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John Lauro’s False Claims about Assaults “at the Behest” of Donald Trump

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As I predicted, John Lauro misrepresented the timing of prosecutors’ request for a limited gag on Trump’s violent speech. Lauro presents his response as if DOJ first asked to limit Trump’s violent speech on September 15 in docket entry 57, and not (in sealed form, to which Trump objected, on September 5) at docket 47.

President Trump respectfully submits this response in opposition to the prosecution’s motion to impose unconstitutional prior restraints on President Trump’s political speech. (the “Motion,” Doc. 57, seeking the “Proposed Gag Order,” Doc. 57-2).

Here’s the handy dandy annotated docket I did so NYT journalists could understand the true timing (even if they didn’t note their corrections once they did belatedly understand it).

One reason Lauro’s manufactured misrepresentation about the timing of the motion — September 5 versus September 15 — matters is because he’s now falsely suggesting that DOJ only issued this request after Biden got a bunch of bad polling data.

At bottom, the Proposed Gag Order is nothing more than an obvious attempt by the Biden Administration to unlawfully silence its most prominent political opponent, who has now taken a commanding lead in the polls. Indeed, this very Motion came on the heels of adverse polling for President Biden.

To be sure, Lauro must recognize what rank bullshit this claim is, given that he doesn’t cite the polling in question (which probably is meant to invoke the outlier WaPo poll of this week). This is designed to work for the Federalist and Fox set, not for Judge Chutkan.

But the timing matters for another reason.

Probably because Lauro wants to set up a future argument balancing election-related speech against defendant-related restrictions, he suggests DOJ is doing this primarily to silence criticism of Jack Smith, and not to protect witnesses, prosecutors, and Judge Chutkan herself.

[T]he prosecution complains that President Trump’s political statements “undermine confidence in the criminal justice system,” which it asserts somehow justifies the Proposed Gag Order. Motion at 2, 6, 8, 15. The prosecution cites no authority in support of this bizarre claim. Nor can it. As the Supreme Court has repeatedly emphasized, “speech critical of the exercise of the State’s power lies at the very center of the First Amendment.” Gentile, 501 U.S. at 1034; New York Times Co. v. Sullivan, 376 U.S. 254, 273 (1964) (“Criticism of their official conduct does not lose its constitutional protection merely because it is effective criticism and hence diminishes their official reputations.”). This includes criticism of the Court and the Special Counsel.

When Lauro finally gets around to dealing with the violent threats Trump has issued, he ignores the bulk of the examples DOJ provided, instead focusing exclusively on the one Trump’s team had already addressed.

[N]o witness has suggested that he or she will not testify because of anything President Trump has said. To the contrary, witnesses appear eager to share their expected testimony with the media and will undoubtedly testify at a potential trial, if called to do so.7 Nor has any witness suggested that President Trump’s protected statements have “influenc[ed] [his or her] testimony,” as the prosecution baselessly suggests. Motion at 15.

This is entirely unsurprising, as President Trump has never called for any improper or unlawful action. Quite the opposite, the prosecution’s cited posts show that President Trump intends to redress the unfairness of this proceeding through legitimate means. This includes, for example, filing motions with the Court—a form of relief that President Trump has every right to pursue and talk about. This is a far cry from the type of “true threat” the prosecution would need to show to justify a prior restraint. Virginia v. Black, 538 U.S. 343, 360 (2003) (“Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.”).8

Unable to identify any instance where President Trump uttered any threat, the prosecution points to others, claiming President Trump “knows that when he publicly attacks individuals and institutions, he inspires others to perpetrate threats and harassment against his targets.” Motion at 3. Again, the prosecution offers no evidence of any causal connection between his speech and the alleged unlawful acts of others to support this meritless claim.

7 Two “potential witnesses” the prosecution does not want President Trump speaking about, for example, are former Attorney General Bill Barr and former Vice President Mike Pence. Both have written books about their tenure with President Trump and the latter is currently running for president. See, e.g., Geoff Bennett, Bill Barr: Trump Committed a “Grave Wrongdoing” in Jan. 6 Case, PBS NEWSHOUR, Aug. 3, 2023. Neither shies away from a hearty public debate with President Trump. Both were at the very top of government and it is absurd to think that they would be intimidated by social media posts. Others the prosecution identifies as “harassed,” are likewise current and former government officials who have made politics, for all its discord and discourse, a large part of their lives.

8 The prosecution once again cites President Trump’s August 4, 2023, Truth Social post; however, as previously explained, Doc. 14 at 7–8 n.8, that post did not concern this case. See Nick Robertson, Trump campaign defends threatening social media posts as free speech, The Hill (August 5, 2023) (quoting a Trump campaign statement that “[t]he Truth post cited is the definition of political speech, and was in response to the RINO, China-loving, dishonest special interest groups and Super PACs, like the ones funded by the Koch brothers and the Club for No Growth.”).

In today’s environment, this Court could easily take judicial notice that “[t]he language of the political arena . . . is often vituperative, abusive, and inexact,” Watts, 394 U.S. at 708 (citations omitted), and even “very crude [or] offensive method[s] of stating a political opposition” are not true threats. Id.

Finally, the prosecution raised (and President Trump addressed), this same post in connection with its motion for a protective order. Doc. 14 at 7–8 n.8. Despite having ample opportunity to dispute President Trump’s explanation, including in a reply brief, Doc. 15, and at oral argument, Doc. 29, the prosecution chose not to do so. Now, the prosecution once again tries to revive this debunked position in support of its Motion. The Court should accord such unpersuasive arguments no weight. [my emphasis]

Lauro ignores the multiple cases, cited in prosecutors’ filing, where people told Trump directly that his incitement had ratcheted up threats against people like Jeff Duncan, Chris Krebs, and Ruby Freeman. He ignores prosecutors’ citation of Trump bragging about the way his followers respond to Trump.

As he acknowledged in a televised town hall on May 10, 2023, his supporters listen to him “like no one else.”

Perhaps more importantly, Lauro ignores something he has already ignored, in his reply to his own motion to recuse Tanya Chutkan.

As I noted, by filing a motion to recuse based off things Judge Chutkan said when January 6 defendants blamed Trump for their actions, Trump invited prosecutors to lay out the many more times defendants had done just that. Not only did prosecutors provide eight other examples where defendants already sentenced by Chutkan blamed Trump for their actions, DOJ laid out something that Robert Palmer said of his own actions on January 6: That he went to the Capitol “at the behest” of Trump and took action to prevent the certification of the vote because of the false claims Trump had made.

On December 17, 2021, the Court sentenced Robert Scott Palmer, an individual who, on January 6, 2021, after attending the former president’s remarks at the Ellipse and while wearing a “Florida for Trump” hat, “threw a wooden plank at” police officers; “sprayed the contents of a fire extinguisher at the officers until it was empty, and then threw the fire extinguisher” at them; and “assaulted another group of law enforcement officers with a 4-5 foot pole,” which he threw “like a spear at the officers.” United States v. Palmer, 21-cr-328, ECF 30, at 10, 2 (Govt. Sentencing Mem.); id., ECF No. 23, at 3 (D.D.C. Oct. 4, 2021) (Statement of Offense). Palmer was charged with, and pled guilty to, assaulting, resisting, or impeding certain officers using a dangerous weapon, in violation of 18 U.S.C. §§ 111(a) and (b). Id., ECF No. 24 at 1 (D.D.C. Oct. 4, 2021) (Plea Agreement).

In a sentencing memorandum filed before his hearing, Palmer’s attorney asserted that he had gone to the Capitol “at the behest of” the defendant and had been convinced by individuals, including the defendant, that the election was fraudulent and that Palmer needed to take action to stop the presidential transition. Id., ECF No. 31 at 8 (D.D.C. Dec. 13, 2021) (Def. Sentencing Mem.). [my emphasis]

John Lauro is lying when he claims that there is “no evidence of any causal connection between his speech and the alleged unlawful acts of others.” Lauro himself elicited that evidence. And the evidence is that, according to Robert Palmer, because of the false claims Trump and others told about the election, Palmer went to the Capitol on January 6 “at the behest of” Donald Trump, and serially assaulted several cops.

Trump’s reply ignored the substance of Palmer’s claims; it even dropped all mention of the Palmer case. Trump thereby left uncontested DOJ’s representation of Palmer’s claim that he did what he did “at the behest” of Trump.

Thus far, in the case against Trump, DOJ has been rather reserved about the dockets and dockets full of evidence that rioters believed they had been ordered by Trump to do what they did. The indictment itself shows that Trump’s several days of pressure — including his 2:24PM tweet — resulted in direct threats from rioters to Pence.

111. At 2:24 p.m., after advisors had left the Defendant alone in his dining room, the Defendant issued a Tweet intended to further delay and obstruct the certification: “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!”

112. One minute later, at 2:25 p.m., the United States Secret Service was forced to evacuate the Vice President to a secure location.

113. At the Capitol, throughout the afternoon, members of the crowd chanted, “Hang Mike Pence!”; “Where is Pence? Bring him out!”; and “Traitor Pence!”

Yet, DOJ has not made it anywhere explicit that evidence in the case of dozens, if not hundreds, of Jnauary 6 defendants make it clear that these threats to Pence arose directly from Trump’s statements. And in their motion for a gag order, DOJ did not tie the threats against Pence Trump elicited on January 6 to one he has made recently that they included in the motion.

But because John Lauro made it an issue in his recusal motion, DOJ has provided crystal clear evidence of one case where someone believed he was taking action — violent assaults against cops — “at the behest of Trump.”

John Lauro wanted it this way — he wanted to create the false illusion that whatever gag Chutkan might impose came only after he accused her of being a biased Black Woman. But in the process, he himself elicited proof that Trump’s statements to lead directly to violence.

On Recusal, Give Trump the Evidentiary Hearing He Demands!

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There are a number of fairly insane claims made in Trump’s reply seeking Judge Tanya Chutkan’s recusal.

Trump scolds that an impartial judge should express no opinion.

2 Consistent with the presumption of innocence and due process, an impartial court would ordinarily avoid stating any opinion regarding a third party’s guilt or innocence until that party has received an opportunity to present a defense. See United States v. Microsoft, 253 F.3d 34, 114 (D.C. Cir. 2001).

But that is precisely what Chutkan did when she said she “I have my opinions, but they are not relevant:” she didn’t express her opinion. By Trump’s own definition, Chutkan is an impartial judge!

Trump makes a very narrow argument that the eight additional defendants Chutkan sentenced who attributed their actions to Trump, mentioned by the prosecution, did not say Trump directed them to engage in violence, enter the Capitol, or interfere with the proceedings (I included that footnote in this post).

1 None of the excerpts cited in footnote 1 of the Response claim that President Trump directed or encouraged anyone to enter the Capitol, undertake violence, or interfere with proceedings at the Capitol. Of course, no such evidence exists. The defendants in these other cases obviously sought to explain the circumstances of their conduct, but that had no relevance to whether President Trump should be charged. That issue was never before the Court prior to this case. Therefore, the only reasonable conclusion—and the very one that the prosecution consciously avoids—is that Judge Chutkan formed her disqualifying opinions from information outside of the courtroom.

Even ignoring that several of them did say Trump told them to go to the Capitol, that’s a distraction. As prosecutors have shown, one of the two defendants that Trump himself raised, Robert Palmer, literally said that he went to the Capitol “at the behest” of Trump, where — because he had been persuaded by Trump and others he needed to prevent the transition of power — he proceeded to serially assault cops. Trump simply ignores that one of the two cases he himself raised did precisely that.

But the most batshit claim — one that I hope backfires wildly — is the claim that when Judge Chutkan said, “I’ve seen video” during the Christine Priola sentencing, there was no video in evidence before her.

Similarly, Judge Chutkan’s statement that President Trump “remains free to this day,” Motion, Ex. A at 29:17–30:3, had no factual or legal relevance to the matter before her. That conclusion was formed, according to Judge Chutkan, based upon unspecified “videotapes” and “footage” that the prosecution has not established were in evidence and appear not to be. Id. (“I see the videotapes. I see the footage of the flags and the signs that people were carrying and the hats they were wearing and the garb.”). But even if they were in the record of the Priola case, they could hardly support a conclusion that President Trump should be charged.

In addition to the sentencing memo DOJ submitted for Priola, they formally noticed the following videos:

1. Government Exhibit 1 is a video approximately 26 seconds in length that shows the crowd behind the barricades on the east side of the Capitol. People in the crowd can be heard chanting, “Stop the steal.” Priola’s sign can be seen in the crowd.

2. Government Exhibit 2 is a video approximately 1 minute and 23 seconds in length that shows the rioters outside the East Rotunda (Columbus) doors, including some rioters reacting to pepper gas. Priola and her sign can be seen while she is standing about 15- 20 feet from the entrance. People in the crowd can be heard chanting, “USA, USA.”1

3. Government Exhibit 3 is a video approximately 3 minutes in length that shows rioters outside the East Rotunda doors attempting to enter the Capitol building. Priola’s sign can be seen in the crowd outside. The video also shows the doors being forced open from the inside and Priola (now inside the building) talking to another rioter on camera and walking down the corridor. People in the crowd can be heard chanting, “Who’s our President? Trump!”; yelling, “Tear it down”; and later chanting, “Defend your Constitution. Defend your liberty.”

4. Government Exhibit 4 is a video approximately 26 seconds in length that shows the breach of the East Rotunda doors. Priola’s sign can be seen outside the building through the open doors.

5. Government Exhibit 5 is a video approximately 2 minutes and 30 seconds in length that shows the rioters breaching the East Rotunda doors. Priola can be seen with her sign soon after she enters the building.

6. Government Exhibit 72 is a video approximately 1 minutes and 28 seconds in length that shows the rioters, including Priola, walking down the east corridor inside the Capitol Building. It also shows Priola holding her sign up to one of the windows and tapping on the glass to get the attentions of rioters outside. Rioters can be heard chanting, “Defend your Constitution. Defend your liberty.” and “Who’s house? Our house.”

7. Government Exhibit 8 is a video approximately 14 seconds in length that shows rioters, including Priola, on the Senate Chamber floor. Priola can be seen and heard talking on her cell phone.

1 The government’s sentencing memorandum incorrectly stated that the crowd could be heard chanting “Stop the steal” and “Who’s our President? Trump!” during this video. ECF No. 56 at 10. [my emphasis]

More importantly, there’s all the other video Chutkan had seen by October 28, 2022.

Do you know how insane it is for someone to tell Judge Tanya Chutkan that by October 28, 2022, the date of Priola’s sentencing, she had not seen video evidence on which she could form an opinion about how central Trump was to January 6? Do you have any idea how many hundreds of hours of video DC judges like Chutkan, pertaining to Priola in Chutkan’s case, but also pertaining to the series of assault defendants whose detention proceedings she had presided over and defendants sentenced before Priola, had seen by that point?

Trump made the argument that by October 28, 2022, Judge Tanya Chutkan had not seen sufficient evidence about January 6 to form an opinion about Trump’s role in the attack. If I were Judge Chutkan, I’d order the hearing Trump claims he wants, refuse to waive his appearance, and force him, his attorneys, and the journalists only beginning to pay attention to January 6 because Trump has been charged to review the video of the attack she had sat through by October 2022.

As one example, Chutkan presided over several spectacular assault cases, including one where a former Marine who had attended the TCF Center mob in Detroit after the election brought his hockey stick to the Capitol and used it to beat a cop, one of the many spectacularly brutal assaults that happened that day.

Trump claims that during the year and a half of January 6 cases she had presided over by October 28, 2022, Chutkan had not seen any evidence from which she could form an opinion about the event. By all means, let’s put the evidence she had seen in the record.

By Asking for Tanya Chutkan’s Recusal, Trump Invited a Lesson in His Centrality to January 6

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Trump’s motion for Tanya Chutkan to recuse was not designed to work. Rather, it was designed as a messaging vehicle, to establish the basis for Trump to claim that a Black Judge was biased against him so he can better use it to discredit rule of law and as a campaign and fundraising vehicle.

Because Trump’s motion was primarily a messaging vehicle, the — legally apt — messaging with which DOJ responded is of some interest.

Invited to do so by Trump, DOJ laid out how central Trump is to the thousand other January 6 prosecutions.

Invited to do so by Trump, for example, DOJ provided eight other times — in addition to the cases of Robert Palmer and Christine Priola cited in the recusal motion — where defendants before Judge Chutkan have implicated Trump in their actions.

This Court, like all courts in this District, has presided over dozens of criminal cases related to January 6. And this Court, like all courts in this District, gained knowledge about the events of January 6 and insight about the persons charged based on its daily administration of those cases. For instance, the Court learned that numerous individuals charged with January 6 crimes attempted to minimize their actions and spread blame to others, including to defendant Trump and to the mob that each rioter joined at the Capitol. Indeed, the Court regularly heard variations of such arguments from other defendants, in the form of sentencing memoranda and allocutions, before similar claims were made by the defendants in the two sentencing hearings on which the defendant bases his claim of bias.1

1 See United States v. Bauer, 21-cr-49, ECF No. 38 at 3 (D.D.C. Oct. 6, 2021) (Def. Sentencing Mem.) (arguing that Bauer “only decided to turn from the Ellipse and head towards the Capitol when then-President Trump directed the crowd to proceed in that direction” and then followed the group); United States v. Hemenway, 21-cr-49, ECF No. 39 at 2 (D.D.C. Oct. 6, 2021) (Def. Sentencing Mem.) (arguing that Hemenway decided “to take part in the political rally on the Ellipse” and got “caught up in the group mentality of the crowd that entered the Capitol”); United States v. Bissey, 21-cr-165, ECF No. 29 at 17 (D.D.C. Oct. 12, 2021) (Sentencing Tr.) (defense attorney arguing that Bissey had minimal role on January 6 and “did not come to D.C. with any intention other than supporting her president”); United States v. Miller, 21-cr-226, ECF No. 52 at 4 (D.D.C. Dec. 8, 2021) (Def. Sentencing Mem.) (arguing that “[Miller] had absolutely no expectation or desire to overthrow the government. Rather, she was supporting the President in what he claimed were legitimate efforts to claim victory in the Presidential election.”); United States v. Perretta, 21-cr-539, ECF No. 55 at 2 (D.D.C. Jan. 4, 2022) (Def. Sentencing Mem.) (arguing that Perretta “attended the ‘Save America’ political rally, where then-President Trump encouraged listeners to march to the Capitol to make their voices heard” and then went to the Capitol with thousands of other individuals from the Ellipse); United States v. Ehmke, 21-cr-29, ECF No. 30 at 2-5, 8-9 (D.D.C. May 6, 2022) (Def. Sentencing Mem.) (arguing that Ehmke had a minor role and that others, “including the former president, the rally’s organizers and speakers, and other nefarious, organized groups . . . arguably bear much greater responsibility”); United States v. Ponder, 21-cr-259, ECF No. 58 at 21-22 (D.D.C. Jul. 26, 2022) (Sentencing Tr.) (Ponder asserting that he marched from Ellipse to Capitol “with the intentions on a peaceful protest. However, things had spiraled out of control” and he “got caught up in it.”); United States v. Cortez, 21-cr-317, ECF No. 80 at 38 (D.D.C. Aug. 31, 2022) (Sentencing Tr.) (defense attorney arguing that Cortez was “being told these things by the president, you need to save your country, and he’s trying to do something right”). [my emphasis]

Again, these are just defendants Judge Chutkan has already sentenced. The footnote conveys how routine it is for defendants, before every single DC judge, to blame Trump for their role in assaulting the Capitol.

Invited to do so by Trump, DOJ laid out how Christine Priola wore Trump merch as she surged through the East door alongside the Oath Keepers and Joe Biggs, and then helped occupy the Senate floor on January 6.

On October 28, 2022, the Court sentenced Christine Priola, who on January 6, 2021, surged with other rioters into the Capitol and onto the Senate floor, “carrying a large sign reading, ‘WE THE PEOPLE TAKE BACK OUR COUNTRY’ on one side and ‘THE CHILDREN CRY OUT FOR JUSTICE’ on the other,” United States v. Priola, 22-cr-242, ECF No. 65 at 3 (D.D.C. July 26, 2022) (Statement of Offense), and wearing pants with the phrase, “MAKE AMERICA GREAT AGAIN,” id., ECF No. 56 at 13, 16 (D.D.C. Oct. 21, 2022) (Govt. Sentencing Mem.). Priola was charged with, and pled guilty to, obstructing an official proceeding, in violation of 18 U.S.C. § 1512(c)(2). Id., ECF No. 66 at 2 (D.D.C. Feb. 21, 2023) (Sentencing Tr.)

In her sentencing memorandum, Priola, too, laid the groundwork for spreading the blame to others, noting that “[a]fter the presidential election, Donald Trump . . . and his inner circle began spreading the word that the election was ‘stolen’ from him by Democrats and others,” with claims “made on media sources, as well as by the President himself, that the election system had been corrupted and that the integrity of the election should be questioned.” Id., ECF No. 57 at 3 (D.D.C. Oct. 21, 2022) (Def. Sentencing Mem.). Priola’s sentencing memorandum then sought leniency for Priola in part because she “played no role of importance” at the Capitol, and had she not been there, “there wouldn’t be one change in what transpired.” Id. at 14.

At her sentencing hearing, Priola likewise explained that, at the time of her criminal conduct, she believed that the election had been stolen and that “certain politicians or groups have, like, taken over things that maybe weren’t supposed to be.” Id., ECF No. 66 at 26 (D.D.C. Feb. 21, 2023) (Sentencing Tr.). [my emphasis]

Because Priola raised Trump in her sentencing submission, DOJ explained, binding precedent required Chutkan to respond to it.

Similarly, on Trump’s invitation, DOJ laid out how Palmer claimed he went to the Capitol “at the behest of” Trump where, while wearing a Florida for Trump hat, he serially assaulted cops defending the Capitol.

On December 17, 2021, the Court sentenced Robert Scott Palmer, an individual who, on January 6, 2021, after attending the former president’s remarks at the Ellipse and while wearing a “Florida for Trump” hat, “threw a wooden plank at” police officers; “sprayed the contents of a fire extinguisher at the officers until it was empty, and then threw the fire extinguisher” at them; and “assaulted another group of law enforcement officers with a 4-5 foot pole,” which he threw “like a spear at the officers.” United States v. Palmer, 21-cr-328, ECF 30, at 10, 2 (Govt. Sentencing Mem.); id., ECF No. 23, at 3 (D.D.C. Oct. 4, 2021) (Statement of Offense). Palmer was charged with, and pled guilty to, assaulting, resisting, or impeding certain officers using a dangerous weapon, in violation of 18 U.S.C. §§ 111(a) and (b). Id., ECF No. 24 at 1 (D.D.C. Oct. 4, 2021) (Plea Agreement).

In a sentencing memorandum filed before his hearing, Palmer’s attorney asserted that he had gone to the Capitol “at the behest of” the defendant and had been convinced by individuals, including the defendant, that the election was fraudulent and that Palmer needed to take action to stop the presidential transition. Id., ECF No. 31 at 8 (D.D.C. Dec. 13, 2021) (Def. Sentencing Mem.). Two paragraphs later in the memorandum, Palmer’s attorney argued that the Court should, as a mitigating factor, “consider that the riot almost surely would not have occurred but for the financing and organization that was conducted by persons unconnected to Mr. Palmer who will likely never be held responsible for their relevant conduct.” See id. at 8-9. [my emphasis]

Because Palmer blamed Trump for his actions in his sentencing package, DOJ explained, binding precedent required Chutkan to respond to it.

Even before it laid out how the claims of defendants obligated Chutkan to address their claims that Trump caused them to do what they did, DOJ laid out the precedents that apply to intrajudicial comments about related cases, a much higher standard for recusal than the precedents Trump invoked. At Trump’s invitation, then, DOJ cited Watergate, where the DC Circuit did not find that Judge John Sirica should have recused from the Haldeman trial because he had, during the burglars’ trial, correctly judged that the conspiracy extended well beyond those men.

[T]he Supreme Court has held that where a recusal motion rests on statements made in a judicial setting and reflect “opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings,” recusal will be warranted “only in the rarest circumstances” where the comments “display a deepseated favoritism or antagonism that would make fair judgment impossible.” Id. at 555. After all, “opinions held by judges as a result of what they learned in earlier proceedings” are “normal and proper,” and “not subject to deprecatory characterization as ‘bias’ or ‘prejudice.’” Id. at 551; see Belue v. Leventhal, 640 F.3d 567, 573 (4th Cir. 2011) (“The high bar set by Liteky for predispositional recusals makes good sense. If it were otherwise—if strong views on a matter were disqualifying—then a judge would hardly have the freedom to be a judge.”).

This higher standard applies equally when a court’s intrajudicial statements were made in separate proceedings, including proceedings in which the defendant was not a party. The D.C. Circuit made this clear in its decision in United States v. Haldeman, 559 F.2d 31 (D.C. Cir. 1976) (en banc). There, defendants sought recusal of the judge presiding over numerous, separate Watergate-related matters, in part based on statements the judge had made during an earlier, separate trial in which, among other things, he “expressed a belief that criminal liability extended beyond the seven persons there charged.” Id. at 131-32 & n.293. The Circuit found that recusal was not warranted because the grounds for the claim were “judicial acts” including “prior judicial rulings . . . or the exercise of related judicial functions.” Id. at 133-34. The Circuit further stated that the “disabling prejudice” necessary for recusal “cannot be extracted from dignified though persistent judicial efforts to bring everyone responsible for Watergate to book.” Id.

At Trump’s invitation, DOJ likened the January 6 rioters to Watergate burglars directed by those trying to help the President retain power.

And, at Trump’s invitation, DOJ recalled a more recent DC Circuit opinion finding that far stronger intrajudicial statements also did not require recusal. At Trump’s invitation, DOJ recalled how Trump’s people had started selling out the country even before being sworn in.

On the other side of the ledger are countless cases in which recusal based on judicial comments was deemed unwarranted—even based on comments that, unlike this Court’s comments on which the defendant bases his motion, directly criticize a defendant. For instance, recently in this District, a judge told a defendant at a hearing, “Arguably, you sold your country out. . . . I’m not hiding my disgust, my disdain for this criminal offense.” In re Flynn, 973 F.3d 74, 83 (D.C. Cir. 2020) (en banc) (per curiam). The D.C. Circuit found that these statements did not meet the Liteky test, stating, “the District Judge was not simply holding forth on his opinions; rather, each of the statements to which Petitioner objects was plainly made in the course of formal judicial proceedings over which he presided—not in some other context.”

Trump wants his January 6 trial to be messaging and fundraising vehicle.

But that may serve as little more than an invitation for DOJ to lay out just how deeply implicated he is in the entire assault on the Capitol.

Todd Blanche Confuses Aileen Cannon’s Prior Trump Reversal with Tanya Chutkan’s Individualized Guilt

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John Lauro is the Trump lawyer who submitted and signed the motion for recusal in Trump’s January 6 case, and so virtually all commentators are attributing the motion to him. But Todd Blanche also appears on the document.

That means one of Trump’s lawyers from the stolen documents case, in which Aileen Cannon — confirmed in the period after Trump lost the election and cozy with Leonard Leo — chose not to recuse herself after a blistering reversal over her earlier decision to butt in last summer, in which Aileen Cannon has done nothing (nothing public, at least) to preserve the Sixth Amendment rights of Trump’s co-defendants, but has instead served the interests of the Trump-paid lawyers representing them, has remained silent about any conflict in that case but signed onto a claim of conflict with Tanya Chutkan.

There is an overwhelming public interest in ensuring the perceived fairness of these proceedings. In a highly charged political season, naturally all Americans, and in fact, the entire world, are observing these proceedings closely. Only if this trial is administered by a judge who appears entirely impartial could the public ever accept the outcome as justice.

Todd Blanche’s willingness to sign onto this motion only underscores the bad faith of it.

The substance of the claimed conflict is remarkably thin: In the sentencing hearings of Robert Palmer and Christine Priola, Chutkan said something about those who planned the riot. Between the two hearings — the first in December 2021 and the second in October 2022 — Trump’s lawyers claim they show that Chutkan has already formed an opinion about Trump’s guilt, even while they acknowledge that Chutkan’s language addresses claims of incitement with which Trump has not been charged.

These are cherry picks. From Palmer’s for example, Trump’s lawyers found a line in which Chutkan said she had opinions about whether those who planned the riot should be charged, even while she said her opinions are not relevant.

He went to the Capitol because, despite election results which were clear-cut, despite the fact that multiple court challenges all over the country had rejected every single one of the challenges to the election, Mr. Palmer didn’t like the result. He didn’t like the result, and he didn’t want the transition of power to take place because his guy lost. And it is true, Mr. Palmer — you have made a very good point, one that has been made before — that the people who exhorted you and encouraged you and rallied you to go and take action and to fight have not been charged. That is not this court’s position. I don’t charge anybody. I don’t negotiate plea offers. I don’t make charging decisions. I sentence people who have pleaded guilty or have been convicted. The issue of who has or has not been charged is not before me. I don’t have any influence on that. I have my opinions, but they are not relevant.

***

So you have a point, that the people who may be the people who planned this and funded it and encouraged it haven’t been charged, but that’s not a reason for you to get a lower sentence.

This is a colloquy that goes on in many January 6 sentencing hearings, because many defendants — up to and including Enrique Tarrio and Joe Biggs — like to blame Trump for their woes. After that happens, whatever judge is presiding, whether appointed by a Republican or Democrat, notes that people are still responsible for their own actions.

This is, in fact, a pretty mild version, even among some Republican appointees.

But Trump’s team ignored Judge Chutkan’s more general commentary about how everyone should treat others with more humanity.

I feel certain that if people would expose themselves to a variety of opinions and sources of information, we might not have had January 6th. But people get very siloed and listen to an echo chamber of information and opinion, and you get a very warped view of what’s really going on in the world; and that may be part of it, but in doing so, you fail to see other people as human beings. And that is one of the things I see here as a judge, is there is a failure to acknowledge other people’s humanity.

From the Priola sentencing, Trump’s lawyers focused on Chutkan’s observation that the person to whom rioters were loyal remained free.

[T]he people who mobbed that Capitol were there in fealty, in loyalty, to one man — not to the Constitution, of which most of the people who come before me seem woefully ignorant; not to the ideals of this country; and not to the principles of democracy. It’s a blind loyalty to one person who, by the way, remains free to this day.

This is remarkably thin gruel on which to hang a claim that Chutkan is biased against Trump but not Trump appointed Judges Dabney Friedrich or Tim Kelly, who’ve engaged in similar colloquies.

And it seems tactical. It was coming at some point, but Trump’s team has, after remaining silent for 42 days after this case was assigned to Chutkan, suddenly asked her to assess her own biases in expedited fashion, before ruling on the pending motion about Trump’s own threats against Judge Chutkan and others.

Additionally, given the overriding public interest in ensuring the appearance of fairness in this proceeding, President Trump requests the Court consider this Motion on an expedited basis and, pending resolution, withhold rulings on any other pending motion.

This is a tactical and cynical motion. And Todd Blanche’s participation in it makes it crystal clear that Trump doesn’t give a flying rat’s ass about the bias of Cannon or any appearance of bias they can wring out of Chutkan’s prior comments.

Rather, they’re doing this to claim that her future attempts to preserve the integrity of this proceeding — including to minimize death threats from Trump’s own supporters — instead itself evinces bias on her part.

Update: Here’s the full Priola sentencing transcript.

DOJ Is Treating January 6 as an Act of Terrorism, But Not All January 6 Defendants Are Terrorists

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It turns out that Ted Cruz is (partially) right: Some of the people who participated in January 6 are being treated as terrorists. But not all January 6 participants are terrorists.

Though, predictably, Cancun Ted misstates which insurrectionists have been or might be labeled as terrorists — in part out of some urgency to avoid calling himself or Tucker Carlson as such.

While some defendants accused of assaulting cops will, I expect, eventually be slapped with a terrorism enhancement at sentencing, thus far, the people DOJ has labeled terrorists have been key members of the militia conspiracies, including a number who never came close to assaulting a cop (instead, they intentionally incited a shit-ton of “normies” to do so).

Ted Cruz wants to treat those who threatened to kill cops as terrorists, but not those who set up the Vice President to be killed.

The problem is, even the journalists who know how domestic terrorism works are giving incomplete descriptions of how it is working in this investigation. For example, Charlie Savage has a good explainer of how domestic terrorism works legally, but he only addresses one of two ways DOJ is leveraging it in the January 6 investigation. Josh Gerstein does, almost as an aside, talk about how terrorism enhancements have already been used (in detention hearings), but then quotes a bullshit comment from Ethan Nordean’s lawyer to tee up a discussion of domestic terrorism as a civil rights issue. More importantly, Gerstein suggests there’s a mystery about why prosecutors haven’t argued for a terrorism enhancement at sentencing; I disagree.

As numerous people have laid out, domestic terrorism is defined at 18 USC 2331(5):

(5) the term “domestic terrorism” means activities that—

(A) involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State;

(B) appear to be intended—

(i) to intimidate or coerce a civilian population;

(ii) to influence the policy of a government by intimidation or coercion; or

(iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and

(C) occur primarily within the territorial jurisdiction of the United States; and

As both Savage and Gerstein point out, under 18 USC 2332b(g)(5) there are a limited number of crimes that, if they’re done, “to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct,” can be treated as crimes of terrorism. One of those, 18 USC 1361, has been charged against 40-some January 6 defendants for doing over $1,000 of damage to the Capitol, including most defendants in the core militia conspiracies. Another (as Savage notes), involves weapons of mass destruction, which likely would be used if DOJ ever found the person who left bombs at the RNC and DNC. Two more involve targeting members of Congress or Presidential staffers (including the Vice President and Vice President-elect) for kidnapping or assassination.

If two or more persons conspire to kill or kidnap any individual designated in subsection (a) of this section and one or more of such persons do any act to effect the object of the conspiracy, each shall be punished (1) by imprisonment for any term of years or for life,

There’s very good reason to believe that DOJ is investigating Oath Keeper Kelly Meggs for conspiring to assassinate Nancy Pelosi, starting on election day and continuing as he went to her office after breaking into the Capitol, so it’s not unreasonable to think we may see these two laws invoked as well, even if DOJ never charges anyone with conspiring to assassinate Mike Pence.

Being accused of such crimes does not, however, amount to being charged as a terrorist. The terrorist label would be applied, in conjunction with a sentencing enhancement, at sentencing. But it is incorrect to say DOJ is not already treating January 6 defendants as terrorists.

DOJ has been using 18 USC 1361 to invoke a presumption of detention with militia leaders and their co-conspirators, starting with Jessica Watkins last February. Even then, the government seemed to suggest Watkins might be at risk for one of the kidnapping statutes as well.

[B]ecause the defendant has been indicted on an enumerated offense “calculated to influence or affect the conduct of government,” the defendant has been charged with a federal crime of terrorism as defined under 18 U.S.C §§ 2332b(g)(5). Therefore, an additional basis for detention under 18 U.S.C § 3142(g)(1) is applicable. Indeed, the purpose of the aforementioned “plan” that the defendant stated they were “sticking to” in the Zello app channel became startlingly clear when the command over that same Zello app channel was made that, “You are executing citizen’s arrest. Arrest this assembly, we have probable cause for acts of treason, election fraud.” Id. [my emphasis]

DOJ has invoked 18 USC 1361 as a crime of terrorism for detention disputes with the central Proud Boys conspirators as well. It’s unclear how broadly DOJ might otherwise do this, because another key figure who is an obvious a candidate for such a presumption, Danny Rodriguez (accused of tasing Michael Fanone and doing damage to a window of the Capitol), didn’t fight detention as aggressively as the militia members have, presumably because his alleged actions targeting Fanone clearly merit detention by themselves. That said, I believe his failed attempt to suppress his FBI interview, in which he admitted to helping break a window, was an attempt to limit his exposure to a terrorism enhancement.

We have abundant evidence that DOJ is using the threat of terrorism enhancement to get people to enter cooperation agreements. Six of nine known cooperators thus far (Oath Keepers Graydon Young, Mark Grods, Caleb Berry, and Jason Dolan, Proud Boy Matthew Greene, and SoCal anti-masker Gina Bisignano) have eliminated 18 USC 1361 from their criminal exposure by entering into a cooperation agreement. And prosecutor Alison Prout’s description of the plea deal offered to Kurt Peterson, in which he would trade a 210 to 262 month sentencing guideline for 41 to 51 months for cooperating, only makes sense if a terrorism enhancement for breaking a window is on the table.

You can’t say that DOJ is not invoking terrorism enhancements if most cooperating witnesses are trading out of one.

For those involved in coordinating the multi-pronged breaches of the Capitol, I expect DOJ will use 18 USC 1361 to argue for a terrorism enhancement at sentencing, which is how being labeled as a terrorist happens if you’re a white terrorist.

But there is another way people might get labeled as terrorists at sentencing, and DOJ is reserving the right to do so in virtually all non-cooperation plea deals for crimes other than trespassing. For all pleas involving the boilerplate plea deal DOJ is using (even including those pleading, as Jenny Cudd did, to 18 USC 1752, the more serious of two trespassing statutes), the plea deal includes this language.

the Government reserves the right to request an upward departure pursuant to U.S.S.G. § 3A1.4, n. 4.

That’s a reference to the terrorism enhancement included in sentencing guidelines which envisions applying a terrorism enhancement for either (A) a crime involving coercion other than those enumerated under 18 USC 2332b or (B) an effort to promote a crime of terrorism.

4. Upward Departure Provision.—By the terms of the directive to the Commission in section 730 of the Antiterrorism and Effective Death Penalty Act of 1996, the adjustment provided by this guideline applies only to federal crimes of terrorism. However, there may be cases in which (A) the offense was calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct but the offense involved, or was intended to promote, an offense other than one of the offenses specifically enumerated in 18 U.S.C. § 2332b(g)(5)(B); or (B) the offense involved, or was intended to promote, one of the offenses specifically enumerated in 18 U.S.C. § 2332b(g)(5)(B), but the terrorist motive was to intimidate or coerce a civilian population, rather than to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct. In such cases an upward departure would be warranted, except that the sentence resulting from such a departure may not exceed the top of the guideline range that would have resulted if the adjustment under this guideline had been applied. [my emphasis]

The point is, you can have a terrorism enhancement applied even if you don’t commit one of those crimes listed as a crime of terrorism.

In a directly relevant example, the government recently succeeded in getting a judge to apply the latter application of this enhancement by pointing to how several members of the neo-Nazi group, The Base, who pled guilty to weapons charges, had talked about plans to commit acts of terrorism and explained their intent to be coercion. Here’s the docket for more on this debate; the defendants are appealing to the Fourth Circuit. This language from the sentencing memo is worth quoting at length to show the kind of argument the government would have to make to get this kind of terrorism enhancement at sentencing.

“Federal crime of terrorism” is defined at U.S.S.G. § 3A1.4, app. note 1 and 18 U.S.C. § 2332b(g)(5). According to this definition, a “federal crime of terrorism” has two components. First, it must be a violation of one of several enumerated statutes. 18 U.S.C. § 2332b(g)(5)(B). Second, it must be “calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.” 18 U.S.C. § 2332b(g)(5)(A). By § 3A1.4’s plain wording, there is no requirement that the defendant have committed a federal crime of terrorism. All that is required is that the crimes of conviction (or relevant conduct) involved or were intended to promote a federal crime of terrorism.

[snip]

To apply the enhancement, this Court needs to identify which specific enumerated federal crime(s) of terrorism the defendants intended to promote, and the Court’s findings need to be supported by only a preponderance of the evidence. Id.17

The defendants repeatedly confirmed, on tape, that their crimes were intended to promote enumerated federal crimes of terrorism. They intended to kill federal employees, in violation of 18 U.S.C. § 1114. Exhibit 19; Exhibit 20; Exhibit 28; Exhibit 33; Exhibit 34; Exhibit 44; Exhibit 45. They intended to damage communication lines, in violation of 18 U.S.C. § 1362. Exhibit 37. They intended to damage an energy facility, in violation of 18 U.S.C. § 1366(a). Exhibit 30; Exhibit 35; Exhibit 36; Exhibit 45. They intended to damage rail facilities, in violation of 18 U.S.C. § 1992. Exhibit 29; Exhibit 30; Exhibit 38; Exhibit 45. And they intended to commit arson or bombing of any building, vehicle, or other property used in interstate commerce, in violation of 18 U.S.C. § 844(i). Exhibit 45.

Furthermore, there can be no serious dispute that the defendants’ intentions were “to influence or affect the conduct of government by intimidation or coercion.” Coercion and capitulation were core purposes of The Base. And specific to the defendants, they themselves said this is what they wanted. Exhibit 39 (“Desperation leads to martyr. Leads to asking what we want. Now that’s where we would have to simply keep the violence up, and increase the scope of our demands. And say if these demands are not met, we’re going to cause a lot of trouble. And when those demands are met, then increase them, and continue the violence. You just keep doing this, until the system’s gone. Until it can’t fight anymore and it capitulates.”). It was their express purpose to “bring the system down.” Exhibit 36

Given how many people were talking about hanging Mike Pence on January 6, this is not a frivolous threat for January 6 defendants. But as noted, such a terrorism enhancement doesn’t even require the plan to promote assassinating the Vice President. It takes just acts dangerous to human life that are a violation of the criminal laws of the United States and an attempt to coerce the government.

Contra Gerstein, I think there’s a pretty easy explanation for why the government hasn’t asked for a terrorism enhancement yet. The way the government is relying on obstruction to prosecute those who intended to prevent the peaceful transfer of power sets up terrorism enhancements for some of the most violent participants, but we’ve just not gotten to most of the defendants for whom that applies.

Thus far, there have been just three defendants who’ve been sentenced for assault so far, the acts “dangerous to human life” most at issue: Robert Palmer, Scott Fairlamb, and Devlyn Thompson. But Palmer and Thompson pled only to assault.

Fairlamb, as I noted at the time, pled guilty to both assault and obstruction. Unlike the two others, Fairlamb admitted that his intent, in punching a cop, was to, “stop[] or delay[] the Congressional proceeding by intimidation or coercion.”

When FAIRLAMB unlawfully entered the Capitol building, armed with a police baton, he was aware that the Joint Session to certify the Electoral College results had commenced. FAIRLAMB unlawfully entered the building and assaulted Officer Z.B. with the purpose of influencing, affecting, and retaliating against the conduct of government by stopping or delaying the Congressional proceeding by intimidation or coercion. FAIRLAMB admits that his belief that the Electoral College results were fraudulent is not a legal justification for unlawfully entering the Capitol building and using intimidating [sic] to influence, stop, or delay the Congressional proceeding.

Fairlamb, by pleading to assault and obstruction, admitted to both elements of terrorism: violence, and the intent of coercing the government.

On paper, Fairlamb made a great candidate to try applying a terrorism enhancement to. But the sentencing process ended up revealing that, on the same day that Fairlamb punched a cop as part of his plan to overturn the election, he also shepherded some cops through a mob in an effort, he said with some evidence shown at sentencing, to keep them safe.

That is, on paper, the single defendant to have pled guilty to both assault and obstruction looked like a likely candidate for a terrorism enhancement. But when it came to the actual context of his crimes, such an enhancement became unviable.

I fully expect that if the January 6 prosecution runs its course (a big if), then DOJ will end up asking for and getting terrorism enhancements at sentencing, both for militia members as well as some of the more brutal assault defendants, both for those who plead guilty and those convicted at trial. But in the case of assault defendants, it’s not enough (as Ted Cruz says) to just beat cops. With a goodly number of the people who did that, there’s no evidence of the intent to commit violence with the intent of disrupting the peaceful transfer of power. They just got swept up in mob violence.

I expect DOJ will only ask for terrorism enhancements against those who made it clear in advance and afterwards that their intent in resorting to violence was to interrupt the peaceful transfer of power.

But until that happens, DOJ has already achieved tangible results, both in detention disputes and plea negotiations, by invoking crimes of terrorism.

The Hundred-Plus January 6 Defendants Accused of Assault

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Yesterday, Merrick Garland marked two milestones in the January 6 investigation: 500 arrests, of which 100 were for assaulting police.

The Department of Justice reached several benchmarks in our investigation into the January 6th attack on the U.S. Capitol.

We have now crossed the threshold of 500 arrests, including the 100th arrest of a defendant on charges of assaulting a federal law enforcement officer. This morning, we arrested our first defendant on charges that include assaulting a member of the news media.

I could not be more proud of the extraordinary effort by investigators and prosecutors to hold accountable those who engaged in criminal acts that day. Particular credit goes to those serving as prosecutors and agents in Washington, D.C., as well as those in FBI field offices and U.S. Attorney’s Offices across the country, and with the Department’s National Security Division.

Our efforts to bring criminal charges are not possible without the continued assistance of the American public. To date, we have received their more than 200,000 digital tips.

I assure the American people that the Department of Justice will continue to follow the facts in this case and charge what the evidence supports to hold all January 6th perpetrators accountable.

I’ve been tracking the charged assaults (and a few related crimes). Here’s my list, which includes several people who really resisted arrest (but got charged under 18 USC 111). Note this list also tracks how the FBI identified the defendant, which shows that FBI has been relying on “Be On the Lookout” photos to identify assailants. As of right now, all these defendants have pled NOT guilty and are assumed innocent. [fixed typo]

As you read this list, keep in mind that FBI has released 410 BOLOs, most for assault, and well over 200 of those people remain at large. And of course, the FBI has not yet apprehended the pipe bomber.

  1. Daniel Page Adams, whose arrest affidavit describes engaging in a “direct struggle with [unnamed] law enforcement officers” (his cousin, Cody Connell, described the exchange as a “civil war”). Tip SM
  2. Justin Dee Adams, who charged cops. BOLO 374
  3. Zachary Alam, who pushed cops around as he was trying to break into the Speaker’s Lobby. BOLO 79
  4. Michael Alberts, who was arrested for gun possession the day of the riot but who had an assault charge added in a superseding indictment
  5. Wilmar Alvarado, who pushed cops in the mob trying to get in from the West Terrace. BOLO 65
  6. John Anderson, who after taking two riot shields from cops, needed their assistance after getting maced.
  7. David Arredondo, who allegedly grabbed a cop’s arm at one of the doors.
  8. Thomas Ballard, who used a police baton and threw a table in the Lower West Terrace. BOLO 325
  9. Julio Baquero, who resisted police efforts to empty out the Rotunda. Tip
  10. Logan Barnhart, who pulled one of the cops out of the Capitol.
  11. Matthew Beddingfield, accused of assaulting a cop on January 6 while out on bail for suspected murder in NC. Sedition Hunters
  12. Aiden Billyard, who joined the Air Force after being caught on video spraying a cop with suspected bear spray. Sedition Hunters
  13. Craig Bingert, who allegedly helped shove cops with a barricade. BOLO 105
  14. Tim Boughner, accused of pepper spraying a cop. BOLO 337
  15. Brian Glenn Bingham, who scuffled with two cops after Ashli Babbitt got shot. BOLO 93
  16. David Blair, who poked a cop with a lacrosse stick with a Confederate flag attached. Onsite arrest
  17. Jason Blythe, charged in the assault at the first barrier.
  18. Michael Brock, who hit two cops with a four-foot rod. BOLO 319
  19. Nicholas James Brockhoff, who sprayed a fire extinguisher from the Terrace at cops. BOLO 255
  20. Benjamin Burlew, who participated in a 6-person assault on an AP journalist.
  21. Jamie Buteau, whom surveillance video showed throwing chairs at cops several times in the Capitol. (BOLO 188)
  22. Alan Byerly, who allegedly beat up a cop and then beat up an AP cameraman. BOLO 193
  23. Daniel Caldwell, who was filmed macing 15 cops. SM
  24. Steven Cappuccio, who pulled Daniel Hodge’s gas mask and beat him with his own baton. BOLO 123
  25. Matthew Caspel, who was filmed charging the National Guard. Tip SM
  26. Ralphie Celentano, accused of knocking a cop off a terrace. BOLO 107
  27. William Chrestman, who is accused of threatening a cop as Proud Boys pushed their way past the original line of defense (charged with 18 USC 115). NM
  28. Reed Christensen, who was videotaped swinging at cops. BOLO and video 191
  29. Luke Coffee, who was videotaped beating several cops with a crutch. Tip SM and BOLO 108
  30. Cody Connell, who with his cousin was in a direct confrontation with cops. Tip SM
  31. Lance Copeland, who admitted to fighting with cops on the barricades.
  32. Matthew Council, who was arresting for shoving cops the day of the riot.
  33. Mason Courson, accused as part of a group that dragged cops from the Capitol and beat them. BOLO 129
  34. Kevin Creek, who was filmed hitting and kicking officers on the West Terrace. BOLO 296
  35. Bruno Cua, who was filmed shoving a cop to be able to get into the Senate. Tip LE
  36. Matthew DaSilva, who fought over shields with cops in the Lower West Terrace. BOLO 230
  37. James Davis, the Proud Boy with a big stick who charged some cops.
  38. Nathan DeGrave, whom security cameras caught threatening to fight cops. Network Sandlin
  39. David Dempsey, a Proud Boy with a history of assaulting anti-Trump protestors who used a crutch to assault police in the Tunnel. Sedition Hunters
  40. Robert Dennis, alleged to have assaulted officer JS on the terrace
  41. Timothy Desjardins, alleged to have beat police in the tunnel with a table leg. BOLO 348
  42. Michael Dickinson, accused of throwing things at cops. Tip SM
  43. Josh Doolin, who is part of Johnny Pollack’s cell that assaulted multiple cops. Network Pollack
  44. Israel Easterday, who sprayed a cop at the East door with Mace. Geofence
  45. Michael Eckerman, who pushed an officer down a small flight of stairs, thereby opening a new hallyway. Tip anon
  46. Daniel Egdvedt, a large man who took swipes and grabbed at several officers as they tried to remove him from the Capitol. BOLO 76
  47. James Elliott, who goes by Jim Bob, is a suspected Proud Boy accused of beating cops with a flagpole.
  48. Scott Fairlamb, who was caught in multiple videos shoving and punching officers (one who whom is identified but not named); Cori Bush has said she was threatened by him last summer. Tips, including SM
  49. Alan Fischer, a Proud Boy involved in the Tunnel assault who also threw chairs and a traffic cone at cops.
  50. Joseph Fischer, a cop who got in a tussle with another cop. Tip SM
  51. Kyle Fitzsimons, who charged officers guarding the doorway of the Capitol. BOLO 139
  52. Michael Foy, a former Marine who was caught on multiple videos beating multiple cops with a hockey stick. Tip SM
  53. Kevin Galetto, who allegedly knocked an MPD officer to the ground in the Tunnel. BOLO 146
  54. Vincent Gillespie, who screamed traitor and treason why fighting in the Tunnel. Unspecified BOLO
  55. Robert Gieswein, who appears to have ties to the Proud Boys and used a bat to beat cops. NM
  56. David Gietzen, accused of assaulting several cops with a pole at the early barricades. BOLO 217
  57. Vitali Gossjankowski, who was interviewed about whether he had tased MPD officer Michael Fanone, causing a heart attack; instead he was charged with assaulting CPD officer MM. BOLO 98 — with a second one mentioned
  58. Caden Gottfriend, who was part of the attack in the Tunnel.
  59. Daniel Gray, who got into several confrontations with officers inside the Capitol, including knocking down a female cop. Tip SM
  60. Brian Gunderson, charged with assault while committing a felony on a superseding.
  61. Jimmy Haffner, accused of breaching the cops defending the East doors using pepper spray. Network Nordean
  62. Tom Hamner, involved in an attack using a Trump sign while wearing a “Guns don’t kill people, Clintons do,” sweater.
  63. Alex Harkrider, who after being filmed fighting with police at the door of the Capitol, posted a picture with a crowbar labeled, “weapon;” he was charged with abetting Ryan Nichols’ assault. Tip SM
  64. Richard Harris, who assaulted a journalist in Oregon weeks before threatening cops, Nancy Pelosi, and Mike Pence during the riot.
  65. Uliyahu Hayah, who was in the vicinity of Ashli Babbitt’s death and shoved a cop on his way out. NM
  66. Albuquerque Cosper Head, accused of assaulting Michael Fanone.
  67. Dillon Herrington, who threw a 4X4 at cops, then threw a barrier. Sedition Hunters picture
  68. Joseph Hutchison, who is part of Johnny Pollack’s group, but who was caught via his own BOLO. BOLO 320
  69. Dale Huttle, accused of beating a cop with a flag. BOLO 299
  70. Adam Jackson, who attacked some cops with a shield.
  71. Brian Jackson, who threw an American flag at cops.
  72. Emanuel Jackson, whom videos caught punching one officer, and others show beating multiple officers with a metal baseball bat. BOLO 31
  73. Joshua James, an Oath Keeper accused of shoving a cop.
  74. Shane Jenkins, alleged to have used a crowbar to break in a window, later threw things including a pole, a desk drawer, and a flagpole at cops.
  75. Douglas Jensen, the QAnon who chased Officer Goodman up the stairs, got charged with resisting him. NM, BOLO 10
  76. Justin Jersey, accused of being part of a mob that assaulted some cops dragged out of the Capitol.
  77. Taylor Johnatakis, charged with 111.
  78. Paul Johnson, who carried a bullhorn and was in the initial assault from the west side with Ryan Samsel. BOLO 49
  79. Zachary Johnson, a Proud Boy accused of assaulting cops with pepper spray.
  80. David Judd, who threw a firecracker at cops in the tunnel. Tip and BOLO 137
  81. Riley Kasper, who bragged of pepper spraying cops. Tip SM
  82. Josiah Kenyon, accused of attacking two cops with a broken table leg with a nail sticking out. BOLO 94
  83. Julian Elie Khater, who allegedly sprayed Brian Sicknick and two others with very powerful bear spray. BOLO 190
  84. Freddie Klein, the State Department employee who fought with three different officers while trying to break through police lines. BOLO 136
  85. Peter Krill, who pulled barriers away from cops.
  86. Matt Krol, Genesee County militia executive who stole a baton and used it. BOLO 291
  87. Edward Jacob Lang, who identified himself in a screen cap of a violent mob attacking cops and who was filmed slamming a riot shield into police and later fighting them with a red baseball bat. Tip SM
  88. Nicholas Languerand, accused of throwing a bollard, a can of pepper spray, and a stick at cops in the Lower West Tunnel.
  89. Samuel Lazar, who was caught on video spraying chemicals and cops and claimed to be the tip of the spear.
  90. Mark Jefferson Leffingwell, whom a Capitol Police officer described in an affidavit punching him. Onsite arrest
  91. Daniel Leyden, helped push over the first barrier. BOLO 438
  92. Joseph Leyden, pushed Carolyn Stewart after first assault. BOLO 386
  93. Michael Lockwood, who wrestled a police baton from a cop. Sedition
  94. Joshua Lollar, who described fighting cops and was caught in pictures showing himself in the front lines confronting cops. Tip SM
  95. Michael Lopatic, who allegedly assaulted some cops with Stager and Sabol, then took a BWC to hide the assault. BOLO 133
  96. Avery MacCracken, accused of punching cop JG. BOLO 387
  97. Clifford Mackrell, who attempted to strip an officer’s gas mask after someone else sprayed bear spray. BOLO 124
  98. Markus Maly, accused of spraying a cop then handing his spray bottle to Jeffrey Brown. BOLO 324
  99. Jake Maxwell, who tousled with cops on the West side. probable Sedition Hunters
  100. Mark Mazza, who is accused of assaulting cops with a baton, and remains under investigation for assault while still in possession of the gun he lost at the riot.
  101. Logan McAbee, who was part of a gang assault on a cop pulled out of the Capitol.
  102. Patrick Edward McCaughey III, who was filmed crushing MPD Officer Daniel Hodges in one of the doors to the Capitol. BOLO 62
  103. James McGrew, who shoved some cops in the Rotunda then bared his King James belly tattoo, Tip Network
  104. Sean McHugh, accused of spraying some yellow substance at cops and using a sign as a battering ram, BOLO 59
  105. Jeffrey McKellop, a former Special Forces guy accused of assaulting 4 cops, including one by using a flagpole as a spear. BOLO 215
  106. James McNamara, who lunged at a cop protecting the North Door. BOLO 471
  107. David Mehaffie, who directed the assaults in the Tunnel
  108. Jonathan Mellis, who used some kind of stick to try to jab and beat police. Tip SM
  109. William Mellor, who first got involved with the Proud Boys at the November event, and who is accused of bear spraying cops.
  110. Jalise Middleton
  111. Mark Middleton, the Middletons fought the cops outside the West entrance to the Capitol. BWC
  112. Garret Miller, who pushed back at cops and then threatened both AOC and the cop who killed Ashli Babbit. Tip LE
  113. Matthew Ryan Miller, who released fire extinguisher in close quarters. Tip SM
  114. Scott Miller, accused of attacking several cops in the Tunnel. BOLO 132
  115. Rodney Milstreed, a self-described Proud Boy who boasted of beating up a camera man. Tip personal
  116. Jordan Mink, who used a pole to assault the police.
  117. Brian Mock, who kicked a cop when he was down and bragged about it. BOLO and Tip SM
  118. Patrick Montgomery was charged with assault against MPD officer DJ in a follow-up indictment.
  119. Robert Morss, who in addition to tussling with a cop, was a key organizer of shield walls in the Tunnel. BOLO 147
  120. Aaron Mostofsky, possibly for stripping a cop of his or her armored vest and riot shield. NM
  121. Clayton Mullins, alleged to be part of the mob that assaulted AW and two other police. Tip
  122. Jonathan Munafo, alleged to have fought with cops in two different locations, including punching one in the Lower West Terrace. (BOLO and video 170)
  123. Ryan Nichols, who was filmed wielding a crowbar and yelling, “This is not a peaceful protest,” then spraying pepper spray against police trying to prevent entry to the Capitol. Tip SM
  124. Gregory Nix, who is accused of beating one of the cops at the East door with a flagpole. Network
  125. John O’Kelly, who grabbed a cop’s baton.
  126. Grady Owens, who allegedly hit a cop in the head on the Mall with a skateboard, as he was heading to reinforce the Capitol. BOLO 109
  127. Jason Owens, accused of assaulting a second officer after his son attacked one with a skateboard. Network Owens
  128. Jose Padilla, who shoved cops at a barricade, then helped use a Donald Trump sign as a battering ram against them. Tip SM
  129. Robert Palmer, who sprayed cops with a fire extinguisher then threw it at them.
  130. Michael Perkins, who is part of the Pollack group. Network Pollack
  131. Dominic Pezzola, a Proud Boy who stole a shield from cops. NM and BOLO 43
  132. Johnny Pollack, who serially assaulted cops and then went on the lam. BOLO 144
  133. Olivia Pollack, Johnny’s sister who also allegedly punched a cop. Pollack network
  134. Mark Ponder, filmed repeatedly attacking cops with poles.
  135. Joshua Portlock, filmed attacking cops with a piece of plywood. BOLO 97
  136. Christopher Quaglin, accused of assaulting cops both at the initial breach of the barriers and later in the Lower West Terrace.
  137. Barry Ramey, accused of spraying toxins at cops. BOLO 329
  138. Stephen Chase Randolph, who shoved cops at the initial barricade and later bragged about a female cop’s head bouncing off the pavement. BOLO 168
  139. Howard Richardson, who allegedly beat a cop with a flagpole.
  140. Daniel Rodriguez, whom videos appear to show tasing Michael Fanone. Sedition Hunter-based reporting
  141. Edward Rodriguez, who sprayed pepper spray at cops while wearing a suit. Sedition Hunter-based reporting
  142. Greg Rubeacker, Tip SM
  143. Jesse James Rumson, who grabbed a cop’s face shield. Sedition
  144. Bobby Russell, who knocked over a cop while pushing over a SW barricade.
  145. Jeffrey Sabol, helped drag a cop from the Capitol and beat him while prone. LE arrest (erratic driving)
  146. Ryan Samsel, who set off the riot by giving a cop a concussion; he appears to have coordinated with Joe Biggs. BOLO 51 (though not IDed by BOLO)
  147. Salvador Sandoval, Jr, who went to the insurrection with his mother and shoved some cops.
  148. Robert Sanford, who was filmed hitting Capitol Police Officer William Young on the head with a fire extinguisher. Tip NM
  149. Ronald Sandlin, who tried to wrestle cops to keep the door to the Senate open. MPD tip
  150. Troy Sargent, who appears to have punched some cops holding a line. Tip SM
  151. Peter Schwartz, a felon who maced several cops. Tip NM (BOLO 120)
  152. Dan Scott, AKA Milkshake, who shoved some cops in the initial assault. Network.
  153. Christian Secor, a UCLA self-described fascist who helped shove through some cops to break into the Capitol and then sat in the Senate chamber. Tip NM
  154. DJ Shalvey. The details of the assault charged against Shalvey are not public, but he did get charged for lying about it to the FBI.
  155. Barton Wade Shively, who pushed and shoved some police trying to get into the Capitol, punched another, then struck one of those same cops later and kicked another. BOLO 55
  156. Thomas Sibick, accused of being among a group of men who attacked Michael Fanone and stole his badge.
  157. Geoffrey Sills, alleged to have used both a pole and a baton in several assaults on cops in the tunnel.
  158. Richard Slaughter, who hit cops with. a pole.
  159. Audrey Southard-Rumsey, the talented singer deemed one of the main agitators in the Statuary Hall Connector. Tip SM
  160. Michail Slye, who tripped a cop with a bike rack.
  161. Peter Francis Stager, who was involved in beating a prone cop with a flagpole. Tip SM
  162. Shelly Stallings, Peter Schwartz’s spouse indicted for spraying cops with pepper spray. Schwartz network
  163. Jackie Starer, a doctor who punched a female cop. Tip acq
  164. Ezekial Stecher, whom videos showed pushing in the Lower West Tunnel.
  165. Tristan Stevens, who fought cops with a shield and baton. Video
  166. Isaac Sturgeon, who is accused of using a barricade to attack some officers.
  167. Ryan Swoope, who sprayed a cop at the North door. BOLO 486
  168. Andrew Taake, who is accused to have used a metal whip and pepper spray against the cops. Tip SM
  169. George Pierre Tanios, who allegedly conspired with Julian Khater to attack Brian Sicknick and two other cops. BOLO 254
  170. Kenneth Joseph Owen Thomas, who organized a MAGA Caravan from AL and then selfied himself attacking cops. BOLO 214
  171. Salvatore Vassallo, who lit a cigar then charged at an officer. BOLO 338
  172. Christopher Warnagiris, the Marine Major who fought to keep the East door open. BOLO 241
  173. Jerry Waynick, accused of throwing a cone at cops. BOLO 157
  174. Mark Waynick, who tousled with cops with his son. Network Waynick
  175. Thomas Webster, who attacked a cop with a flagpole. BOLO 145
  176. Troy Weeks, who attempted to steal a cop’s pepper spray. BOLO 85
  177. Tucker Weston, who shoved some cops. BOLO 437
  178. Wade Whitten, accused of dragging AW down the steps of the Capitol and hitting him with a crutch. BOLO 130
  179. Ricky Willden, who allegedly sprayed cops with a chemical.
  180. Duke Wilson, accused of assaulting several officers in the Lower West Tunnel. BOLO 87
  181. Jason Woods, who allegedly used the same tripping attack on a female cop and a cameraman. BOLO 238
  182. Christopher Worrell, a Proud Boy who apparently sprayed pepper spray at a line of police.
  183. Kyle Young, accused of attacking Michael Fanone and another officer, and stealing Fanone’s weapon.

FBI and DHS Aren’t Using the Free Expertise on Right Wing Terrorism While Looking to Pay for It

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There was a remarkable moment in the Homeland Security/Rules hearing on January 6 the other day. Krysten Sinema asked whether FBI knew of the conversations on social media where people were openly planning for insurrection. FBI’s Assistant Director for Counterterrorism, Jill Sanborn, explained they did not know of them because the Bureau couldn’t collect on the social media of Americans without a predicated investigation.

Krysten Sinema: Was the FBI aware of these specific conversations on social media?

Jill Sanborn: To my knowledge, no ma’am, and I’ll just sort of articulate why that is. So under our authorities, because, being mindful of the First Amendment and our dual-hatted mission to uphold the Constitution, we cannot collect First Amendment protected activities without, sort of the next step, which is the intent, and so we’d have to have an already-predicated investigation that allowed us access to those comms and/or a lead or a tip or a report from a community citizen or a fellow law enforcement partner for us to gather that information.

Sinema: So the FBI does not monitor publicly-available social media conversations?

Sanborn: Correct, ma’am, it’s not within our authorities.

For what it’s worth, Sanborn’s first comment was about collecting on social media. Sinema then treated that as a limitation on monitoring it (and Sanborn didn’t correct her). Still, Sanborn explained away FBI’s failure to see the insurrection many of the rest of us were seeing develop in real time by saying that discovering it would have required tracking Americans’ protected speech.

A more revealing moment came elsewhere, when Sanborn revealed that just one person who has been arrested in the wake of the attack had already been under investigation. That means, in spite of the Proud Boys’ threat, with Roger Stone, against Amy Berman Jackson two years ago, the FBI didn’t have an enterprise investigation into them (or the Oath Keepers or a range of other extremist organizations involved in the attack). So, because the FBI was not investigating the Proud Boys, the Proud Boys were able to plan an insurrection in plain sight.

That has changed, of course.

Later in the hearing, Mark Warner — citing all the FBI’s warnings in recent years about what a lethal threat white supremacist terrorism is — asked both Sanborn and the woman currently running DHS’ Office of Intelligence and Analysis, Melissa Smislova, what they’re doing to improve things and whether they’re using any of the open source experts out there.

Sanborn talked about working with “partners” (which I took to mean social media companies) and Fusion centers. Smislova revealed that DHS is looking to contract with experts on the topic, rather than read what those experts produce on a regular basis.

Mark Warner: I appreciate Ms. Sanborn’s appropriate response that they not arbitrarily collect off of American citizens if there’s not some nexus, but I do think it’s important, I think others have mentioned this that Domestic Violent Extremists didn’t start with January 6. They didn’t start with Donald Trump. They’re not going to end with January 6. They’re not going to end with Donald Trump. In my state we saw, a few year’s back, the Unite the Right rally at Charlottesville where many of these same groups and affiliations came together in another violent effort where one protestor was killed, we unfortunately lost a couple members of our State Police. Director Wray has repeatedly said in testimony before the Intelligence Committee, the Worldwide Threat Assessment, that Domestic Violent Extremists are a major national security threat to this country. I personally believe that that message was downplayed during the previous Administration because they didn’t want to hear it. I want to start with Ms. Smislova and Assistant Director Sanborn — Director Sanborn it’s great to see you again — is that, recognizing the constraints that are placed upon you in terms of collections, and also acknowledging that this threat has been around for some time. The FBI in particular has acknowledged that it is an extraordinary major severe threat, what have you both been able to do in engaging in open source intelligence and independent research communities to better identify these DVEs. I know in the run-up to the January 6 insurrection there was research done by Harvard’s John Donovan and Elon University’s Megan Squire as well as other researchers that pointed to the fact that these DVEs and affiliated groups, oftentimes groups that are working in conjunction with groups in Europe, were planning this effort. So how are you both, DHS and FBI, utilizing these independent researchers, these open source activities, and making sure we’ve got a better handle on it, recognizing your appropriate constraints on what you can do directly?

Melissa Smislova: Yes, Senator, thank you for the question. We just last week met as, as inside I&A, to discuss contracting with some of those experts outside. We are aware that we need to invest more in our understanding of Domestic Terror, we understand as well that it will require a different approach than a traditional Intelligence Community approach, we must use different sources to understand this threat, we are looking to get outside experts, invest more in-house, we are secondly looking at how to better understand the social media world, so we can better focus on where we might find specific and insightful information about what the adversary is thinking about. We are additionally looking to partner more with our state and local colleagues who we know have a different perspective on this threat and have more information, in some cases, than we do, and we are also, again, partnering more across the department and with our federal partners, increasing our relationships with FBI.

Warner: Ms. Sanborn?

Jill Sanborn: Thank you Senator, nice to see you again as well. I’d sort of say what we’re trying to do, and I’ll put it in three buckets, really, for you. Increasing our private sector is 100%, I have a section just inside my division that does nothing but partner engagement. We have found that the better we educate them on the threat we’re facing and painting a picture for them of what those threats we are, they’re better able to pay attention and collect and refer information to us and that is helpful and that’s when we talk about the fact that 50% of our tips and leads to our cases, or predication for our cases come from that relationship and that education. We’re also, same as my colleague said, using the state and local partners, so we leverage the Fusion centers a lot and their ability and their expertise — and the Orange County Fusion Center is a great example of leading, sort of, the analytics of social media and leveraging their expertise to predicate cases and they were actually behind the predication of the case, The Base, that we disrupted. And then last, I’d say, challenging ourselves for better collection inside, right, trying to point our sources and our collection to be in the right places to collect the intelligence that we need and that is what led to the Norfolk SIR, that is us pointing our collection in a space that gathered that information.

Warner: I have to tell you, respectfully, I’m pretty disappointed with both of your answers. This is not a new threat, we’ve seen since 2016 election how foreign adversaries manipulate social media, hear repeatedly from DHS and FBI that we’re going to get better at collecting. We saw the Unite the Right rally in Charlottesville. We heard people say we’re gonna get better at collecting information and better partnering, neither one of your referenced — there’s literally a host of experts at academia, at organizations like Graphika, and others that are monitoring the DVEs and their activities, oftentimes in their connections to anti-government groups in Europe, again, oftentimes amplified by nations like Russia, and I guess we’re always going to get ready and we’re somehow surprised when we see the kind of chaos that took place on January 6th.

Mark Warner proceeded to chew out both FBI and DHS’s witnesses given that, even after he raised open source expertise available, neither mentioned relying on it.

I hope Warner is paying attention to Huffington Post’s recent reporting. On February 26, relying on the work of some anti-fascist researchers, HuffPo identified Danny Rodriguez as the likely culprit behind the tasing of DC cop Michael Fanone, which led him to suffer a mild heart attack. HuffPo also reported that the FBI had gotten tips IDing Rodriguez in January, but had done nothing to call those who submitted the tips until HuffPo called the Bureau for comment.

The man in the red “MAKE AMERICA GREAT AGAIN” hat seemed to think he was untouchable. He joined the mob as they yelled “HEAVE! HO!” and tried to force their way through a police line into the Capitol building. Once inside, he used a pole to ram against a window, trying to shatter it and bring more people into the Capitol. In the most disturbing footage of all, he was caught on camera appearing to shock D.C. Metropolitan Police Officer Mike Fanone with a stun gun. As rioters push Fanone down the stairs and away from other cops, video shows the man in the red cap pressing a small black device against the officer’s neck. Fanone instantly drops to the ground, swallowed by the mob.

[snip]

His assailant in the red MAGA hat, who has been at large since the insurrection, is 38-year-old Daniel Joseph Rodriguez from Fontana, California, HuffPost can confirm.

Rodriguez, who goes by “Danny” and “DJ,” is well known among Trump supporters in the Los Angeles area as a superfan of the former president. Multiple news outlets have featured him in their coverage of the local pro-Trump movement in recent years, in articles that included his name and photo. He regularly attended the weekly Trump rallies in Beverly Hills last year. He was recognizable there by his dark-rimmed glasses and the many distinctive pins on his hat, which has a big GOP elephant symbol on the brim.

[snip]

Two separate anti-fascist activists ― as well as a third witness who supported Trump and called himself a former friend of Rodriguez ― reviewed footage of the man at the Capitol and told HuffPost they recognized Rodriguez from the California rallies.

The FBI received tips about Rodriguez last month, including one from a man he assaulted on video at a Los Angeles-area rally. But it wasn’t until hours after a HuffPost inquiry to the bureau for this story that the tipster heard from an FBI special agent with questions specifically about a man named “Danny Rodriguez.”

Then, yesterday, HuffPo revealed another case where a researcher sent in a tip only to have no visible response from the FBI. Shortly after January 20, SeditionHunter “Amy” identified Robert Scott Palmer as the guy in an American flag jacket who sprayed a fire extinguisher at cops.

With bright red and white stripes across his body and stars down his sleeves, the man in the American flag jacket and “FLORIDA FOR TRUMP” hat wielded a fire extinguisher while charging the U.S. Capitol on the afternoon of Jan. 6. He shoved his way through the crowd of rioters to the police line, then sprayed officers at close range before chucking the emptied canister at them. By nightfall he himself had been lightly harmed, apparently by a police crowd control munition. He held up his shirt to show off his bruised gut during an interview with a female journalist filming him live as cops pushed the mob back from Capitol grounds. Then he looked straight into her livestreaming device and identified himself as Robert Palmer from Clearwater, Florida.

[snip]

Palmer is now publicly on the FBI’s radar, though not by name. Three photos of him are featured on the bureau’s Capitol violence page, where he’s listed only as “#246 – AFO [Assault on Federal Officer].” But the images didn’t appear there until nearly a month after Amy had already tipped off the FBI about his identity.

#FloridaFlagJacket was used as a hashtag on Twitter less than a week after the Capitol attack, when Trump was still in office. Amy sent in a tip naming Palmer not long after President Joe Biden was inaugurated. His photos were finally added to the FBI database in late February.

It’s not just online researchers whose tips the FBI isn’t moving on quickly. On January 11, someone who knew Peter Schwartz as a felon who had gotten released from prison due to COVID, alerted the FBI that Schwartz had skipped out on his halfway house to attend the rally (the tipster was friends with Schwartz but Schwartz owed him money). The FBI subsequently identified Schwartz as the person who maced some cops.

On January 11, 2021, the FBI National Threat Operations Center (NTOC) received a tip from an individual (hereinafter W-1) who is personally acquainted with SCHWARTZ. In the tip, W-1 reported that “Pete SCHWARTZ” was involved in the Capitol riots. W-1 stated SCHWARTZ is a felon and was released from prison due to COVID-19. W-1 also stated that SCHWARTZ is employed as a traveling welder. According to W-1, SCHWARTZ was supposed to be at a rehabilitation facility in Owensboro, Kentucky on January 6, 2021. However, W-1 saw a picture of SCHWARTZ on the Capitol Building steps that appeared to have been taken on January 6, 2021. As part of the tip, W-1 also provided the Facebook URL for what he claimed was SCHWARTZ’s Facebook page. W-1 did not provide any other photographs, however. Due to the volume of tips provided to the FBI since January 6, 2021 – which stands at over 150,000 as of January 26, 2021 – the FBI was not able to immediately contact W-1 regarding the information that W-1 provided and did not immediately link SCHWARTZ to the individual who repeatedly maced officers at the Capitol.

Schwartz wasn’t arrested until February 4.

Still, that’s less time than these other tips.

The FBI, perhaps justifiably given the flood of data they’re dealing with, seems to value tips from suspects’ direct associates rather than online tipsters. The vast majority of tips they have acted on do come from people who know a suspect directly, often their family or friends or high school classmates.

But many of these researchers have been doing what FBI claims it cannot do (or could not before an insurrection gave them the predicated investigation permitting them to do so): connect the dots from public social media.

Instead, DHS is looking to pay people for the assistance people are trying to give the FBI for free.