace at cops. BOLO 255
  9. Jamie Buteau, whom surveillance video showed throwing chairs at cops several times in the Capitol. (BOLO 188)
  10. Daniel Caldwell, who was filmed macing 15 cops. SM
  11. Matthew Caspel, who was filmed charging the National Guard. Tip SM
  12. William Chrestman, who is accused of threatening a cop as Proud Boys pushed their way past the original line of defense (charged with 18 USC 115). NM
  13. Reed Christensen, who was videotaped swinging at cops. BOLO and video 191
  14. Luke Coffee, who was videotaped beating several cops with a crutch. Tip SM and BOLO 108
  15. Cody Connell, who with his cousin was in a direct confrontation with cops. Tip SM
  16. Lance Copeland, who admitted to fighting with cops on the barricades.
  17. Christian Cortez, who yelled at cops behind a door.
  18. Matthew Council, who was arresting for shoving cops the day of the riot.
  19. Kevin Creek, who was filmed hitting and kicking officers on the West Terrace. BOLO 296
  20. Bruno Cua, who was filmed shoving a cop to be able to get into the Senate. Tip LE
  21. Nathan DeGrave, whom security cameras caught threatening to fight cops. Network Sandlin
  22. Daniel Egdvedt, a large man who took swipes and grabbed at several officers as they tried to remove him from the Capitol. BOLO 76
  23. Scott Fairlamb, who was caught in multiple videos shoving and punching officers (one who whom is identified but not named); Cori Bush has said she was threatened by him last summer. Tips, including SM
  24. Joseph Fischer, a cop who got in a tussle with another cop. Tip SM
  25. Kyle Fitzsimons, who charged officers guarding the doorway of the Capitol. BOLO 139
  26. Michael Foy, a former Marine who was caught on multiple videos beating multiple cops with a hockey stick. Tip SM
  27. Kevin Galetto, who allegedly knocked an MPD officer to the ground in the Tunnel. BOLO 146
  28. Robert Giswein, who appears to have ties to the Proud Boys and used a bat to beat cops. NM
  29. Vitali Gossjankowski, who was interviewed about whether he had tased MPD officer Michael Fanone, causing a heart attack; instead he was charged with assaulting CPD officer MM. BOLO 98 — with a second one mentioned
  30. Daniel Gray, who got into several confrontations with officers inside the Capitol, including knocking down a female cop. Tip SM
  31. Bryan Gunderson, charged with assault while committing a felony on a superseding.
  32. Alex Harkrider, who after being filmed fighting with police at the door of the Capitol, posted a picture with a crowbar labeled, “weapon;” he was charged with abetting Ryan Nichols’ assault. Tip SM
  33. Richard Harris, who assaulted a journalist in Oregon weeks before threatening cops, Nancy Pelosi, and Mike Pence during the riot.
  34. Albuquerque Cosper Head, accused of assaulting Michael Fanone.
  35. Dillon Herrington, who threw a 4X4 at cops, then threw a barrier. Sedition Hunters picture
  36. Emanuel Jackson, whom videos caught punching one officer, and others show beating multiple officers with a metal baseball bat. BOLO 31
  37. Shane Jenkins, alleged to have used a crowbar to break in a window, later threw things including a pole, a desk drawer, and a flagpole at cops.
  38. Douglas Jensen, the QAnon who chased Officer Goodman up the stairs, got charged with resisting him. NM, BOLO 10
  39. Taylor Johnatakis, charged with 111.
  40. Paul Johnson, who carried a bullhorn and was in the initial assault from the west side with Ryan Samsel. BOLO 49
  41. Chad Jones, who used a Trump flag to break the glass in the Speaker’s Lobby door just before Ashli Babbitt was shot and may have intimidated three officers who were pursuing that group. Tip NM
  42. David Judd, who threw a firecracker at cops in the tunnel. Tip and BOLO 137
  43. Julian Elie Khater, who allegedly sprayed Brian Sicknick and two others with very powerful bear spray. BOLO 190
  44. Freddie Klein, the State Department employee who fought with three different officers while trying to break through police lines. BOLO 136
  45. Edward Jacob Lang, who identified himself in a screen cap of a violent mob attacking cops and who was filmed slamming a riot shield into police and later fighting them with a red baseball bat. Tip SM
  46. Nicholas Languerand, accused of throwing a bollar, a can of pepper spray, and a stick at cops in the Lower West Tunnel.
  47. Mark Jefferson Leffingwell, whom a Capitol Police officer described in an affidavit punching him. Onsite arrest
  48. Joshua Lollar, who described fighting cops and was caught in pictures showing himself in the front lines confronting cops. Tip SM
  49. Michael Lopatic, who allegedly assaulted some cops with Stager and Sabol, then took a BWC to hide the assault. BOLO 133
  50. Clifford Mackrell, who attempted to strip an officer’s gas mask after someone else sprayed bear spray. BOLO 124
  51. Patrick Edward McCaughey III, who was filmed crushing MPD Officer Daniel Hodges in one of the doors to the Capitol. BOLO 62
  52. James McGrew, who shoved some cops in the Rotunda then bared his King James belly tattoo, Tip Network
  53. Sean McHugh, accused of spraying some yellow substance at cops and using a sign as a battering ram, BOLO 59
  54. Jeffrey McKellop, a former Special Forces guy accused of assaulting 4 cops, including one by using a flagpole as a spear. BOLO 215
  55. Jonathan Mellis, who used some kind of stick to try to jab and beat police. Tip SM
  56. Jalise Middleton
  57. Mark Middleton, the Middletons fought the cops outside the West entrance to the Capitol. BWC
  58. Garret Miller, who pushed back at cops and then threatened both AOC and the cop who killed Ashli Babbit. Tip LE
  59. Matthew Ryan Miller, who released fire extinguisher in close quarters. Tip SM
  60. Jordan Mink, who used a pole to assault the police.
  61. Brian Mock, who kicked a cop when he was down and bragged about it. BOLO and Tip SM
  62. Patrick Montgomery was charged with assault against MPD officer DJ in a follow-up indictment.
  63. Robert Morss, who in addition to tussling with a cop, was a key organizer of shield walls in the Tunnel. BOLO 147
  64. Aaron Mostofsky, possibly for stripping a cop of his or her armored vest and riot shield. NM
  65. Clayton Mullins, alleged to be part of the mob that assaulted AW and two other police. Tip
  66. Jonathan Munafo, alleged to have fought with cops in two different locations, including punching one in the Lower West Terrace. (BOLO and video 170)
  67. Ryan Nichols, who was filmed wielding a crowbar and yelling, “This is not a peaceful protest,” then spraying pepper spray against police trying to prevent entry to the Capitol. Tip SM
  68. Grady Owens, who allegedly hit a cop in the head on the Mall with a skateboard, as he was heading to reinforce the Capitol. BOLO 109
  69. Jason Owens, accused of assaulting a second officer after his son attacked one with a skateboard. Network Owens
  70. Jose Padilla, who shoved cops at a barricade, then helped use a Donald Trump sign as a battering ram against them. Tip SM
  71. Robert Palmer, who sprayed cops with a fire extinguisher then threw it at them.
  72. Dominic Pezzola, a Proud Boy who stole a shield from cops. NM (BOLO 43)
  73. Mark Ponder, filmed repeatedly attacking cops with poles.
  74. Christopher Quaglin, accused of assaulting cops both at the initial breach of the barriers and later in the Lower West Terrace.
  75. Stephen Chase Randolph, who shoved cops at the initial barricade and later bragged about a female cop’s head bouncing off the pavement. BOLO 168
  76. Daniel Rodriguez, whom videos appear to show tasing Michael Fanone. Sedition Hunter-based reporting
  77. Greg Rubeacker, Tip SM
  78. Jeffrey Sabol, helped drag a cop from the Capitol and beat him while prone. LE arrest (erratic driving)
  79. Ryan Samsel, who set off the riot by giving a cop a concussion; he appears to have coordinated with Joe Biggs. BOLO 51 (though not IDed by BOLO)
  80. Salvador Sandoval, Jr, who went to the insurrection with his mother and shoved some cops.
  81. Robert Sanford, who was filmed hitting Capitol Police Officer William Young on the head with a fire extinguisher. Tip NM
  82. Ronald Sandlin, who tried to wrestle cops to keep the door to the Senate open. MPD tip
  83. Troy Sargent, who appears to have punched some cops holding a line. Tip SM
  84. Peter Schwartz, a felon who maced several cops. Tip NM (BOLO 120)
  85. Dan Scott, AKA Milkshake, who shoved some cops in the initial assault. Network.
  86. Christian Secor, a UCLA self-described fascist who helped shove through some cops to break into the Capitol and then sat in the Senate chamber. Tip NM
  87. DJ Shalvey. The details of the assault charged against Shalvey are not public, but he did get charged for lying about it to the FBI.
  88. Barton Wade Shively, who pushed and shoved some police trying to get into the Capitol, punched another, then struck one of those same cops later and kicked another. BOLO 55
  89. Thomas Sibick, accused of being among a group of men who attacked Michael Fanone and stole his badge.
  90. Geoffrey Sills, alleged to have used both a pole and a baton in several assaults on cops in the tunnel.
  91. Audrey Southard-Rumsey, the talented singer deemed one of the main agitators in the Statuary Hall Connector. Tip SM
  92. Peter Francis Stager, who was involved in beating a prone cop with a flagpole. Tip SM
  93. Ezekial Stecher, whom videos showed pushing in the Lower West Tunnel.
  94. Tristan Stevens, who fought cops with a shield and baton. Video
  95. Isaac Sturgeon, who is accused of using a barricade to attack some officers.
  96. George Pierre Tanios, who allegedly conspired with Julian Khater to attack Brian Sicknick and two other cops. BOLO 254
  97. Kenneth Joseph Owen Thomas, who organized a MAGA Caravan from AL and then selfied himself attacking cops. BOLO 214
  98. Christopher Warnagiris, the Marine Major who fought to keep the East door open. BOLO 241
  99. Thomas Webster, who attacked a cop with a flagpole. BOLO 145
  100. Wade Whitten, accused of dragging AW down the steps of the Capitol and hitting him with a crutch. BOLO 130
  101. Duke Wilson, accused of assaulting several officers in the Lower West Tunnel. BOLO 87
  102. Jason Woods, who allegedly used the same tripping attack on a female cop and a cameraman. BOLO 238
  103. Christopher Worrell, a Proud Boy who apparently sprayed pepper spray at a line of police.
  104. Kyle Young, accused of attacking Michael Fanone and another officer, and stealing Fanone’s weapon.