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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.

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

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

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

This post will pull together the evidence shown to date.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In response, someone replied,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

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

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

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

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

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

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

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

[snip]

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

[snip]

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

[snip]

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

[snip]

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

[snip]

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

[snip]

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

[snip]

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

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

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

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