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Where to Look (or Not) for Signs of Life in Rule of Law

According to the court schedule for this week, January 6 defendants Stacie and John Getsinger will plead guilty on Thursday, no doubt to misdemeanor trespassing. On the surface, their guilty plea will likely resemble those of the dozens of other January 6 misdemeanor pleas that have gone before them, and that may be all it is.

But, along with a handful of others (Adam Johnson and Justin McAuliffe, who both pled guilty last week, are two other examples), these pleas may hint at what kind of larger underlying case DOJ is building. That’s because the Getsingers are witnesses to an important detail about the way January 6 worked: that Alex Jones, whom Trump had put in charge of leading mobs to the Capitol, likewise induced them to go to the top of the East steps of the Capitol with a lie, the false claim that Trump would be speaking there. That’s what led a couple like the Getsingers, who otherwise would never have entered the Capitol, to do so.

This comes even as InfoWars personality Owen Shroyer’s attempts to dodge his own legal accountability have brought more focus on Jones’ actions, described as Person One in DOJ’s opposition to Shroyer’s attempt to dismiss his indictment.

When the body-camera individual asked if he could get Person One there, the officer stated, “Through the hole that you guys breached right there” (emphasis added). When the body-camera individual responded that he didn’t breach anything, the officer retorted, “Well, the whole group that was with you guys.” The officer then pointed again away from the Capitol Building toward the northeast, telling them to leave through the same hole he had just said other rioters had breached. An officer surrounded by people illegally on the Capitol Grounds dismissively waving them away from the Capitol Building and toward another area hundreds of others had already illegally breached does not amount to “telling [the defendant] that … police officers could use his help.”

[snip]

[T]he defendant forced his way to the top of Capitol Building’s east steps with Person One and others and led hundreds of other rioters in multiple “USA!” and “1776!” chants with his megaphone. Harkening to the last time Americans overthrew their government in a revolution while standing on the Capitol steps where elected representatives are certifying a Presidential Election you disagree with does not qualify as deescalation.

[snip]

The video shows the defendant on an elevated platform leading chants with his megaphone on the Capitol Grounds before his first interaction with law enforcement officers; it shows the body-camera individual repeatedly (and unsuccessfully) try to get Person One on the Capitol steps; it shows evidence that the defendant reasonably should have known he was somewhere he was not supposed to be, including by stepping near moved barriers and downed signs; and it shows officers repeatedly refer to the defendant’s group as part of the problem and the “breaches” of various police lines. In fact, at the end of the video, the body-camera individual took matters into his own hands after facing multiple rejections for permission. He turned to the group and asked, “Just get him up there? … But we know we might catch a bang or two.” That is not evidence that the defendant received explicit or implicit permission to go onto the Capitol steps. That is evidence that the defendant is guilty of the crimes he is charged with.

Every single time that Merrick Garland has been asked about the scope of the January 6 investigation, he has said his DOJ will follow the evidence where it leads. These details are tidbits of the evidence in question, visible tidbits that would be largely meaningless unless you understood how the Oath Keepers, Joe Biggs, and his former employer all converged on those East doors just before they were opened from inside.

None of these details — and others like them, such as Johnson’s description of the crowd’s response to Rudy Giuliani and Mo Brooks’ calls for violence — guarantee that Rudy and Brooks will be held responsible.

At the rally, JOHNSON listened to several speeches, including by former President Trump, Rudy Giuliani, and an unknown older member of Congress–the latter of whom JOHNSON heard stating that it was time for action and violence. In response to these comments, JOHNSON saw members of the crowd nodding their heads in agreement.

But if you don’t know these details, you don’t know even what is publicly available about the investigation.

I respect David Rothkopf. I share his concerns about the threat Trump poses to US democracy and the limited time before Republicans likely take control of the House and shut down efforts to guard democracy in the US.

But unlike him I know that the place to learn about DOJ’s January 6 investigation is not by asking Harry Litman or Barb McQuade or AG Gill or Lawrence Tribe or even Dahlia Lithwick — all of whom I respect greatly — how they feel about the general direction of the investigation, but instead to look at the actual records or reading the reports of people actually covering hearings, such as this crucial Josh Gerstein story about how prosecutors responded when Judge Carl Nichols (the former Clarence Thomas clerk who happens to be presiding over Steve Bannon’s case) asked if someone who did what Trump did could be charged with the same obstruction charge DOJ is using with the more serious defendants.

At a hearing on Monday for defendant Garret Miller of Richardson, Texas, Nichols made the first move toward a Trump analogy by asking a prosecutor whether the obstruction statute could have been violated by someone who simply “called Vice President Pence to seek to have him adjudge the certification in a particular way.” The judge also asked the prosecutor to assume the person trying to persuade Pence had the “appropriate mens rea,” or guilty mind, to be responsible for a crime.

Nichols made no specific mention of Trump, who appointed him to the bench, but the then-president was publicly and privately pressuring Pence in the days before the fateful Jan. 6 tally to decline to certify Joe Biden’s victory. Trump also enlisted other allies, including attorney John Eastman, to lean on Pence.

An attorney with the Justice Department Criminal Division, James Pearce, initially seemed to dismiss the idea that merely lobbying Pence to refuse to recognize the electoral result would amount to the crime of obstructing or attempting to obstruct an official proceeding.

“I don’t see how that gets you that,” Pearce told the judge.

However, Pearce quickly added that it might well be a crime if the person reaching out to Pence knew the vice president had an obligation under the Constitution to recognize the result.

“If that person does that knowing it is not an available argument [and is] asking the vice president to do something the individual knows is wrongful … one of the definitions of ‘corruptly’ is trying to get someone to violate a legal duty,” Pearce said.

I can’t tell you whether DOJ will get much further up the chain of responsibility for January 6; part of that necessarily depends on DOJ’s success at obtaining cooperation, of which only that of Oath Keepers has DOJ thus far disclosed. I can’t tell you what DOJ is doing behind the scenes in what Garland describes as “following the money.”

But I can tell you that columns like Rothkopf’s, which complain that Garland’s DOJ is not doing enough to hold Trump accountable while ignoring cases like the Tom Barrack prosecution and the Rudy Giuliani investigation that provide concrete evidence about the kinds of investigative steps Garland’s DOJ has been willing to pursue (the Rudy raid was likely among Lisa Monaco’s first major decisions), likely don’t make it any more likely that Garland will be able to act against the masterminds of January 6 any sooner.

A far better use of Rothkopf’s time and space than bitching that Garland has authorized John Durham’s funding request, for example …

We have seen that Garland is letting the highly politicized investigation of special prosecutor John Durham into the conduct of the Trump-Russia investigation continue (by continuing its funding). We therefore have the real prospect that those who sought to look into the Trump-Russia ties that both Mueller and Congressional investigations have demonstrated were real, unprecedented and dangerous might be prosecuted while those who actively sought the help of a foreign enemy to win an election will not be.

… Would be to ask Harry Litman and Barb McQuade and AG Gill and Lawrence Tribe and Dahlia Lithwick about the specific things that Durham has done — like failing to cut-and-paste with fidelity, relying on a Twitter feed for a key factual assertion, and using materiality arguments to skirt DOJ’s prohibition on publicly commenting on uncharged conduct — that put his prosecutions in violation of DOJ guidelines. Such questions would be readily accessible to all by reading just two indictments (as compared to the full dockets of 675 charged January 6 defendants), it would draw on the considerable expertise of the prosecutors he cited, and it might do something concrete to give Garland the political support he would need to force Durham to hew to DOJ guidelines.

Importantly, it may not be possible for DOJ to move quickly enough against Trump without violating due process (just as one example, the Project Veritas investigation could lead to incredibly damaging revelations about political spying targeting the Biden family, but it’s not entirely clear DOJ respected First Amendment protections).

Which means those with a platform would be better off defending the rule of law — selling independents and moderate Republicans on the import of the January 6 investigation — than whining that it is not working quickly enough.

Update: In his piece, Rothkopf complains, as well, that the only visible investigation into the people around Trump is coming from the January 6 Commission, not DOJ.

More troubling to me though is that the only reason we are hearing of any case being brought against Bannon as a senior coup plotter (or upper middle management in any case) is because Congress is investigating the events of Jan. 6. We have not heard a peep out of the Department of Justice about prosecuting those responsible for inciting, planning or funding the effort to undo the lawful transfer of presidential power to the man the American people elected, Joe Biden.

This morning, Adam Schiff went on CNN. Dana Bash asked him about Judge Amit Mehta’s focus on Donald Trump’s role in the insurrection in a sentencing last week. In response, Schiff described that, “I am concerned that there does not appear to be an investigation, unless it’s being done very quietly” into Trump’s call to Brad Raffensperger to demand he come up with just enough votes for Trump to win the state. But Schiff noted that, “this is not January 6 related — specifically, at least, to the violence of that day.”

Then Bash asked whether Schiff was saying he wanted Biden’s DOJ to be more aggressive. Schiff did not answer “yes.” Instead, he responded to a question about DOJ by talking about the January 6 Commission’s role in holding people accountable.

We are now trying to expose the full facts of the former President’s misconduct, as well as those around him. It is certainly possible that what we reveal in our investigation will inform the Justice Department of other facts that they may not yet be aware of yet. And so we will pursue our role in this, which is to expose the malefactors, to bring about legislation as a result of our investigation, to protect the country. But we will count on the Justice Department to play its role.

That is, when Bash asked specifically if DOJ was being aggressive enough on January 6, Schiff implied that the January 6 Commission played a key role in their efforts.

This is something that has not gotten enough attention: Even if DOJ didn’t ask, the Jan 6 Commission would refer people for any crimes they discovered, as SSCI and HPSCI both referred people to Mueller for lying, lies that led to the prosecution and cooperation of (at least) Michael Cohen and Sam Patten. Schiff knows better than anyone that HPSCI’s investigation was critical to the prosecution of Roger Stone. I also suspect that Steve Bannon’s transcripts were important preparation for Bannon’s grand jury appearance in January 2019, because they laid out the script that the White House had given to him for his testimony. I further suspect that SSCI obtained — and then shared — testimony from certain witnesses that Mueller could not otherwise get.

Trump’s pseudo-cooperation with the Mueller investigation, waiving privilege for the investigation but not any prosecution, likely was one hinderance to holding him accountable. And on this investigation, DOJ would be even more constrained, because it could face Executive Privilege claims and definitely would face Speech and Debate protections.

There has been almost no discussion of how closely Bennie Thompson and Liz Cheney are working with DOJ to ensure that the Jan 6 Commission doesn’t impede DOJ’s Jan 6 investigation, but it must be happening.

Similarly, there has been no discussion of obvious witnesses that the Jan 6 Commission has not (yet) subpoenaed, such as Lin Wood or Rudy Giuliani, the latter of whom DOJ seized phones from in another investigation in April.

Finally, there has been little discussion of how DOJ moved to have Executive Privilege waived for Congress just as the Jan 6 Commission got up and running.

DOJ only released its new contact policy — under which the request for a privilege determination may have been passed — on July 21. I’m curious whether the request for a  waiver of executive privilege waiver came after that. Executive privilege considerations were a key limitation on the Mueller investigation overseen in its final days partly by Rosen himself.

At least as interesting, however, is that DOJ sent the letter just one day before DOJ submitted a court filing in the Eric Swalwell lawsuit — speaking of members of Congress but using more generalized language — arguing that no federal officials can campaign in their official capacity and further noting that attacking one’s employer is not within the scope of someone’s job description.

DOJ is using that same waived privilege for the documents responsive to the Jan 6 Commission requests at the National Archive.

That is, DOJ is supporting the efforts of a co-equal branch of government to obtain testimony and records that that co-equal branch of government has a broader claim to than DOJ itself.

And Schiff, who understands better than anyone how HPSCI and DOJ worked together on the Stone prosecution, described, after first answering a question that he distinguished from January 6, then addressing January 6 directly by saying that “our role in this[] is to expose the malefactors,” and “we will count on the Justice Department to play its role” if and when the Commission “inform[s] the Justice Department of other facts that they may not yet be aware of yet.”

Yes, the January 6 Commission has a very short window in which to work. Yes, Congress is taking steps that DOJ does not appear to be taking. But that doesn’t mean that DOJ is not obtaining that evidence.

Brandon Fellows Gets a CIPA Notice

In a truly curious development, Brandon Fellows — the guy on the left in the picture, who is currently accused only of obstruction and trespassing in the January 6 riot — just got a CIPA notice. The Classified Information Procedures Act provides a way for the government to prosecute people using classified information while limiting how much information must be shared with the defendant or made public. Effectively, the government gets to show the judge classified information and argue that it is not helpful to the defense or ask to substitute something more innocuous for the classified information to be used at trial.

It’s not yet clear what kind of classified information the government wants to use against Fellows.

But one thing I’ve been tracking is DOJ’s thus far fruitless attempt to figure out who stole Jeff Merkley’s laptop.

Fellows was one of the people who was in his office during the riot and his arrest affidavit mentions the laptop, but admits that at that point (in January) they had no evidence he stole it.

On January 6, 2021, a live stream video on the DLive platform was broadcasted to the public from user “Baked Alaska” and a portion was later posted on Twitter. In the video, several people were observed in an office that appeared to be within the Capitol. The video showed a person who appeared to be FELLOWS, sitting at a table with his feet propped up on a table, as shown in the still shot below. The chairs, table, drapes, and wall art appeared to be consistent with those in the office posted by Senator Merkley. The conference room in which FELLOWS is present appears to be Senate room S140, the private “hideaway” office of Senator Merkley within the U.S. Capitol. The artwork visible on the walls of the conference room in the video is also visible on a video that Senator Merkley posted to Twitter on January 6, 2021, at 11:36pm, documenting some of the damage to his office, as described above. At this time, there is no evidence that FELLOWS was involved in any of the theft, damage, or destruction – other than being a part of the group that occupied the office for some period of time.

Fellows’ discovery shows they obtained a Pen Register on him (which would allow the government to track his contacts). But it doesn’t show that he received what the guy with whom he was pictured with in Merkley’s office, Justin McAuliffe, received: a picture of the stolen laptop.

In a letter describing the discovery provided to McAuliffe, DOJ included a picture of Merkley’s stolen laptop, among other items.

Since I first started tracking this question — and all the defendants arrested because they were filming in Merkley’s office — in May, several more people who were in Merkley’s office have been arrested.

A (surely partial) list of those who were in Merkley’s office, with their arrest date and current status, includes:

  • Anthime Gionet (Baked Alaska): Arrested January 15, still charged (with just trespassing) on original arrest affidavit
  • Brandon Fellows (upstate NY): Arrested January 16, indicted (with obstruction) February 2, jailed for being an asshole to pre-trial services July 15
  • Justin McAuliffe (Long Island): Arrested January 28 and still charged on arrest affidavit, finalizing plea deal as soon as he recovers from a recent car accident
  • Zach Rehl (Philly): Arrested in the Proud Boys Leadership conspiracy indictment on March 19, charged with conspiracy to obstruct the vote count, among other crimes
  • Felipe Marquez (Miami): Arrested January 19 then later charged with obstruction, only to plead guilty to a misdemeanor on September 10
  • Karol Chwiesiuk (a cop from Chicago who did recon the night before the attack): Arrested June 11, still charged with just trespassing on original arrest affidavit
  • Anton Lunyk (NY): Arrested May 11, charged with trespassing on June 17
  • Antonio Ferrigno and Francis Connor (NY): Buddies of Lunyk arrested on trespass charges on August 31
  • Oliver Sarko (OH): Arrested April 30, still charged with just trespassing on original arrest affidavit
  • Jody Tagaris (FL): Arrested around May 14, charged with trespassing on May 19, change of plea scheduled for October 15
  • Gary Edwards (PA): Arrested May 4, charged with trespassing on May 18
  • Nathan Entrekin (the guy from AZ who dressed like Captain Moroni): Arrested July 15, still charged on original affidavit

Some of these people — like Entrekin and Edwards — were probably arrested to get to video they took, including of what happened in Merkley’s office. Gionet, too, took video, but I would be shocked if he weren’t eventually charged with (at least) obstruction. There’s three buddies from Brooklyn (Lunyk, Ferrigno, and Connor) who realized they were in trouble when they showed up in pictures with Gionet.

Fellows is currently the only one of these people charged with a felony, obstruction.

But given that people with ties to the far right who were in Nancy Pelosi’s office stole a laptop and offered it to Russia, I do wonder whether someone also tried to share Merkley’s laptop with Russia.

That’s the kind of thing that might require classified information to charge.

Update: h/t Eureka for reminding me Rehl was pictured smoking in Merkley’s office.

Update (9/10): I neglected to include Felipe Marquez in this list. He just pled guilty. I’ve added him.

January 6: Focus on Jeff Merkley’s Office and Missing Laptop

Two days ago, I noted that discovery correspondence in the case of Long Island CPA Justin McAuliffe suggests he may know something about what happened to Jeff Merkley’s laptop, which was stolen during the riot. Merkley described the damage rioters had done to his office in this video.

In a letter describing the discovery provided to McAuliffe, DOJ included a picture of Merkley’s stolen laptop, among other items.

As I noted, McAuliffe has not been charged with theft or damage at all. He remains charged under his original complaint with just trespassing.

In the last two days, there have been several developments in the investigation of Merkley’s missing laptop.

First, on May 4, the government arrested a guy named Gary Edwards.

His arrest affidavit includes a picture of him in what the wall hangings, among other things, make clear is Merkley’s office.

Most pictures in his arrest affidavit (including this one) show Edwards using his phone. I have speculated in the past that DOJ is prioritizing the arrests of MAGA tourists — those otherwise charged with just misdemeanor trespassing — for evidence they may have on their cell phones, and Edwards may be such an example.

Also in the last few days, GWU made the April 30 arrest of Oliver Sarko public. His arrest affidavit describes that he entered Merkley’s office. The picture included shows that he was filming as he walked out.

Like Edwards, Sarko was arrested solely for trespassing, in another arrest that may serve to obtain key evidence about what happened in Merkley’s office.

More interesting still, the government moved to revoke the bail of Brandon Fellows. Fellows is the guy that McAuliffe’s arrest affidavit shows sitting next to McAuliffe at a table in Merkley’s office (Fellows is the guy with the fake beard; his own arrest affidavit includes a screen cap with Fellows at the table that doesn’t show McAuliffe).

Fellows’ arrest affidavit (unlike McAuliffe’s) notes that Merkley’s laptop was stolen, but it doesn’t charge him for the theft.

On January 6, 2021, a live stream video on the DLive platform was broadcasted to the public from user “Baked Alaska” and a portion was later posted on Twitter. In the video, several people were observed in an office that appeared to be within the Capitol. The video showed a person who appeared to be FELLOWS, sitting at a table with his feet propped up on a table, as shown in the still shot below. The chairs, table, drapes, and wall art appeared to be consistent with those in the office posted by Senator Merkley. The conference room in which FELLOWS is present appears to be Senate room S140, the private “hideaway” office of Senator Merkley within the U.S. Capitol. The artwork visible on the walls of the conference room in the video is also visible on a video that Senator Merkley posted to Twitter on January 6, 2021, at 11:36pm, documenting some of the damage to his office, as described above. At this time, there is no evidence that FELLOWS was involved in any of the theft, damage, or destruction – other than being a part of the group that occupied the office for some period of time.

According to the government’s motion to revoke bail, since the time Fellows has been out on bail, he has committed a range of small release violations, along with a more significant one: petty larceny.

The PSA’s May 5, 2021 report cites numerous violations to support the request to remove the defendant from their supervision. First, the report relayed two instances, on April 8, 2021, and May 1, 2021, in which the defendant failed to comply with his curfew 9:00 p.m. curfew. On both occasions, PSA had to contact the defendant, who gave excuses for his violations (Doc. 23 at 3-4). On the latter occasion, the defendant told the PSA officer that he had left a message that he was running late, however there was no record of such a message being left. (Id. At 5). Second, the report also alleges two violations of his failure to report to PSA as directed on April 9, and April 16, 2021 (Id. at 2). Third, the report indicates the defendant was given a ticket in New York for Petit Larceny (Misdemeanor), with an appearance date of May 12, 2021 (Id. at 3). As noted in the PSA report, defendant failed to report the arrest as required by his conditions of release. (Id.). After the defendant was arrested for the Petit Larceny he was issued an appearance ticket directing him to appear in Court for the offense. Similar to his initial arrest by the FBI in this matter, the defendant told the New York State police officer that he would meet the officer to be processed on March 8, 2021, but failed to show up. The defendant only turned himself in after the officer contacted him again on April 28th.

The larceny is just a misdemeanor. But Fellows’ arrest affidavit makes it clear the FBI thinks he might have stolen Merkley’s laptop (curiously, he’s one of the rare January 6 defendants for whom the government got a prospective location warrant, as well as a PRTT order to find out who he’d been talking with, though the former may have been because he was dicking around with self-reporting). And this motion to revoke bail suggests that while out on release under suspicion that he stole a laptop, he took something else, albeit far more minor.

Given that there are upwards of 300 people out on bail for charges related to January 6, I would imagine that Fellows is nowhere near the only one to have violated his release conditions (John Sullivan is the only one I can think of who was actually publicly reported for it).

But at a time when the government seems to be focusing closely on who stole Merkley’s laptop, they’ve decided it’s time to detain Fellows pending trial.

Update: After I posted this, GWU’s Seamus Hughes reminded me that Sarko’s arrest affidavit also included a reference to Merkley’s office. Thanks to him for the reminder.

Update: Because Judge Trevor McFadden held the hearing to consider bail revocation in person, the call-in line got bolloxed and as a result none of the press were able to hear McFadden’s reasons why he didn’t revoke Fellows’ bail, but he did not. He did, however, place him in home detention.

January 6: On the Track of the Missing Laptops

In recent days there have been developments in the investigation into two laptops stolen on January 6. First, a woman in Homer, Alaska claims the FBI seized her own devices, based off a suspicion that she is the woman who currently has Nancy Pelosi’s laptop.

Marilyn and Paul Hueper, owners of the Homer Inn and Spa, told Alaska’s News Source that agents broke through their door early Wednesday morning with guns drawn, handcuffed the couple and two guests, and started searching the premises.

“They basically took me out of the handcuffs and said something like, ‘So you probably know why we’re here.’ I was like, ‘no, probably not.’” Marilyn Hueper said Friday. “And they said, ‘well, we’re looking for Nancy Pelosi’s laptop and we know you were in the building and you were in the room at the time.’”

The FBI isn’t saying much about what they know about the search.

“I can confirm that, on April 28, the FBI was conducting court authorized law enforcement activity at the location you are referring to. At this time, and until it reaches the public realm, we can’t discuss the details,” Chloe Martin, Public Affairs Officer for the Alaska Field office of the FBI, told Alaska’s News Source via email Friday.

The Huepers’ name does not come up in a search of online court records for the U.S. District of Alaska.

The couple declined to provide a copy of the search warrant the FBI had, but said it permitted agents to search for items stolen from the Capitol.

Agents seized cell phones, laptops and a copy of the U.S. Declaration of Independence, the Huepers said.

“We never got within 100 yards of the main doors of the Capitol,” Paul Hueper said.

Her arguments that she’s not the person in the BOLO the FBI showed her are pretty convincing.

That said, she and her spouse claimed they were on the other side of the Mall on the day of the riot, even though they posted to Facebook from closer to the Capitol. I hope we learn how it’s possible that they have two GeoFences from the Capitol but could make a mistake like this.

Meanwhile, discovery correspondence filed yesterday in the case of Long Island CPA Justin McAuliffe suggests he may know something about what happened to Jeff Merkley’s laptop, which was also stolen during the riot.

Merkley did a video showing the damage done to his office after the insurrection, describing the laptop taken from his table and the broken hinges on the unlocked door.

And if you look closely in the arrest affidavit for McAuliffe, you can see the maps that appear in Merkley’s video, as well as the flag left behind.

But the discovery correspondence yesterday included a picture of the stolen laptop and the broken door among other items.

To be clear: McAuliffe has not been charged with theft or damage at all. He remains charged under his original complaint with just trespassing.

But rather than indicting him for any role in those crimes, the government continued his case until May 19, which either means he’s planning on pleading or the government believes that he (like Riley June Williams, who is accused of stealing Pelosi’s laptop) may know more about who took the laptop and what they did with it.

Or maybe the government is just waiting on DNA tests from that joint described in evidence picture, “joint.jpg,” before charging this case?