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Judge Carl Nichols Upends DOJ’s January 6 Prosecution Strategy

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On Friday, I argued that both the January 6 Committee and TV lawyers wailing about DOJ’s slow pace of prosecution needed to look more closely at the litigation surrounding DOJ’s use of 18 USC 1512(c)(2) to prosecute January 6 defendants.

[U]ltimately all 22 judges are likely to weigh in on this obstruction application (and there are only two or three judges remaining who might conceivably rule differently than their colleagues), there are just a handful of judges who might face this obstruction application with Trump or a close associate like Roger Stone or Rudy Giuliani. Judge Mehta (by dint of presiding over the Oath Keeper cases) or Judge Kelly (by dint of ruling over the most important Proud Boy cases) might see charges against Roger Stone, Rudy Giuliani, or Alex Jones. Chief Judge Howell might take a higher profile case herself. Or she might give it to either Mehta (who is already presiding over closely related cases, including the January 6 lawsuits of Trump) or one of the two judges who has dealt with issues of Presidential accountability, either former OLC head Moss or Carl Nichols. Notably, Judge Nichols, who might also get related cases based on presiding over the Steve Bannon case, has not yet (as far as I’m aware) issued a ruling upholding 1512(c)(2); I imagine he would uphold it, but don’t know how his opinion might differ from his colleagues.

The application of 18 USC 1512(c)(2) to January 6 is not, as the TV lawyers only now discovering it, an abstract concept. It is something that has been heavily litigated already. There are eight substantive opinions out there, with some nuances between them. The universe of judges who might preside over a Trump case is likewise finite and with the notable exception of Judge Nichols, the two groups largely overlap.

So if TV lawyers with time on their hands want to understand how obstruction would apply to Trump, it’d do well — and it is long overdue — to look at what the judges have actually said and how those opinions differ from the theory of liability being thrown around on TV.

Judge Carl Nichols — the Trump-appointed judge presiding over the Steve Bannon case and as such one of the most likely judges to preside over any Trump prosecution — will undoubtedly finally generate needed attention to what judges are doing.

That’s because he just rejected DOJ’s application in the case of Garret Miller. In places, the decision is reasonable; in others, it is far too clever. Nichols acknowledges only the Randolph Moss opinion in on this topic, thereby ignoring some language addressing issues he raises in his opinion.

Nichols disagrees with Miller’s contention that the vote certification was not an official proceeding.

[I]t makes little if any sense, in the context here, to read “a proceeding before Congress” as invoking only the judicial sense of the word “proceeding.” After all, the only proceedings of even a quasijudicial nature before Congress are impeachment proceedings, and Miller has offered no reason to think Congress intended such a narrow definition here.

But he argued that the word “otherwise” in the statute necessarily connects the charged clause to the one prior to it, and should be read as a limitation of it. From that, he reads the statute to pertain only to evidence tampering, not witness tampering.

He then cites Justice Kavanaugh to argue that under the rule of lenity, such ambiguity here must be judged in favor of the defendant.

“Under the rule of lenity, courts construe penal laws strictly and resolve ambiguities in favor of the defendant,” id., so long as doing so would not “conflict with the implied or expressed intent of Congress,” Liparota v. United States, 471 U.S. 419, 427 (1985). Under current doctrine, the rule of lenity applies to instances of “grievous” ambiguity, see Shular v. United States, 140 S. Ct. 779, 788 (2020) (Kavanaugh, J., concurring) (collecting citations), a construction that is arguably in tension with the rule’s historical origins, see 1 William Blackstone, Commentaries *88 (“Penal statutes must be construed strictly.”). See also Wooden v. United States, ___ U.S. ___, ___ (2022) (Gorsuch, J., concurring in judgment) (slip op. at 9–12); but see id. (Kavanaugh, J., concurring) (slip op. at 1–4).

Via a variety of means, Nichols judges that 1512(c)(2) must relate to the destruction of evidence, which Miller is not accused of doing.

The Court therefore concludes that § 1512(c)(2) must be interpreted as limited by subsection (c)(1), and thus requires that the defendant have taken some action with respect to a document, record, or other object in order to corruptly obstruct, impede or influence an official proceeding.

This argument has holes in it–holes that were addressed by some of the opinions he ignores.

Nichols simply dismisses the argument that Congress could have provided the kind of limiting language he thinks should be inferred.

Another court has sought to allay this overlap concern by pointing to the language Congress could have used:

[I]t would have been easy for Congress to craft language to achieve the goal that Defendants now hypothesize. Congress, for example, could have substituted Section 1512(c)(2) with the following: “engages in conduct that otherwise impairs the integrity or availability of evidence or testimony for use in an official proceeding.” The fact that Congress, instead, enacted language that more generally—and without the limitations that Defendants now ask the Court to adopt—criminalized efforts corruptly to obstruct official proceedings speaks volume.

Montgomery, 2021 WL 6134591, at *12. That is certainly true, and in fact is why the Court does not believe that there is a single obvious interpretation of the statute. But it is also the case that reading § 1512(c)(1) as limiting the scope of § 1512(c)(2) avoids many of these structural or contextual issues altogether

He also ignores some differences between clause c and other clauses of 1512, arguments made and dismissed by some of the opinions he ignores.

At a minimum, conduct made unlawful by at least eleven subsections— §§ 1512(a)(1)(A), 1512(a)(1)(B), 1512(a)(2)(A), 1512(a)(2)(B)(i), 1512(a)(2)(B)(iii),1512(a)(2)(B)(iv), 1512(b)(1), 1512(b)(2)(A), 1512(b)(2)(C), 1512(b)(2)(D), and 1512(d)(1)— would also run afoul of § 1512(c)(2).

He also makes a comparison between clause b and c, ignoring that c(2) — and the behavior Miller is accused of — is equivalent to b(2)(D).

DOJ will have a ready response to this on appeal. They may count themselves lucky that this particular opinion is not a particularly strong argument against their application. Nichols basically argues that intimidating Congress by assaulting the building is not obstruction of what he concedes is an official proceeding.

But this will cause a number of prosecutions, including of some defendants who were about to provide key cooperation, to grind to a halt until this is appealed.

Update: In other news, Guy Reffitt was just found guilty on all five charges against him. That includes the obstruction charge. So the DC Circuit will soon be getting two appeals of the obstruction application.

Update, 4/1/22: DOJ asked Nichols to reconsider, making two legal and one common sense arguments:

  • You can’t really argue there’s some grievous uncertainty implicating the rule of lenity if 13 of your colleagues don’t see it.
  • Your ruling that 1512(c)(2) requires document destruction is an evidentiary question, not a motion to dismiss one, and if we have to we’ll argue that Miller’s actions posed a risk to the actual ballots.
  • Your logic would suggest that, per the Reffitt scenario, attempting to drag lawmakers out of Congress to prevent them from certifying the vote would not be obstruction.

Other opinions upholding obstruction application:

  1. Dabney Friedrich, December 10, 2021, Sandlin*
  2. Amit Mehta, December 20, 2021, Caldwell*
  3. James Boasberg, December 21, 2021, Mostofsky
  4. Tim Kelly, December 28, 2021, Nordean; May 9, 2022, Hughes (by minute order), rejecting Miller
  5. Randolph Moss, December 28, 2021, Montgomery
  6. Beryl Howell, January 21, 2022, DeCarlo
  7. John Bates, February 1, 2022, McHugh; May 2, 2022 [on reconsideration]
  8. Colleen Kollar-Kotelly, February 9, 2022, Grider
  9. Richard Leon (by minute order), February 24, 2022, Costianes
  10. Christopher Cooper, February 25, 2022, Robertson
  11. Rudolph Contreras, announced March 8, released March 14, Andries
  12. Paul Friedman, March 19, Puma
  13. Thomas Hogan, March 30, Sargent (opinion forthcoming)
  14. Trevor McFadden, May 6, Hale-Cusanelli

Networks of Insurrection: “Trump is literally calling people to DC in a show of force”

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This will be another of those posts where I catalog a few of the developments in the January 6 investigation that show how — Jocelyn Ballantine’s involvement notwithstanding — the many parts of the investigation are crystalizing around associations between rioters.

Michael Rusyn witnesses the initial East door break

First, in my continuing focus on the statements that DOJ obtains from those pleading guilty to trespassing charges, I’d like to look at the statement of offense from Michael Rusyn, who pled guilty Monday.

Rusyn was first IDed to FBI the day after the riot, interviewed by the FBI on February 17, and then arrested back in April, probably because he showed up in two key locations, obviously recording what happened on his phone. But after they arrested him and started pulling surveillance footage and exploiting his cell phone, they realized he was always accompanied by the same woman, about whom they had gotten a separate tip on January 7.

At least per Deborah Lee’s arrest affidavit, that’s how the FBI determined that Rusyn was the “Michael Joseph” she had tagged in her own Facebook posts from the riot, and that — as described in his statement of offense — he had lied when he told the FBI he didn’t know anyone on the bus he took to the riot.

On February 17, 2021, the defendant was interviewed by a Task Force Officer and an FBI Special Agent. During that interview, the defendant said the he traveled to Washington, D.C. by boarding a bus in Jessup, Pennsylvania at approximately 5:00 a.m., and that he did not personally know anyone on the bus. This was untrue: the defendant and Deborah Lynn Lee rode to Washington, D.C. together on the same bus. And, indeed, the defendant’s phone contained numerous photographs and video fo Lee outside the Capitol building, which it appeared had been recorded by the defendant, as well as numerous text messages between the defendant and Lee.

The rest of his statement of offense liberally implicates Lee in his actions, including by noting that she entered via the East doors first, and then reached out her hand and pulled him into the building (which also contradicts his initial claims).

At approximately 2:27 p.m., Deborah Lynn Lee entered the Capitol building through the breached door. She turned back across the threshold and extended her hand to the defendant, who took her hand and pulled himself through the crowd, across the threshold and into the Capitol. The two were among the first thirty to forty people to enter the Capitol after the breach of this door.

DOJ could have wired Rusyn’s plea, requiring that he wait until Lee pled guilty before they’d let him plea. Instead, though, they’ve acquired evidence against someone who made false claims about Antifa in the days after the riot.

Lee is also one of the John Pierce clients who has decided to stick with him — and so, presumably, with her false claims — after his bout with COVID.

In addition to making it much harder for his friend to sustain her lies about Antifa, though, Rusyn also provided witness testimony describing how the East doors got broken.

By approximately 2:10 p.m., the defendant stood on the East Side of the Capitol building, near the eastern, double doors at the top of the Capitol steps, leading to the rotunda. He was in a crowd of people, close enough to the crowd to see the front of the doors. A video that the defendant uploaded to Facebook at 2:10 p.m, and a photo that the defendant uploaded to Facebook at 2:16 p.m.,, capture these doors, including the windowpanes that would–shortly thereafter–be smashed in by members of the crowd.

Beginning at approximately 2:20 p.m., and continuing through at least approximately 2:24 p.m., members of the crowd began smashing several of the windowpanes of these doors. At approximately 2:25 p.m., another rioter opened one of the double doors from the inside; thereafter, that person and several other rioters opened this door widely enough to allow members of the crowd to breach the door and enter the Capitol.

This is straight witness testimony and validation of Rusyn’s own video, but it also debunks claims that a bunch of other rioters have tried to make in their own defense.

Rusyn’s statement of offense includes similar language describing the mob that tried to push their way into the House shortly thereafter.

Rusyn was allowed to plead to the less serious of the two trespassing charges. But his testimony and validated video will be quite useful for prosecutors to go after more serious defendants, including the details of how rioters opened a second front at the East doors.

Gary Wilson makes Brady Knowlton’s obstruction more obvious

In a similar case where DOJ arrested someone’s co-rioter months later, the government arrested a guy from Salt Lake City named Gary Wilson. Wilson is the guy who showed up in the photos used to arrest Brady Knowlton on April 7, who himself was arrested long after his buddy Patrick Montgomery was arrested on January 17.

The FBI used Wilson’s arrest warrant as an opportunity to fill in the details behind the earlier indictment of Montgomery and Knowlton, which added an assault charge against Montgomery and obstruction charges against both.

For example, it shows an exchange captured in Daniel Hodges’ Body Worn Camera just before Montgomery allegedly assaulted Hodges, as described in Wilson’s arrest affidavit.

At around 2:00 p.m. co-defendant Brady Knowlton confronted MPD officers who were making their way through the crowd and yelled at them saying, “You took an oath! You took an oath!” and “Are you our brothers?” Co-defendant Patrick Montgomery came up from behind Knowlton and said something to the officers, but it was hard to tell what he said. Officer Hodges then moved forward a few steps through the crowd. Wilson can be seen on Hodges’ video standing in the crowd (see screenshot above)—not far from where Montgomery and Knowlton were standing. In fact, Officer Hodges and Wilson collided as Officer Hodges tried to make his way through the crowd.

At approximately 2:02 p.m., Montgomery assaulted MPD Officer Hodges. An FBI special agent interviewed Officer Hodges on February 24, 2021. Officer Hodges told the FBI agent that at about 2:00 p.m. on January 6, 2021, he was making his way toward the west side of the Capitol to assist other officers. He was part of a platoon of about 35-40 officers. Officer Hodges said that right before 2:02 p.m., a very agitated crowd cut-off the platoon’s progress and split the group of 35-40 officers into smaller groups. Officer Hodges and a small group of officers ended up encircled by the crowd and the crowd was yelling at them “remember your oaths.”

Officer Hodges said that he was at the front of the group and attempted to make a hole through the crowd for himself and the other officers to continue their movement toward the Capitol. He yelled “make way” to the crowd. While trying to get through the crowd, he looked back to see other officers being assaulted by members of the crowd, which was yelling “push” while making contact with the officers. Hodges immediately turned back and started pulling assaulting members of the crowd off the other officers by grabbing their jackets or backpacks. After pulling a few people away from the officers, a man—later identified as Patrick Montgomery—came at Officer Hodges from his side and grabbed Officers Hodges’ baton and tried to pull it away from him. Officer Hodges immediately started to fight back and the two of them went to the ground, at which time Montgomery kicked Officer Hodges in the chest.

As Officer Hodges went down to the ground, his medical mask covered his eyes, which temporarily blinded him. He was laying on the ground, could not see, and was fighting to retain his weapon while surrounded by a violent and angry crowd. In that moment, he was afraid because he was in a defenseless position because of the assault. He was able to break Montgomery’s grip on the baton and get free.

The Wilson affidavit then shows how the three of them then entered the Capitol through the Upper West Terrace door, went to the Rotunda, witnessed Nate DeGrave and Ronnie Sandlin allegedly assaulting officers outside the Senate, then entered the Senate Gallery, all movements described in earlier filings but now documented with pictures.

From there, the threesome entered another hallway and had another confrontation with some MPD officers. Here again, the Wilson affidavit provides more detail (and a picture) of a confrontation explained in sketchy form in earlier filings.

Knowlton: “All you gotta do is step aside. You’re not getting in trouble. Stand down. For the love of your country.”

Unidentified rioter: “What happens if we push? Do you back up? We’re not gonna push hard.”

Knowlton: “This is happening. Our vote doesn’t matter, so we came here for change.”

Unidentified rioter: “We want our country back. You guys should be out arresting the Vice President right now.”

Wilson: “We came all the way from our jobs to do your job and the freaking senators’ job.”

The three men had one more confrontation with officers before they left the building around 2:54.

All this is important because, even aside from the possibility that these additional conflicts expose Montgomery and Knowlton to additional civil disorder or resisting charges, it all makes Knowlton’s obstruction much easier to show.

And that’s important because, as of right now, Knowlton is mounting the most mature (and best funded) challenge to the way DOJ has used obstruction charges against January 6 defendants. In a hearing overseeing that challenge, Judge Randolph Moss expressed concern (as Judge Amit Mehta similarly did in an Oath Keeper challenge of the application) of limiting principles, what distinguishes the actions of those charged with obstruction for January 6 from protestors complaining about the nomination of Brett Kavanaugh to the Supreme Court. This arrest affidavit doesn’t change the legal issues, but it does make it a lot easier to see that Brady Knowlton was no mere protestor.

There’s probably more that will come with this arrest — at the very least an opportunity to supersede Montgomery and Knowlton to add Wilson.

But we also may learn whether there’s a tie between these three guys (there’s a fourth who posed with Montgomery and Knowlton outside the Capitol, but he’s not known to have entered the Capitol) and two other Utahns who entered the Senate Gallery at almost the exact same time as these three, Janet Buhler (pictured just behind Knowlton and Wilson) and her step-son Michael Hardin.

After all, we’re still waiting to learn the identities of the Utahns that John Sullivan’s brother, James, discussed with Rudy Giuliani shortly after the riot. These four people (just four are Utahns — Montgomery lives in Colorado) are among just eight Utahns charged to date, and they all made it to the Senate Gallery at roughly the same time.

“It’s the only time hes ever specifically asked for people to show up”

The last recent arrest involving networks of people who rioted together charged Marshall Neefe and Brad Smith with conspiracy to obstruct the vote, assault, civil disorder, and the trespassing while armed that can carry a stiff sentence. Their charges under 18 USC 1512(k) marks at least the third time January 6 defendants were charged with conspiracy under that clause (as opposed to 18 USC 371, like most militias), with the two others being Eric “Zip Tie Guy” Munchel and his mom, and the SoCal 3%er conspiracy.

If DOJ’s application of obstruction to the vote count survives judicial review, charging a conspiracy under 1512(k) offers several things that 371 doesn’t offer: notably, very steep sentencing enhancements for threats of violence.

And these men did threaten violence. As early as December 22, Neefe talked of “wanna crack some commie skulls.” That day, too, Smith described getting axe handles to which he’d nail an American flag “so we can wave the flag but also have a giant beating stick just in case.” Like most of the 3%ers, Smith didn’t enter the Capitol, and for the same reason: because he believed entering the Capitol while armed would risk arrest. “I was the people crawling up the side of the building. I wasn’t going to jail with my KA BAR,” which he had described as his “Military killin knife” when he got it in December.

It’s tempting to think this conspiracy, like that of Munchel and his mom, is mostly tactical, a way to implicate both in the acts of one.

But there are references to efforts to “encourage[] others to join him and NEED to travel to Washington,” so it’s possible we’ll see later arrests similar to those of people networked with the 3%ers (for example, the Telegram Chat that Russell Taylor started is mentioned in the arrest affidavits for Ben Martin and Jeffrey Brown).

More interesting still is that this conspiracy might work like the (still-uncharged) one promised against Nate DeGrave and Ronnie Sandlin, two random guys who took action in direct response to Trump’s directions.

Charging this as a conspiracy focuses on the lead-up to the riot. It shows how these men started planning for war on November 4, “Why shouldnt [sic] we be the ones to kick it off?” It describes how they responded to Trump’s calls for attendance.

The call to action was put out to be in DC on January 6th from the Don himself. The reason is that’s the day pence counts them up and if the entire city is full of trump supporters it will stop the for sure riots from burning down the city at least for a while.

It emphasizes the import these men ascribed to Trump’s calls for attendance.

SMITH wrote another Facebook user on December 22, 2020, “Hey man if you wanna go down to DC on the 6th Trump is asking everyone to go. That’s the day Pence counts up the votes and they need supporters to fill the streets so when they refuse to back down the city doesnt [sic] burn right away. It’s the only time hes [sic] ever specifically asked for people to show up. He didn’t say that’s why but it’s obviously why.”

It shows how, in advance of the riot, both men came to understand that they might join militias in storming the Capitol.

On December 31, 2020, SMITH continued to message other Facebook users, encouraging them to go to Washington, D.C., on January 6, 2021. For example, he told one user, “Take off the 6th man! It’s the Big one!!! Trump is literally calling people to DC in a show of force. Militias will be there and if there’s enough people they may fucking storm the buildings and take out the trash right there.”

That same day — the same day Smith got his military knife — Smith talked with Neefe about how easy storming the Capitol would be.

“I cant wait for DC! Apparently it’s going to be WAY bigger lol. If it’s big enough we should all just storm the buildings. . . . Seriously. I was talking to my Dad about how easy that would be with enough people.”

By January 5, that turned into Smith’s call to “Sacrifice the Senate!!!!”

All that’s important background to Smith narrating their arrival by describing their actions as, “literally storming the Capitol.” Shortly thereafter, Neefe was involved in using a Trump sign as a battering ram against MPD officers. This may be the assault currently charged against Jose Padilla and others.

Even in retrospect, these conspirators spoke in terms that tie Trump’s actions to their own violence and threats of violence, bragging about responding to Pence’s refusal to fulfill Trump’s illegal demands by literally chasing members of Congress out of their chambers.

From January 6-7, SMITH posted, “Got Gassed so many times, shit is spicy but the Adrenaline high and wanting to ‘Get’ Pelosi and those fucks, it was bearable.” He also admitted, “Oh yeah. The time will come for some of them. But today’s mission was successful! Remember how they said today was the final day & that Biden would be certified? Well we literally chased them out into hiding. No certification lol [. . .]. Pence cucked like we knew he would but it was an Unbelievable show of force and it did its job.”

As far as we can tell, Marshall Neefe and Brad Smith are just bit players in this story, two guys who went to the Capitol and joined in the violence.

But that’s what makes them so useful, for showing how two bit players, believing they were taking orders directly from the President, armed themselves and helped implement a deliberate attempt to “literally chase[]” Congress away from the task of certifying the vote.

19 Minutes: The Tuberville Call and DOJ’s Use of Obstruction in January 6 Prosecutions

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Nine minutes after President Trump called Tommy Tuberville at 2:26PM on January 6 to ask him to raise more objections in an effort to delay the vote count, riot defendant Brady Knowlton entered the Capitol in what DOJ alleges was an intentional effort to delay the vote count.

Nineteen minutes after Trump placed that call, at 2:45PM, Knowlton entered the Senate Gallery, maybe fifteen minutes after Tuberville had told the President he had to hang up because the Senators were being evacuated because people like Knowlton were invading the Capitol.

A number of people have pointed me to this article on Tuesday’s hearing before Judge Randolph Moss in Knowlton’s challenge to DOJ’s use of 1512(c)(2) to charge those who, DOJ alleges, came to the insurrection with the intention of delaying or stopping the certification of the votes. Here’s my live thread of the hearing and my own post on it; I’ve linked some of my other posts on the application of obstruction below.

The article is a good summary of the legal questions around the application. But in my opinion, its emphasis does not adequately convey what went on at the hearing. For example, the headline and first three paragraphs emphasize Judge Moss’ concerns about constitutional vagueness, which Moss didn’t focus on until an hour into the hearing.

Lead felony charge against Jan. 6 defendants could be unconstitutionally vague, U.S. judge warns

A federal judge has warned that the lead felony charge leveled by the government against Capitol riot defendants could be unconstitutionally vague, potentially putting convictions at risk of being overturned on appeal.

U.S. District Judge Randolph D. Moss identified the latest hurdle for federal prosecutors investigating January’s attack on Congress during a two-hour hearing this week over whether to dismiss the “obstruction of an official proceeding” charge from a 10-count indictment against two men from Colorado and Utah.

Moss’s remarks highlight the challenge prosecutors have faced in defining the most severe criminal conduct allegedly committed on Jan. 6. Prosecutors have employed the obstruction charge rather than sedition or insurrection counts in accusing at least 235 defendants of corruptly disrupting Congress’s certification of the 2020 electoral-college vote.

It doesn’t mention how Moss started the hearing — by expressing skepticism about Knowlton’s argument — until the last line of the fourth paragraph.

Attorneys for Brady Knowlton and Patrick Montgomery claimed that specific offense did not apply to them, arguing that the joint House and Senate session that met Jan. 6 does not qualify as an official proceeding of Congress. Moss made clear he was not persuaded by that claim at this point. [my emphasis]

At least before Moss, then, this challenge faces an uphill climb (some of the other challenges to this application of obstruction make a slightly different legal argument that may have more promise of success). And while the WaPo piece notes that Moss asked for additional briefing from both sides, it doesn’t note what I consider a fairly major strategic error from Knowlton’s team: choosing to define an “official proceeding” as one in which the ultimate decision of the proceeding is an adjudication that has real import to the life and liberty of those involved.

In effect, Knowlton lawyer Brent Mayr claimed that Joe Biden (and the 81 million Americans who voted for him) would have suffered no harm if Congress had been so intimidated by the people roaming the hallways threatening their assassination that they certified Donald Trump as the victor of the 2020 election instead of Biden, or if the insurrectionists managed to cause lasting unrest that delayed the certification indefinitely, giving Trump a chance to attempt another desperate ploy to remain in power.

By making that argument, Mayr provided DOJ the opportunity to lay out — in the additional briefing Moss ordered — the real adjudication that took place on January 6 and the import to justice and rule of law that the adjudication had, something DOJ has done, albeit in less focused fashion, in other filings in this investigation. Mayr gave DOJ an opportunity to explain that there was a very real risk that the lawfully elected President of the United States would not have his victory officially recognized, which was precisely the goal, DOJ would argue, that Brady Knowlton sought.

Mayr gave DOJ that opportunity even amid heightened coverage of how real the threat of a travesty of justice was.

The reporting on Jeffrey Rosen’s testimony about Jeffrey Bossert Clark’s attempt to force DOJ to endorse Trump’s Big Lie makes it clear how corrupt all this was (showing corrupt intent is key to proving Knowlton or anyone else guilty of the obstruction charge).

Filling in just one more detail will tie together Trump’s efforts to recruit DOJ in telling his Big Lie and Brady Knowlton’s response to that Big Lie of flying to DC, invading the Capitol, and heading to the place where the vote was supposed to be counted.

[B]ody-worn camera footage from the Metropolitan Police Department [] shows Knowlton and [Knowlton’s co-defendant Patrick] Montgomery outside the Capitol at around 2:00 p.m.  In the video, Knowlton confronts officers who are making their way through the crowed and yells at them saying, “You took an oath! You took an oath!” and pointedly asking them, “Are you our brothers?” Montgomery is standing right behind Knowlton. The government also located another body-worn camera video of both defendants after they left the Senate Gallery, confronting officers inside the Capitol in a hallway near Senate Majority Leader Schumer’s office. In the video, both Knowlton and Montgomery direct officers to move out of the way. Knowlton tells the officers, “We don’t wanna push through there. We do not wanna push through there.” Knowlton also tells the officers, “This is happening. Our vote doesn’t matter, so we came here for change.”

That detail is that Donald Trump made an effort to ensure the Senators would still be there when Knowlton and others arrived.

“How’s it going, Tommy?” the president asked.

Taken a little aback, Lee said this isn’t Tommy.

“Well, who is this? Trump asked. “It’s Mike Lee,” the senator replied. “Oh, hi Mike. I called Tommy.”

Lee told the Deseret News he realized Trump was trying to call Sen. Tommy Tuberville, the newly elected Republican from Alabama and former Auburn University football coach. Lee walked his phone over to Tuberville who was talking to some colleagues.

“Hey, Tommy, I hate to interrupt but the president wants to speak with you,” Lee said.

Tuberville and Trump talked for about five to 10 minutes, Lee said, adding that he stood nearby because he didn’t want to lose his cellphone in the commotion. The two were still talking when panicked police ordered the Capitol to be evacuated because people had breached security.

As police were getting anxious for senators to leave, Lee walked over to retrieve his phone.

“I don’t want to interrupt your call with the president, but we’re being evacuated and I need my phone,” he said.

Tuberville said, “OK, Mr. President. I gotta go.”

To be clear: there’s no evidence that Knowlton had direct ties to Trump (though Knowlton is one of just seven defendants thus far from Utah, and a week after the riot, Rudy Giuliani appears to have been in contact with James Sullivan, the brother of defendant John Sullivan, who told Rudy he had gotten his “agent” and three others from Utah out of trouble). There’s even less evidence that, at the moment Knowlton crossed the threshold of the Capitol, he knew Trump had just tried to convince Tuberville to delay long enough for Knowlton to arrive in the Senate.

This is not yet a conspiracy that ties the President’s actions to obstruct the vote count with Brady Knowlton’s alleged actions to achieve the same goal.

But even as Brady Knowlton’s lawyers have argued that an official proceeding is one in which the parties can suffer dire consequences if rulings don’t go in their favor, more evidence is coming out about how Knowlton’s actions fit into a larger, undeniably corrupt scheme to deprive Joe Biden (and Kamala Harris, who was present and participating on that day) of their electoral win.

If that’s the standard, then Knowlton’s lawyers have made a compelling argument against his case.

The WaPo’s not wrong about the seriousness of this larger challenge. And whether or not this argument succeeds, it’s still not clear that DOJ will be able to prove that Knowlton had the requisite corrupt intent to delay the vote.

But Knowlton’s argument may be overtaken by the new evidence proving just how corrupt this effort was.

Posts on obstruction

July 17, 2021: General thoughts on the application of obstruction in advance of the Paul Hodgkins’ sentencing

June 4, 2021: How Ethan Nordean’s challenge to the application of obstruction degrades the challenge

June 14, 2021: How the III Percenter conspiracy indictment might use the threats of violence enhancement from the obstruction statute

July 31, 2021: How DOJ blew an opportunity to explain the difference between the Brett Kavanaugh protests and the January 6 rioters

July 27, 2021: How Donald Trump might be charged with obstruction

August 3, 2021: Brady Knowlton’s lawyer falsely claimed his client’s alleged obstruction posed no harm of injustice

August 4, 2021: Trump’s Big Lie demonstrates the threat of harm from insurrectionists’ obstruction

List of all obstruction challenges

 

Brady Knowlton’s Lawyer Suggests There Were No Victims on January 6

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“We don’t wanna push through there. We do not wanna push through there.” Knowlton also tells the officers, “This is happening. Our vote doesn’t matter, so we came here for change.”

Judge Randolph Moss just held a very thorough hearing for one of the first challenges to DOJ’s use of obstruction to charge felonies against January 6 defendants, which I live-tweeted here. Knowlton’s lawyer Ronald Sullivan started by making the argument in their brief — which is that the January 6 vote count doesn’t count as an official proceeding the obstruction of which would be a felony and even if it does, Knowlton had no way of knowing that it did. James Pearce, arguing for the government, laid out why the vote count is an official proceeding and would even qualify under the more circumscribed definition Knowlton adopted.

Along the way, Judge Moss asked a lot of questions that make it clear he understands how complex this question is — and even the possible unintended consequences. He wanted to know what distinguishes events on January 6 from protestors who interrupt a Congressional hearing. He wants a sober answer to the question, what distinguishes January 6 rioters from protests against Brett Kavanaugh (which DOJ bolloxed last week). Moss even suggested that, procedurally, the government should attempt to get the inevitable Supreme Court review before it creates double jeopardy problems with charging the most serious defendants with something like insurrection or seditious conspiracy.

For well over an hour, this was the hearing I’ve been expecting since DOJ first rolled out this unprecedented use of the obstruction statute months ago. This is a hard question, and I’m not sure DOJ has made its case.

And then Knowlton attorney Brent Mayr stood up to rebut. Eventually, he got around to arguing — in a challenge that says his client, who apparently is studying law, could not understand that interrupting the vote count would be felony obstruction — that they shouldn’t use the lay definition of “official proceeding,” but instead use a narrower legal one that treats only judicial proceedings as official proceedings. That is, he argues Knowlton couldn’t know this was a crime, even while insisting that’s true by applying a non-obvious legal definition he wants to use for what Knowlton did.

Crazier still, Mayr tried to distinguish the kinds of proceedings one can obstruct and those one cannot based on whether people risk harm based on the outcome. He explained that the hearing before Moss was obviously an official proceeding because Knowlton and co-defendant Patrick Montgomery’s liberty was at stake.

Mayr: Not abt formality. Not abt seriousness. What it’s about is consequence of proceeding. This makes it clear easy way to understand. At very core, it affects these two gentlemen we see on screen.

Effectively, Mayr argued that there were no victims on January 6 — that had the attempt to obstruct the vote count on January 6 succeeded, there would be no victim, or even that there were no victims from what happened on January 6.

An insurrectionist’s lawyer claimed there were no victims on January 6 nor could be were the attempt to prevent the certification of the 2020 Presidential election successful.

He doesn’t think that Joe Biden, the lawful winner of the 2020 Presidential election, would be harmed if he was not certified the winner after winning the Presidential election.

He doesn’t think that Kamala Harris, who was present that day, would be victimized if she never got sworn in as Vice President.

He doesn’t think that Biden’s 81 million voters would suffer any harm if their votes were nullified.

Crazier still, Mayr doesn’t think anyone was victimized by what happened that day, by the people swarming the hallways threatening to assassinate Mike Pence and Nancy Pelosi while people hid under tables. Mayr doesn’t think the four cops who have taken their own lives were victims of the events of January 6.

He doesn’t think that his client, who wanted his candidate to remain in power even after losing an election, and “came here for change,” victimized the 81 million voters who voted for the successful candidate.

DOJ has, in my opinion, not done enough to explain how the intimidation inherent to the entire event proves its corrupt intent. Whether Congress counted as the jury or the witnesses here — or both — not only were they intimidated, not only were they all chased away under threat of physical harm, but that intimidation worked so well that some number of Republicans voted against impeachment out of fear arising out of the events of January 6. These people took our democracy hostage for several hours on January 6, and Brent Mayer believes there were no victims as a result.

As it happens, though, Judge Moss has already spoken about the lasting harm of this event. In the Paul Hodgkins sentencing, Moss described how both Americans and people around the world can no longer be sure of the peaceful transfer of power. That harms all Americans, and the notion of democracy itself.

And Brady Knowlton’s lawyer doesn’t think that’s a real harm.

Update: Fixed the spelling of Pearce’s name.

On the Upcoming Sentencing for the First January 6 Felony Defendant, Paul Hodgkins

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On Monday, Paul Hodgkins will become the first felony defendant to be sentenced for his role in the January 6 riot.

Before I explain what the parties have said about that sentencing, some background is in order. The government has used obstruction, 18 USC §1512(c)(2), to charge virtually every January 6 defendant who in one way or another (often on social media before and after the riot), expressed the intent to prevent the certification of the vote, as distinct from simply wandering into the Capitol to express some support for Trump. Such an approach has a lot of upsides: it (thus far) avoids the inflammatory step of charging defendants with seditious conspiracy or insurrection (though that remains a possibility, particularly for militia defendants), while accessing the same kind of steep sentences for the most serious defendants. Because of sentencing enhancements built into obstruction, including “substantial interference,” “extensive scope or planning,” and “threatening injury or violence,” using it allows DOJ to make clear distinctions even among the defendants found guilty of obstruction. Just as an example, while Hodgkins’ sentencing range treated his occupation of the Senate Chamber as substantial interference (which resulted in a sentencing range of 15-21 months), he did not get dinged with enhancements that Graydon Young did for all his pre-planning, the Oath Keepers’ threats of violence, and Young’s attempt to destroy his Facebook account (which resulted in a sentencing range, for obstruction and conspiracy, of 63-78 months).

That said, it is an unprecedented application of the obstruction statute (of course, the January 6 insurrection was an unprecedented event). And a number of defendants have active, non-frivolous challenges to that application, some of which I explained here. Hodgkins pled guilty before all that litigation plays out, giving DOJ a significant first endorsement of this charging approach (which may be why Deputy Attorney General Lisa Monaco sat in on Hodgkins’ guilty plea).

But Monday will be overdetermined because Hodgkins’ sentence, whatever it is, will be taken as setting some kind of standard that over a hundred defendants may be able to point to when it comes to their own sentencing (if DOJ’s application of 1512 is upheld through what is sure to be a number of decisions and appeals). Just as three hypotheticals, Judge Randolph Moss might explain that he finds Hodgkins’ behavior to be a grave threat to democracy and say that with any other similarly situated defendant, he would sentence him to the maximum sentence in his guideline, 21 months, but because Hodgkins went first, Moss will give him a significant downward variance; that would allow him and all other DC judges to sentence hold-outs more severely than Hodgkins. Alternately, Moss might decide that the “significant interference” enhancement shouldn’t apply to Hodgkins and on that basis sentence Hodgkins using a lower guideline (it would give Hodgkins a sentencing range of 8 to 14 months), a judgment that would likely be invoked by a wide range of similar defendants and so would be more binding to other judges and Moss himself in the future. Finally, Moss might rule that what Hodgkins did is barely distinguishable from what he is seeing in some of the trespass cases before him, and so sentence Hodgkins to what would be the max range for one of those trespass charges, six months; such a decision might or might not extend to other obstruction defendants based on factors like whether they told the truth about their actions. Again, those are all just hypotheticals intended to illustrate that why Moss sentences Hodgkins to a particular sentence will be as important going forward as what he sentences him to.

The possibility that Moss might be thinking about what distinguishes Hodgkins from misdemeanor trespass defendants or other defendants charged with obstruction would not be surprising. Because all DC judges have a bunch of January 6 cases, they often express a comparative understanding of them in hearings. So, as Moss prepares to sentence Hodgkins, he might be comparing Hodgkins’ conduct with what has been charged against other defendants over whose cases he is presiding. Moss has a wide range of defendants before him (the Klein brothers, who have ties to the Proud Boys, are his only militia defendants), but the most useful comparisons with other defendants charged with obstruction include:

  • Brady Knowlton and Patrick Montgomery, who were also in the Senate Chamber and who are among the defendants challenging the application of 1512; Montgomery was charged with resisting a police officer after having claimed on Facebook not to have stormed the Capitol violently
  • Bruno Cua, who was charged with assault and civil disorder on top of obstruction and sat in Pence’s chair in the Senate Chamber even as others there told him not to
  • Ryan Suleski, who is also charged with stealing some papers from a member of Congress, who hinted at more to come in an interview after the riot, and who may not have been entirely forthright when interviewed by the FBI
  • Melody Steele-Smith, who boasted of entering Nancy Pelosi’s office and storming the Capitol on Facebook before she deleted those posts

In other words, Judge Moss’ sentencing decision may be as influenced by what he thinks of Knowlton’s similar conduct and fully-briefed challenge to 1512 as it will be by the memoranda before him. It may be influenced by a belief that Hodgkins didn’t do what other defendants did — including misrepresenting their own behaviors either to the FBI or in his own courtroom — while getting charged for the same crime.

That comparative approach may be Hodgkins’ best argument for a lenient sentence. Hodgkins’ sentencing memo makes a sustained and not very convincing pitch for the effort to forgive sedition after the Civil War and throws in some bullshit language about “cancel” culture, then asks for probation (as most defense attorneys do for obstruction). But it then argues that, given how little separates Hodgkins from defendants charged with misdemeanor trespass (significantly, that he entered the Senate Chamber itself), he should benefit from a minimal participation variance.

We contend that when one’s role is similar to the several hundred Defendant’s found inside the same building as Mr. HODGKINS who are being offered misdemeanors, and whose conduct is the same as the totality of the misconduct that is alleged in the instant case, as noted in the PSR paragraphs 10-19, that Mr. HODGKINS’ role was only minimal and deserving of a variance. Because Mr. HODGKINS is accepting a felony, giving him the minimal role variance creates a just result for sentencing purposes. Importantly, this argument is about sentencing. The Defendant has pled to a felony offense because of his presence on the Senate floor. Those being offered misdemeanors offense for being inside the Capitol could also arguably have been compelled to plead to the same felony count as Mr. HODGKINS, but for the distinction of their location within the building. While for findings purposes, Mr. HODGKINS presence inside the Senate chambers vice the Rotunda is an important consideration, for purposes of sentencing there is zero space between Mr. HODGKINS conduct and that of the several hundred others who entered the United States Capitol who are being sentenced for a misdemeanor offense. Mr. HODGKINS should be treated likewise. One surmises that had Mr. HODGKINS simply stopped at the Senate door, he also would be facing a misdemeanor charge rather than this felony offense.

This is a fairly convincing argument, not least because of the defendants who were in the Senate Chamber (notably including Cua), Hodgkins engaged in far less obstructive behavior while there.

The government, meanwhile, seems to have taken an approach that hopes to leave itself maximal flexibility after this first January 6 obstruction sentencing, one that really doesn’t credit Hodgkins all that much for being the first to plead guilty.

The defendant, Paul Hodgkins, participated in the January 6, 2021, attack on the United States Capitol—a violent attack that forced an interruption of the certification of the 2020 Electoral College vote count, threatened the peaceful transfer of power after the 2020 Presidential election, injured more than one hundred law enforcement officers, and resulted in more than a million dollars’ worth of property damage. Hodgkins entered the Capitol wearing a backpack containing protective eye goggles, rope, and white latex gloves, among other items. He made his way to the heart of the proceeding that he has pleaded guilty to obstructing – the Senate chamber – where he took “selfie-style” photographs and saluted others who were shouting and cheering from a nearby raised platform in the well of the chamber. The government nonetheless recognizes that Hodgkins did not personally engage in or espouse violence or property destruction, he accepted responsibility early and in a fulsome manner, and he has taken significant steps toward his rehabilitation. Accordingly, the government recommends that the Court sentence Hodgkins to 18 months in custody, which is the mid-point of the Sentencing Guidelines as calculated by the U.S. Probation Office and as contemplated in the parties’ plea agreement. An 18-month, within Guidelines sentence is also supported by the U.S. Probation Office’s conclusion that neither a downward departure nor a downward variance is warranted in this case.

[snip]

The government recognizes that Hodgkins did not personally destroy property or engage in any violence against law enforcement officers. But he was surrounded by others who were doing both, and he entered the Capitol as others had paved the way with destruction and violence. Time and time again, rather than turn around and retreat, Hodgkins pressed forward until he walked all the way down to the well of the Senate chamber. Hodgkins came to D.C. preparing to encounter violence around him. He was a rioter, not a protester, and his conduct shows that he was determined to interfere with the vote count and the peaceful transition of power in the 2020 Presidential election. Hodgkins entered the Senate chamber, where he joined the chanting and ranting at the dais. This was precisely where, only 40 minutes earlier, the Vice President had been sitting at the desk on the elevated platform, surrounded by Senators who were considering a procedural issue related to the certification of the Electoral College vote.

In the end, Hodgkins, like each rioter, contributed to the collective threat to democracy, physical safety, emotional well-being, and property on January 6, 2021.

Keep in mind, the same way defense attorneys always ask for probation, prosecutors always ask for harsh sentences, knowing the judge will usually find some happy medium, and in doing so here, they’re not starting at the top of the sentencing range. But ultimately, by asking Judge Moss to apply a medium range sentence to a defendant facing a range that a large number of defendants might likewise face, they’re trying to set a standard sentence and have it start reasonably high. They’re really not fully accounting for what it took Hodgkins to decide to be the first to plead guilty; they seem to be thinking as much about the over a hundred defendants coming down the pike and so trying to frame how they’re conceiving of this obstruction crime generally as they’re thinking about Hodgkins himself.

Curiously, Judge Moss (possibly with the input of other DC District judges) afforded himself an extra range of flexibility by inviting the Sentencing Commission to review average sentences for the sentencing guidelines that Hodgkins faces. Significantly, the Sentencing Commission found that of those facing the same guidelines sentence as Hodgkins, almost a quarter — 22.6% — got a probation sentence, though it appears all but one of those probation sentences involved a defendant who provided prosecutors “substantial assistance,” and a goodly number got closer to six months after variances below range.

MINUTE ORDER as to PAUL ALLARD HODGKINS (1): In connection with the sentencing of Defendant, the Court has requested and obtained, via email, from the U.S. Sentencing Commission the following information regarding the sentencing of offenders with similar records who have been found guilty of similar conduct to Defendant in this case. The Sentencing Commission reports as follows:

“In the case before you the defendant pled guilty to obstruction of an official proceeding in violation of 18 U.S.C. § 1512(c)(2). The guideline that applies is USSG 2J1.2. Your Probation Office has calculated the guideline range as follows: BOL 14, a 3-level increase for substantial interference with the administration of justice, and a 3-level adjustment for acceptance of responsibility, resulting in a final offense level (FOL) of 14. The offender is assigned to Criminal History Category I. The applicable guideline range is 15-21 months.

“We examined our records from fiscal year 2014 through 2020, and found 31 cases that match this guideline calculation. None of these cases were reported from the District of Columbia. In only nine cases was 18 U.S.C. § 1512(c)(2) a statute of conviction.

“For the 31 cases matching the guideline calculation under USSG § 2J1.2, in 16 cases (51.6%) the offender received a prison only sentence, in six cases (19.4%) the offender received prison with an alternative, in two cases (6.4 %) the sentences was probation with some condition of confinement, and in seven cases (22.6%) the sentence was probation only.

“Of the 31 cases, in seven (22.6%) the sentence was within the guideline range. The average sentence in those cases was 19 months (median = 21 months). Two cases (6.5%) were above range: one upward departure to 36 months and one upward variance to 48 months. The remaining 21 cases (71.0%) were below range. Thirteen cases were below range variances. The average sentence in those cases was seven months (median = six months). One case was downward departure to 14 months, another was a government departure to probation, and the remaining case was a government variance to six months. The remaining six cases were substantial assistance cases.

“In order to provide a more narrowly-tailored analysis, we then limited our analysis to the nine cases in which section 1512(c)(2) was one of the statutes (or the only statute) of conviction. Of those nine cases, in two the sentence was within the guideline range. The sentences were 15 and 21 months. There was one upward departure to 36 months. Three cases were below range variances. The average sentence in those cases was 10 months (median = 12 months). One case was a downward departure to 14 months. The remaining two cases were substantial assistance cases.” Signed by Judge Randolph D. Moss on 07/13/2021. (lcrdm3)

While this table is a rough estimation of what this language says, basically it says a group of people were sentenced to a guidelines sentence, another bigger group were sentenced to around six months, and a third group were sentenced to probation — but never without government agreement (either for a departure or for cooperation).

What Moss has done by obtaining this information and publishing it was, first, to go into Monday’s sentencing hearing with proof that whatever he does will be fair as compared to what has happened to others. Obtaining the guidelines also gives Moss some flexibility. He could, to recognize Hodgkins’ first guilty plea, give him a significant downward variance (and/or sentence him to some alternative to prison, such as weekend confinement), pointing out that the largest group of defendants similarly situated to him got around six months. Alternately, he could explain why he wasn’t giving Hodgkins the probation he requested by pointing out that almost everyone who got a probation sentence in recent history cooperated with prosecutors against others.

Whatever Judge Moss decides (I would be unsurprised by a four to six month sentence, possibly with the opportunity to serve it on weekends or something similar), Hodgkins went first because he has a legitimate argument to make that, aside from his presence on the Senate floor, his behavior really was less culpable than many of the defendants charged with the same crime. Which means — again assuming this novel application of obstruction is upheld going forward — this is just the beginning of a long series of similar horse trading over sentences going forward.

Update: Josh Gerstein reminded me that Judge Moss used a similar approach to George Papadopoulos’ sentencing and — believing that Papadopoulos felt remorse — sentenced him to fourteen days rather than the thirty days he had been considering. Papadopoulos’ guidelines were 0 to 6 months.

The Delayed Trespassing Charges against Savanah McDonald and Nolan Kidd

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Two MAGA tourists from Georgia, Savanah McDonald and Nolan Kidd, were arrested last Friday on charges of trespassing into the Capitol on January 6. They were two of the last remaining people captured in a photo of Jacob Chansley to be arrested.

There’s a detail of interest that may have some bearing on other cases.

People called in tips to the FBI on the two just days after the assault. On January 11, someone sent a screen cap of Kidd’s Facebook account full of pictures from inside the Capitol. Three days later someone sent a picture of McDonald in.

The FBI interviewed both shortly after receiving the tips. They told a story that many other insurrectionists have told since: they were let in.

On January 14, 2021, FBI agents interviewed MCDONALD in Elberton, Georgia. MCDONALD agreed to speak to the agents. When MCDONALD was shown the below picture, MCDONALD confirmed that the person circled was her.

MCDONALD stated that she and KIDD marched to the U.S. Capitol, and when they reached the U.S. Capitol, there were uniformed police officers near the doors telling them to come inside and showing them where to go.

On January 15, 2021, FBI agents separately interviewed KIDD in Athens, Georgia. KIDD agreed to speak to the agents. KIDD told the agents that the doors to the U.S. Capitol were wide open.

Nothing apparently happened for a while, until, on March 8, the FBI Agent on the case viewed video from the Northwest stairs leading to the door through which the two entered showing cops first attempting to rebuff an assault with tear gas, followed by the breach of the perimeter. She found that four minutes after that breach, in the wake of the tear gas, McDonald and Kidd rushed up the stairs.

The FBI agent explained that McDonald and Kidd entered via a door slightly to the side of the one that Dominic Pezzola first broke through, just 14 seconds after it was opened, “by unauthorized individuals” she doesn’t name.

MCDONALD and KIDD entered the U.S. Capitol through a Senate Fire Door approximately 14 seconds after it was breached from the inside by unauthorized individuals. The Senate Fire Door is marked in the above photo by an arrow.

That same day, she got search warrants for Kidd’s Facebook account and McDonald’s SnapChat, the former of which — in addition to admitting that he had removed his pictures to avoid arrest — showed McDonald and Kidd posing in front of a line of cops at the site of the Chansley confrontation, the latter of which depicted McDonald bragging about making it to the Senate.

The claim that that Northwest door was not strongly defended is true. It’s a claim that many defendants have made. But what seems to have happened here is that the FBI held off on applying for a probable cause warrant until they could show that before they walked in an unattended door, McDonald and Kidd were right in the middle of a crowd where cops were taking explicit measures to hold back the crowd.

This is not the first time we’ve seen something like this. When Brady Knowlton was arrested after they discovered him entering the building with Patrick Montgomery, his lawyers immediate demanded exculpatory evidence showing them walking right in this door. [Note,  this is believed to be a different door–the West central door; thanks to “Sansa Stark” for clarifying.]

Then the government indicted him along with Montgomery, charging the latter with assault along the way. Last DOJ reported, Knowlton was entertaining a plea offer.

Something happened at these doors that is both making it hard to hold people accountable for entering it, but also seems to be of investigative interest. Perhaps that’s why McDonald and Kidd got arrested — to obtain the video that Kidd, especially, shot.

But until then, prosecutors may be relying on confrontations outside the building to make it clear that defendants knew they shouldn’t have stormed the building.

January 6: A Change of Pace

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Although GWU’s tracker, which is still the best way to keep track of all the January 6 defendants (though this visual story from WaPo using their data is nifty) added four new January 6 defendants yesterday, the pace of new defendants has slowed considerably. While there are still some detention fights, several of those disputes (Proud Boys Ethan Nordean and Joe Biggs, and disorganized conspirators Nate DeGrave and Ronnie Sandlin, as well as Neo-Nazi sympathizer Timothy Hale-Cusanelli — have moved to the DC Circuit.

We’re likely to have more bail revocation fights. The other day, for example, Landon Copeland — who made news for his meltdown during a magistrate judge’s hearing last week — was arrested for some still unidentified bail violation. The government has also moved to revoke Patrick Montgomery’s bail because he — a professional hunting guide — shot a mountain lion that he — a felon — cannot legally possess.

But there are a couple of developments this week that point to what’s going on with this investigation.

Delayed phone exploitation

In a hearing in the case against mother and son defendants Deborah and Salvador Sandoval, Deborah’s attorneys were anxious to move to trial based off an apparent misunderstanding that the evidence on her sole computer device, her smart phone, would show she barely entered the Capitol. Meanwhile, the government revealed that because Salvador chose not to share passwords to his multiple devices, those are taking a lot longer to exploit. As I’ve already noted, Ethan Nordean is the only Proud Boys leadership co-conspirator whose phone DOJ was able to exploit without cracking the password first (the FBI got the password from Nordean’s wife). Exploiting all these phones is going to take a lot of time.

In another case, there appear to be privileged communications on Eric Torrens’ phone, which will delay the exploitation of that for up to four weeks as a filter team reviews the content.

In other words, even before you consider any delay created by FBI’s need to respond to Signal’s Moxie Marlinspike’s exposure of vulnerabilities in Cellebrite’s code, it will take some time to process the vast volume of evidence the government has obtained since January 6.

The network analysis

The arrest of Brittiany Dillon gives a sense of another cause of delay.

Bryan Betancur was one of the first wave of January 6 defendants to be arrested, on January 17, after his parole officer alerted the FBI that he had lied about handing out Bibles to get permission to travel from Baltimore to DC that day. The government got a warrant for his phone on January 20. Once they got into his phone, they discovered text messages between Betancur and Dillon in which Dillon described falling in the door of the Capitol during the riot. The government found video of her — falling down as she entered — on surveillance videos by January 23. The government obtained phone and Google warrants to confirm that Dillon had been inside the Capitol the day of the riot. For some reason, the FBI only got around to interviewing Dillon’s father, ostensibly about Betancur, on April 21; the agent got Dillon’s father to confirm Dillon’s ID while they were talking.

This is similar to what happened with Patrick Montgomery, who like Betancur was arrested on January 17. Only after FBI exploited his phone and found some key pictures did they arrest a buddy he was with that day, Brady Knowlton, while pursuing two others.

These arrests of friends of early arrestees may reflect an FBI agent trying to get arrest numbers, but in a number of cases, they seem to reflect larger investigative strategies based on things investigators have found in the profiles of the original defendant. By my count there are about 18 cases of network arrests aside from the militia conspiracies, and about half of those look like they may be more interesting than friends getting scooped up together. I would expect to see more of this going forward.

Delayed arrests

The two month delay between the time DOJ identified active duty Marine, Major Christopher Warnagiris, as the person who played a key role in keeping the East door of the Capitol open after it was first breached on January 6 and when they arrested him on Wednesday is far more interesting.

As the arrest affidavit explains, FBI isolated Warnagiris as a suspect based on his conduct as shown in video, and then published a Be On the Lookout picture to figure out who he was. On March 16, a former co-worker IDed him, and on March 17, the FBI interviewed one of his current co-workers, who positively IDed Warnagiris.

And that’s it–that’s where the narrative in the affidavit, which was signed on Wednesday, ends. They get a BOLO-based tip on March 16, and get military witnesses to confirm his ID on March 17. And that’s all they’re telling us about who he is and what other evidence they have against him.

I’m sure that’s not all that has transpired since FBI discovered an active duty Major played a key role in keeping the East Capitol breach open.

All the while, someone who by dint of being an active duty service member has clearance, has (as far as we know) been going into Quantico every day for the almost two months since they IDed him. That’s … an interesting investigative decision.

Compare that narrative to the one told in the arrest affidavit of Timothy Hale-Cusanelli, the Army reservist and Nazi-sympathizer who worked as a contractor at Naval Weapons Station Earle in New Jersey. On January 12, an informant told the FBI that Hale-Cusanelli was at the riot, on January 14, the informant recorded a conversation in which Hale-Cusanelli admitted to pushing and shoving along with the rest of the mob. Hale-Cusanelli has been jailed since the very next day, January 15 (he is appealing his detention to the DC Circuit). Hale-Cusanelli has not been charged with assault and he is not known to have played such a key role in compromising the Capitol from a second side.

Now, for many defendants, I can see taking your time after the initial rush of arrests. After all, if they were going to delete their Facebook, that would have happened (and did happen, with a goodly number of defendants) by January 9. But Warnagiris seems like a more urgent risk.

And, remarkably, DOJ apparently did not ask for any special conditions on Warnagiris. He has no location monitoring, no restrictions on possessing a gun, no specificity to his travel around DC (most defendants have stay-away orders, but for people like Warnagiris who are local to DC, they’re sometimes restricted to their District). They did not ask him to surrender his passport. Now, perhaps something is also going on with him in the military. But the whole thing — on top of the inevitable shock of having an active duty officer arrested — raises more questions than other cases.

All of which is to say that, with a defendant who genuinely poses unique security risks, the government is now taking their time to flesh out their investigation.

I’ve said from the start that this investigation has been lightning quick. That’s still, absolutely, true. But there’s going to be a lot more happening behind closed doors in the weeks ahead.

The Crossroads of Insurrection: The Senate Chamber Insurrection Defendants

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In a recent motion opposing relaxing Larry Brock’s release conditions, the government revealed that it, “is continuing to investigate the Defendant for the offense of obstruction under Title 18 United States Code Section 1512(c).” Brock is the retired Lieutenant Colonel who, like Eric Munchel, brought Zip Ties onto the Senate floor. In spite of Brock’s online writings shortly after the election predicting that, ““Fire and blood will be needed soon,” Brock was charged only with misdemeanor trespassing for his role in the insurrection.

Since then, the Senate has been a locus of increased attention, as the government arrests more people with video of what happened there and rounds up the co-conspirators of those they arrested months ago.

That increased attention provides a way to look at the events of January 6 via a different lens. Rather than focusing on the most spectacular defendants — no one is more spectacular than Jacob Chansley, but Eric Munchel’s actions attracted attention away from others — by focusing on who breached the Senate, we can understand some of the logistics that allowed it to be breached. And by whom.

The picture we get, as a result, is a crossroads of the really aggressive participants of the January 6 insurrection, with cultists, militia members, GOP operatives, and curious tourists all represented.

I am assuredly not saying there was or is a conspiracy that joins all these people. While there are some pregnant unanswered questions about individuals like Leo Bozell, Bradley Barnett, Jacob Clark, and Patrick Montgomery — as well as conduct like assaults charged against Montgomery and DJ Shalvey that remain undescribed — there’s absolutely no reason to believe this was all coordinated. … Beyond, of course, the President calling out the mob on Mike Pence.

A focus on the Senate is useful, though, to show how the multiple breaches interacted. The first people who came in the West door (including the Hughes brothers), the Northwest door (including Patrick Montgomery and his buddies), and the East door (which is how Joe Biggs got to the Senate), all made it to the Senate before it was secured. Indeed, a number of people who made it to the Senate (like Ronnie Sandlin) were instrumental in opening the East doors from inside, before they reached the Senate. So looking at who got to the Senate how helps to clarify how all the three main breaches worked in tandem, and in fairly quick succession.

It’s also a reality check about the relative importance of various groups who breached the Capitol. While this is still an impartial picture, the narrative to date suggests that QAnon managed to get far more of their adherents to the Senate floor than either the Proud Boys (Joe Biggs and Arthur Jackman showed up after getting in with the help of people inside) or the Oath Keepers (Kelly Meggs and Joshua James showed up too late). QAnon held a prayer on the dais while the militias were still breaching doors.

There are a number of people who remain — publicly at least — unidentified, such as two of Patrick Montgomery’s associates or someone who shadowed Bozell.

This post, a description of those who breached the Senate organized alphabetically by the most important participant, is just a baseline from which to understand more about who go to the Senate and how.

Update: In comments a few people have explained what significance I attribute to continuances a few of these defendants, like Leo Kelly, have. It means several things. First, it means the person in question is immediately moving to discuss a plea deal. One of the defense attorneys here seems to have chosen to really aggressively seek such continuances (Kira West is a noticed attorney on three of these defendants: Leo Kelly and Christine Priola, both of whom got continuances before being formally charged, and Tony Mariotto, who was charged by information; in the latter two cases, though, West sponsored outside attorneys Pro Hac Vice). But from a narrative perspective, it means our understanding of what the government knows about the defendant is frozen at the moment the FBI agent writes an arrest affidavit, whereas with defendants who get detained and then challenge that detention, which include a high percentage of the defendants who made it to the Senate, we often learn what the government found on the person’s cell phone. One of the points I attempted to make here is that for a variety of reasons, the story told in the court filings leaves out significant and, in some cases, intentional gaps in the revelation of what the government knows.

Note: This is based of my own imperfect list of who was described as being where. Plus, I suck at visual identifications. Please let me know what I’ve missed in comments. 

Thomas Adams

Per his arrest affidavit, Thomas Adams traveled from Springfield, IL, and claims to have just followed the mob with an unnamed friend (probably Roy Franklin, who was interviewed along with him the day of the insurrection) up the scaffolding to what I believe is the Northwest door. The cops he saw after he entered the building “weren’t really doing much … just waiting to see if we’d try to push past them.” Soon thereafter, he entered the Senate, where he saw Jacob Chansley, who he thought was “hilarious.” This is a photo of Adams in the Senate.

Adams took a lot of video while he was in the Capitol, including footage from the Senate floor the government may be particularly interested in, including this image.

Adams was arrested on April 13, over three months after he appeared in an article describing his exploits that day, during a period when the government seemed to be arresting a lot of people who took a lot of video of key scenes. He was charged with trespassing and obstructing the vote count.

Tommy Allen

Tommy Allen flew to DC from Rocklin, CA. He was picked up on video recordings in the Senate from 3:03 to 3:10PM on January 6. In addition to this picture, he was filmed taking papers from the clerks’ desks at the front of the Senate and putting them in his back left pocket, as well as absconding with the American flag.

He would later tell a journalist he took a letter from Trump to Mitch McConnell from the then-Majority Leader’s desk.

Allen was arrested on January 22 after first a stranger and then someone who’d “interacted with him on a number of occasions” alerted the FBI to his Facebook posts, which he tried to delete after he returned home. The latter witness also told the FBI that he or she had heard that Allen had destroyed the documents he took in his backyard.

Allen was charged with trespassing and (probably misdemeanor) theft; after he was formally charged with the same charges on February 2, he wasn’t arraigned until April 8.

Bradley Bennett and Rosie Williams

At some point on January 6, QAnoner Bradley Bennett and his partner Rosie Williams seemed to pray with DJ Shalvey and two others.

And they appear to have gotten in the Capitol the same way that Andrew Griswold did (so probably the East entrance, after those doors were opened from inside). They also made it to the Senate.

Those images would seemingly expose the couple mostly to trespass charges — and indeed, that’s all Rosie got charged with, both on their arrest complaint and their indictment.

But from the start, Bennett responded to his pursuit with obstruction. First, per a tipster who had tracked Bennett for his QAnon postings, Bennett deleted most of his January 6 postings within a day of the event.

Publicly, on the day of the event, Bennett blamed Antifa instigators.

But Bennett texted an associate the same day and clarified that Jacob Chansley was not Antifa.

Bennett and Chansley now share an attorney, Albert Watkins.

Then, after the FBI arrived in Kerrville, TX on March 23 to arrest the couple based off a March 19 warrant, only Rosie was there to be arrested. Per a motion for detention, Bennett had left on March 13 (though one of his sisters claims they split up in February), rented a car, drove to North Carolina, then went to stay with a friend in Fort Mill, South Carolina for two weeks, then hid for another 10 days until finally agreeing to turn himself in on April 9. He stopped using his cell service in that time period and stopped posting to Facebook, shifting to Telegram instead. At some point, he got rid of his new iPhone 11, claiming it did not work (there’s still some uncertainty about when and why he ditched the phone).

Bennett’s efforts to evade arrest may well arise out of nothing more than QAnon paranoia. Though several other aspects about him suggest he may have a more sophisticated Q-related grift going on. But he had attracted attention, even among Q adherents, even before January 6, and he was among the most elusive defendants of all January 6 arrestees.

Joe Biggs and Arthur Jackman

That Joe Biggs made his way to the Senate chamber did not show up in his arrest affidavit, or the first several filings in his case. It was mentioned in the “Leadership indictment” charging Biggs and three others with a conspiracy to obstruct the election certification.

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

65. After re-entering the Capitol by force, BIGGS and another member of the Proud Boys traveled to the Senate chamber.

But that indictment, released on March 10, may have increased the urgency of the focus on the Senate, as it showed that Biggs entered the Capitol twice — first in the initial wave, through the West door, and then through the East door — in a kind of pincer movement and after doing so went to where Mike Pence had only recently been evacuated.

I’m not sure I’ve seen pictures of Biggs in the Senate. But the arrest affidavit for Arthur Jackman — with Paul Rae, one of two Floridians who tailed Biggs around that day — shows him, after twice being caught walking with his hand on Biggs’ shoulder…

… And posing with Biggs and Rae for a selfie on the East steps …

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

And taking this selfie with his Proud Boys emblazoned cell phone.

In fact, the investigation into Jackman (at least as described in the affidavit) started when a friend of Jackman’s shared that selfie — which Jackman had first sent to a childhood friend — with the FBI.

When interviewed by the FBI on January 19, a good two months before he was arrested, Jackman explained that he had joined the Proud Boys in 2016 as a way to support Trump, refused to say whether he had entered the Capitol, but claimed the Proud Boys weren’t there to infiltrate it as [this makes no sense] it was not a sanctioned Proud Boys event.

It’s going to be hard to argue he didn’t breach the Capitol as part of a Proud Boys’ event (twice!) when he did so each time tailing along behind Joe Biggs.

Joshua Black

Joshua Black claimed that God instructed him to drive to DC and take part in events on January 6, and he came with his knife. He was at the front of the mob pushing past barricades before the initial breach of the Capitol (though it’s not clear whether he was pushing himself or being pushed from behind), and after being hit in his face with a plastic bullet, he then walked around the Capitol and entered the East side, at the forefront of another mob. Then he found the Senate Chamber.

While there, he joined others in rifling through and photographing papers on the desks and then in prayer. He ordered someone else (maybe Christian Secor?) to get out of the presiding officer’s chair and not to be disrespectful, and ordered others not to loot the place.

He self reported after he showed up in media coverage, and then later admitted to the FBI he brought the knife that would significantly expand his legal exposure.

He was formally charged with obstruction, and the trespassing charges against him were enhanced because of that knife. He spent over three months in jail, in part because an Alabama Magistrate believed he might be dangerous if he came to believe God ordered him to commit violence. After a hearing on April 23, Amy Berman Jackson released him to home confinement.

Leo “Zeeker” Bozell

Someone whose kids went to school with Zeeker Bozell’s kids tipped of the FBI on January 14 that he had been part of the riot.

Then later, when CNN published footage from the New Yorker on the Senate rioters, that same tipster alerted the FBI to that, too, circling the scion of the movement conservative, Leo Bozell, in the picture.

After being interviewed by the FBI on January 19, the same very persistent witness followed up again on January 24 with this YouTube video that included a fleeting glimpse of Bozell, this time on the balcony in the Senate.

The clip itself is innocuous. But the crowd it captures on the balcony, possibly a convergence of the first people to arrive, may be far more important.

What may have finally piqued the FBI’s interest in the son of a prominent Republican operative were the videos showing that while Bozell was up on the balcony — before anyone was on the floor of the Senate — he and a much younger man (Mike P persuasively argues that this is Bruno Cua in comments) took steps to ensure that two cameras would not capture what was about to happen on the Senate floor.

Bozell was originally charged with trespassing and obstruction on February 11; he was arrested 6 days later. It wasn’t until his indictment on March 12 — two days after Joe Biggs was indicted in the “Leadership” indictment — that Bozell was charged with doing or abetting $1,000 of damage while forcibly entering the Capitol, the same charge used to detain some Proud Boys and Oath Keepers prior to trial. But in spite of being implicated in a crime of violence, Bozell was released on personal recognizance.

Larry Brock

Larry Brock is the less famous of the two Zip Tie Guys in the Senate that day, though Brock was even more kitted out than Eric Munchel. According to his arrest affidavit, within two days of the riot, Brock’s ex-wife called the FBI and told them he had been on the Senate floor. That same day, someone who knew of Brock’s Air Force background and ties to defense contractor L3 also tipped off the FBI.

Brock is one of the people (Oath Keepers Kelly Meggs and Joshua James were recently disclosed to be others) who also made it to Nancy Pelosi’s office, suggesting he was hunting top legislators. Yet, even though videos show Brock lecturing the other insurrectionists that, to win the I/O (information operation) war, they needed to avoid damaging anything, and even though Brock’s social media shows he had started talking war days after the election and mused that, “I really believe we are going to take back what they did on November 3,” while traveling to DC, the government only charged him with misdemeanor trespass (though as noted above, they’re still weighing obstruction charges for him).

Jacob Chansley

Jacob Chansley’s strutting poses have made him the poster child of the insurrection, but the self-billed “Q Shaman” was well know to those who tracked extremist organizing and QAnon before January 6.

As with Joshua Black, the FBI didn’t need to come looking for Chansley. He called them on January 7 and admitted he was the guy with animal pelts and no shirt.

Even though Chansley was originally charged on January 8 only with trespassing, an indictment obtained 3 days later charged him with obstruction and civil disorder. When Royce Lamberth denied Chansley’s bid for pre-trial release, he treated the spear Chansley had brought as a dangerous weapon, which will make his trespassing charges a felony as well.

Amid all the discussions about Chansley since he was arrested, one thing has gotten little public attention: his admission that he traveled to DC with some other people from Arizona, people who no doubt would implicate him in an extremist network that predated January 6. Unless I’ve missed it, that network hasn’t been implicated together.

Jacob Clark

The government got an arrest warrant for Jacob Clark by March 5. It appears to be based largely off using facial recognition to match his Colorado driver’s license to nine different pictures obtained from surveillance videos from the Capitol, corroborated by one person who knows him. They also used returns from the Google GeoFence warrant to show he was inside the Capitol from 2:15 until 3:25PM the day of the riot and returns from a Verizon warrant showing him driving from Colorado to DC from January 4 to 5 and then returning starting on January 7.

Because the government didn’t arrest Clark until April 21, over six weeks after obtaining the warrant, the warrant affidavit surely only shows a fraction of what the government knows about him. Even still, the affidavit shows Clark to have been like Where’s Waldo during the time he was in the Capitol, with surveillance footage showing him in four different confrontations with police in four different locations, each time seemingly pushing the cops to let rioters run through the building. The most easily identifiable (though he was also in the Rotunda as it was breached) shows that Clark took part in the exchange with plain clothes police outside the Senate gallery that Nate DeGrave was also charged for.

What’s interesting is the video shows that Clark got to that hallway over a minute before almost everyone else.

Clark was charged with civil disorder, obstruction, and trespassing, but perhaps because he was only recently arrested, he has not yet been indicted.

Josiah Colt, Ronnie Sandlin, and Nick DeGrave

I described here how these three men planned and outfitted for the insurrection together. The key takeaway from that post for the purpose of this one is that Sandlin and DeGrave are accused of tussling with cops so as to permit the East door of the Capitol to be opened (through which some key conspirators rushed), but also of fighting with cops just outside the Senate Chamber (along with Jacob Clark, above, and with Christian Secor watching) so as to permit the Chamber itself to be breached.

Only Josiah Colt is recognizable among these three, but his two buddies played pretty key roles in the success of the larger insurrection.

Elias Costianes

The FBI received a tip on January 8 that Elias Costianes had posted videos of his participation in the riot on his Snapchat account. On January 19, the tipster provided the videos he uploaded. Those showed Costianes filming himself in the Senate, outside Pelosi’s office, and possibly watching the East doors being breached. He was charged on February 3 with trespassing and obstruction and arrested on February 12. He was indicted on the same charges on March 3, and his case has been continued since, meaning there’s no explanation for why he knew precisely where to go in the Capitol.

Bruno Cua

Cua, a spoiled 18-year old whose own parents enabled his participation in the insurrection, was part of the mob that fought to get into the Senate Chamber (along with Sandlin, DeGrave, and Clark). According to his arrest affidavit, he was turned in by local police officers, who knew him because he has a history of pissing off his neighbors and ignoring orders. He was charged on January 29, arrested on February 5, and indicted on February 10. He was charged with obstruction, civil disorder, and assault/resisting, and his trespass charges were enhanced because he carried a baton with him. Even after the insurrection, Cua still endorsed violence.

Violent protests against the capital (NOT SMALL BUSINESS’S) are well within our constitutional rights

Dear Swamp Rats, The events at the capital were a reminder that WE THE PEOPLE are in charge of this country and that you work for us. There will be no ‘warning shot’ next time.

Everyone who works in congress is a traitor to the people and deserves a public execution.

But beyond details from his social media posts, there was nothing from an extended detention fight that illuminated more about Cua’s ties.

Andrew Griswold

For all we can tell from the court filings, Andrew Griswold is just some guy who went to the Senate floor along with a bunch of other people who wanted to prevent the vote count.

But there are a few interesting features of his case. Someone else who went to the Senate helped get Griswold, from Niceville, Florida, arrested. His Febuary 26 arrest affidavit, describing how he was one of the first people to come through what must be the East door after it was opened with the help of Sandlin and DeGrave, relies, in part on,

camera footage obtained from an individual (W-2) who also entered the Capitol on January 6. At multiple points during the video, an individual who appears to be GRISWOLD is visible, wearing a camouflage jacket.

[snip]

At one point in the video, W-2 walks through a hallway, and GRISWOLD is visible ahead. W-2 then enters the Senate gallery, and GRISWOLD is again visible, as seen in the screenshot below:

The discovery shared with Griswold may describe this as, “One clip from a video obtained in another investigation” which the government deems as Sensitive.

Magistrate Michael Harvey approved Griswold’s arrest warrant on February 26. But the first arrest warrant against him was quashed by Harvey, apparently on March 1; the arrest warrant that Harvey approved is also dated March 1. Griswold was arrested on March 5 and that same day he and his attorney stipulated to the fidelity of the FBI image of his phone so he could get it returned, which is a reasonable thing to do if you want to avoid buying a new phone but very rare among January 6 defendants (indeed, Vitaly Gossjankowski won’t so stipulate with his laptop, even though that has expensive software on it to assist his hearing disability). Griswold was charged with trespassing and obstruction, but almost two months after his arrest, he has not been formally indicted.

Apparently as part of Griswold’s efforts to get the DC pretrial release conditions imposed rather than the local FL ones (the conditions differ in terms of the travel restrictions, the reporting requirements, restrictions on alcohol and other drugs, and — most notably — restrictions on the right to retain a legal firearm), the original Florida judge in his case recused and another granted Griswold’s request. All subsequent January 6 defendants seem to be having restrictions imposed on gun ownership, so that may have been the issue.

Paul Hodgkins

In an interview on January 26, four days after an acquaintance provided the FBI with a selfie he posted to Parler, Paul Hodgkins told the FBI that he traveled to DC alone, on a bus, and didn’t know any of the people engaged in violence or destruction around him. But before he started rifling through things on the desks in the Senate, he put on some white latex gloves, which is a curious bit of preparation for a guy who just hopped on a bus alone.

Hodgkins’ release conditions — initially, with a $25,000 bond and high intensity supervision, though with the bond later dropped by Magistrate Merriweather and then his curfew loosened by Judge Randolph Moss — were much stricter than other defendants charged, like he was on March 5, with trespassing and obstruction. (That could either stem from a strict local magistrate or from a prior arrest record.) In both of Hodgkins’ appearances, his lawyers have talked about making a plea deal.

Jerod  and Joshua Hughes

Jerod and Joshua Hughes are brothers from Montana. They watched as Dominick Pezzola busted through a window to break into the Capitol, were among the first 10 people in (amid a group that included Proud Boys who — like them — are from Montana), then Jerod kicked the door open to allow other rioters in behind them.

They went from there immediately towards the Senate floor, following Officer Goodman closely behind Doug Jensen.

Once inside the Senate, Jerod set about ransacking desks as Christian Secor, holding his America First sign, looked on.

That’s about all their arrest warrant, charging them with civil disorder, damaging government property, obstruction, and trespassing describes. They turned themselves in on January 11 after the FBI released their pictures on a BOLO. They were indicted on February 10. Since that time first Jerod, then Joshua, have moved for bond, which Judge Tim Kelly granted to both on April 7.

Those detention disputes, revealed that the brothers had driven over days to attend Trump’s rally. They claimed, at first, that they had gone to the Capitol in response to Trump’s exhortations. But after the prosecutor reviewed the Cellebrite report from Jerod’s phone on April 5, the government discovered texts showing buddies had funded the trip, and that Jerod claimed that he was behaving as a model citizen by participating in an insurrection.

Defendant: Ah we didn’t do anything crazy like destroy shit or fight the cops. Trespass and vandalism. Meh. I’ve done time. It’s josh I worry about.

Person Five: It’s the trespassing I worry about, but there may have been so many of you that figuring it out is more trouble than it’s worth. Were you in the photos? I could only see josh

Defendant: They got my ugly mug up and down. Trespassing ain’t shit. I feel like I was behaving like a model citizen ready to reclaim my country. Not enuff people followed.

Jerod said to someone else that they had wanted to hold the place but didn’t have numbers to accomplish that.

Person Six: How was it

Defendant: Insane on a few different levels.

Defendant: I saw picture [sic] of me and josh already on the news. Not enough people followed us in to hold the place. We had to get the fuck out.

The government also noted — attributing it to a picture on Jerod’s phone though they surely would have had it before — that the two had been present in the Senate Gallery, as well as the Senate floor.

Leo Christopher Kelly

Leo Kelly did an interview the day of the riot — after being among the first people in the Capitol and praying with others on the dais of the Senate — expressing some reservations about invading other people’s space. He asked a Deputy US Marshal to tell the FBI he would turn himself in if an arrest warrant were issued. He was arrested, just on trespassing charges, days later. Since that time, the government has twice deferred formally charging him, with the next deadline for a preliminary hearing set for May 10.

Anthony Mariotto

Like fellow Floridian, Arthur Jackman, Tony Mariotto was first IDed after he shared a selfie from the Senate Gallery and a friend shared it (after Mariotto had deleted his Facebook account) with the FBI.

Mariotto was in Georgia when the FBI first caught up with him. But when they asked, he immediately returned to Florida, and, on January 19, handed over his phone to be imaged. Three days later he was arrested. On February 8, he was formally charged with trespassing.

His arrest affidavit, which describes, “other videos that were recorded inside the Capitol Building during the events of January 6, 2021,” doesn’t describe what was on those videos. They may be among those that implicate others who entered the Senate.

Patrick Montgomery and Brady Knowlton

The investigation of Patrick Montgomery is a useful snapshot for understanding the Senate as a crossroads. As I wrote here, his acquaintances started turning him into the FBI the day after the insurrection, leading to his arrest and formal charge on misdemeanor trespassing charges by information. Even while that was happening, the FBI was investigating a guy who showed up in one of his pictures from the day, Brady Knowlton.

Knowlton’s arrest affidavit implicated two other guys, one that a witness who has been in a lawsuit with Knowlton for years described as Knowlton’s “right-hand man,” but who remains unnamed and uncharged. And surveillance images of Knowlton and Montgomery IDed someone — the guy in the hoodie who entered the Capitol with Knowlton and Montgomery — whom FBI either declined to name or had not yet IDed when they got the Knowlton arrest warrant.

The three of them went to the Rotunda — where people were opening a third breach to the Capitol — and from there to the Senate, with Knowlton filming from his camera the entire time.

When the government indicted Montgomery and Knowlton on April 16, they not only charged both with obstruction, but they added assault and civil disorder charges against Montgomery for an unidentified exchange with cops.

So in addition to the assault that Montgomery allegedly was involved in, this thread still leaves two men unidentified.

Christopher Moynihan

Per his arrest affidavit, Christopher Moynihan is another of the people who rifled through official papers when he got to the floor of the Senate on January 6. g “There’s got to be something we can use against these fucking scumbags,” he was quoted as saying. In the wake of the New Yorker video, two of Moynihan’s former co-workers alerted the FBI to his identity. He joined the prayer on the dais, but with a sour face that made it look like he was just going along. He was arrested on February 25 and indicted with the same obstruction and trespassing charges on March 17.

Eric Munchel and Lisa Eisenhart

Eric Munchel and his mom, Lisa Eisenhart, quickly became the focus of both legal and press attention given his spectacular appearance on the floor of the Senate with Zip Ties.

They were arrested early — on January 15. Munchel’s admission to having a taser when he breached the Capitol increased both’s legal exposure under a deadly weapon enhancement. But Munchel’s general compliance with law enforcement also helped to convince the DC Circuit they would not be a threat going forward.

After the events of January 6, Munchel apparently considered joining Proud Boys. But instead, he’s now the poster child both for the threat of kidnapping, but also for a DC Circuit standard of bail that treats involvement in a terrorist event as a historical threat, and requires detention decisions to consider whether the same people pose a forward-looking terrorist threat.

The more important point for the purposes of this post is that the government has not yet shown proof that Munchel or his mother did more than recognize the two militias as they were engaged in armed MAGA tourism while holding zip ties.

Christine Priola

According to her arrest affidavit, the government identified Christine Priola’s presence in the Senate chamber within days, based in part on the sign she carried reading, “The Children Cry Out for Justice,” perhaps suggesting a QAnon affiliation. Curiously, the affidavit explains that she and others — the first people in the Senate — “entered the restricted floor area of the Senate chambers and took photographs of the evacuation of the Senate chambers that were required based on the unauthorized entrance,” suggesting the rioters arrived even earlier than the impeachment case had made out.

After a tip on January 8 from someone in Cleveland that Priola, who worked for the Cleveland School District, was the one holding the sign, the FBI searched her home and seized her devices — on which she had filmed events in the Senate — that same day. But when the FBI imaged her phone, there were no photos, videos, chats, or messages from January 4 through 7, and the location of the phone was also unavailable until 4:23PM on January 6, when her phone showed up northeast of the Capitol.

Priola was arrested for trespassing on January 14, but since then her case has been on hold, without even an Information to show whether the FBI obtained more information on why her phone had been cleared within two days.

Michael Roche

Michael Roche is one of the people who joined Jacob Chansley in prayer on the Senate dais. The story of how he came to be arrested — and why he was not arrested until April 13 — remains a muddle. He was IDed on February 8 when law enforcement found a video he made posted to someone else’s account. In the video, he admitted that,

We did get a chance to storm the Capitol. And we made it into the chamber. . . . We managed to convince the cops to let us through. They listened to reason. And when we got into the chamber … we all started praying and shouting in the name of Jesus Christ, and inviting Christ back into out state [sic] capitol.

That seems to have led the FBI to this photo was posted by Seth Roche, explaining that he took the picture before people started claiming that Jacob Chansley was Antifa and explaining (I think) that his brother had stood shoulder to shoulder in prayer with Chansley, “in the main capital [sic] chamber [sic] holding up the Bible.”

Roche’s arrest affidavit suggests the FBI found both those posts before the New Yorker posted its story on January 17 with the video of Chansley, Roche, and others praying.

According to the arrest affidavit, nothing else happened until US Marshals, in an effort to find a missing child, knocked on Roche’s door, thinking the child’s family lived there. Roche told the Marshals he thought they were coming to arrest him. When the Marshals informed the FBI that same day, the FBI got the Marshal to ID Roche as the person in the NYer.

Again, all that happened by February 2. It wasn’t until April 7 when the FBI submitted his arrest affidavit. The affidavit not only has no more recent evidence in it, but it doesn’t really explain why Roche (unlike — say — Larry Brock) got charged with obstruction along with trespassing.

Those questions further raise the question about whose Facebook his interview appeared on, because that person may be the real person of interest associated with Roche.

Christian Secor

It seems like Christian Secor’s classmates at UCLA jumped on the opportunity to report Secor’s involvement in the January 6 insurrection. Eleven people, many of them students, IDed Secor as one of the people who had sat in the presiding officer’s seat or otherwise shown up in the New Yorker video of the Senate occupation.

But Secor did more than tour the Senate. The surveillance videos the FBI included with his arrest affidavit show Secor was among those who shoved the East doors open from inside.

He was close to  the brawl outside the Senate gallery doors involving Nate DeGrave, Ronnie Sandlin, and Jacob Clark.

There’s even a clip of him just behind the woman that the FBI suspects of having Nancy Pelosi’s laptop (per a Homer, AK woman who claims she was mistakenly IDed as such).

There’s no reason to believe Secor and this woman are together, but the proximity is interesting given that Riley June Williams, also a Groyper, allegedly first took the laptop.

Secor was arrested on suspicion of assault, civil disorder, obstruction, and trespassing on February 16 and indicted on those same charges on February 26. In March his lawyer moved to get him released in time to finish his UCLA finals. The government tried to oppose his release, pointing in part to his pro-fascist views, in part to the weapons he had been acquiring and in part to his alleged attempts to cover up his involvement. But Judge Trevor McFadden released him on a $200,000 bail with a rather curious kind of home incarceration that lets him out to work.

DJ Shalvey

DJ Shalvey is the guy wearing an undersized hard hat depicted in videos of people rifling through papers in the Senate. He’s quoted thinking Ted Cruz sold them out before others tell him, no, Ted Cruz was right there with the insurrectionists.

The FBI obtained an arrest warrant for him after two long-time associates alerted the FBI, one of whom shared selfies that Shalvey sent him the day of the riot, by February 12. But he wasn’t arrested until March 9, reportedly after turning himself in. Somewhere along the way he must have interviewed with the FBI, though, because his (still undocketed) indictment released Friday not only added assault and civil disorder charges against him, as well as theft charges for taking a letter from Mitt Romney to Mike Pence, but they also made Shalvey the rare if not only January 6 defendant charged with lying to the FBI about that assault.

 

Why DOJ Isn’t Making Plea Deals: The Delayed Obstruction and Even More Delayed Assault Charge against Patrick Montgomery

/48 Comments/in /by

On January 7, Patrick Montgomery’s associates started turning him in to authorities. One person forwarded a picture showing him in the Senate chamber and warned him he had saved the picture and would be forwarding it to authorities.

Another associate saw the same picture and IDed Montgomery to the FBI. The associate later shared this email exchange with the FBI.

Tipster: You have been reported to the police in DC as well as the FBI

Mongtomery: I’m not a scared cat or running from anything. . . . Im [sic] so deeply covered by the best Federal Defense lawyers in the country in case you chicken shit cry boys don’t want it takes to defend our freedom from these corrupt politicians.

Montgomery: I didn’t storm the castle violently. My group was let in peacefully by the police we were talking to with respect. We came a[n]d left peacefully before the anarchist and Antifa showed up breaking shit and being hoodlums.

Two more people shared Montgomery’s social media bragging with the FBI.

The same day all his associates starting sharing those boasts, Montgomery deleted his Facebook and Instagram accounts.

It was too late.

Montgomery was arrested on January 17. Four days later, Montgomery was charged with trespassing via Information. And after both sides agreed to a delay on February 5, nothing more seemed to happen.

All the while, though, the FBI continued to investigate based off the pictures Montgomery had posted to Facebook hours after the insurrection, including this one showing him with two other men at the Capitol.

On March 16, the FBI interviewed someone in the middle of a protracted lawsuit with the middle guy in the picture, a guy named Brady Knowlton. That person IDed Knowlton, Montgomery, and also the guy on the right (though the FBI isn’t telling us his identity, for now).

In the interim, the FBI had obtained CCTV video footage of Knowlton, Montgomery, and yet another guy, entering the Capitol via the Upper West Terrace door at 2:35PM on January 6.

At 2:36PM, CCTV caught the three of them in the Rotunda.

By 2:45PM — ten minutes after entering the Capitol — CCTV caught the three of them in the Senate Gallery.

The FBI packaged all that up in an arrest warrant for Knowlton’s arrest — on trespassing and also an obstruction charge, for interrupting the vote count — approved on April 1.

Only after FBI had obtained the warrant for one of Montgomery’s close buddies did they finalize a protective order with him so they could start sharing the evidence that implicated not just him, but also at least one of his buddies. Montgomery signed a protective order on April 5. Knowlton was arrested on April 7. Knowlton’s [three!] attorneys spent much of last week asking the government to present what it believed was exculpatory evidence showing that cops let them walk in to the Capitol the grand jury.

Our Motion alleges that video recordings in the Government’s possession show that some Capitol Police officers and/or other law enforcement agents moved metal barricades aside to allow citizens to move toward the Capitol and welcomed citizens to enter the Capitol Building. Such conduct by the officers and their acquiescence to entry was an implicit authorization to exercise a protected right on January 6, not merely to engage in conduct which is neither protected nor forbidden by the law.

[snip]

Our Motion asks this Court to direct Government counsel to search the inventory of videos and other evidence and produce for Mr. Knowlton and for the grand jury evidence of acquiescence and invitation by Capitol Police and/or other law enforcement agents to enter into the building, particularly if Mr. Knowlton can be identified as being among those who entered under such circumstances, and simply inform the grand jury that this request has been made and that they are permitted to consider that information before passing their judgment. If he did enter under such circumstances, he was exercising a right for which he may not be constitutionally punished. And such evidence is not merely exculpatory, it proves total innocence.

Instead, the government obtained an indictment against Montgomery and Knowlton. Not only did the government add obstruction charges to Montgomery, but they also described Montgomery forcibly assaulting or resisting an MPD officer.

And all that’s before you consider the two other guys included in pictures of them from the day.

I’ve got a hunch that we’re going to be hearing more about these fellows. Far more.

I’ve got a similar hunch that the story of what happened in the Senate chamber is going to get far more interesting in coming days.

Update: Let me clarify my title. For over a month, there has been a lot of reporting about imminent plea deals for all the people who, like Montgomery, were “just” MAGA tourists. And that’s what Montgomery seemed to be in all our tracking lists since then.

When the Knowlton arrest was rolled out, it became clear that Montgomery had some accomplices (but at least one and probably two remain unidentified). It also became clear — though DOJ has not presented what evidence they have of it — that both were deliberately trying to delay the vote count. That’s not surprising by itself — with maybe one exception, everyone who made their way to the Senate Chamber got charged with obstruction. But the indictment against the two makes it clear that Montgomery also engaged in some kind of violent resistance to cops.

There are a number of reasons I think there’s more to this. But one of those is the way they treated the investigation of Knowlton (including finding someone he was in a multi-year lawsuit with to ID him, which is harsh), and the way they used his charging to add the assault charge to the Montgomery indictment.

Update: Fixed which person was Montgomery in the threesome picture.