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

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

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. Zachary Alam, who pushed cops around as he was trying to break into the Speaker’s Lobby. BOLO 79
  3. Michael Alberts, who was arrested for gun possession the day of the riot but who had an assault charge added in a superseding indictment
  4. Wilmar Alvarado, who pushed cops in the mob trying to get in from the West Terrace. BOLO 65
  5. John Anderson, who after taking two riot shields from cops, needed their assistance after getting maced.
  6. Thomas Ballard, who used a police baton and threw a table in the Lower West Terrace. BOLO 325
  7. Julio Baquero, who resisted police efforts to empty out the Rotunda. Tip
  8. Logan Barnhart, who pulled one of the cops out of the Capitol.
  9. Aiden Billyard, who joined the Air Force after being caught on video spraying a cop with suspected bear spray. Sedition Hunters
  10. Craig Bingert, who allegedly helped shove cops with a barricade. BOLO 105
  11. Tim Boughner, accused of pepper spraying a cop. BOLO 337
  12. Brian Glenn Bingham, who scuffled with two cops after Ashli Babbitt got shot. BOLO 93
  13. David Blair, who poked a cop with a lacrosse stick with a Confederate flag attached. Onsite arrest
  14. Michael Brock, who hit two cops with a four-foot rod. BOLO 319
  15. Nicholas James Brockhoff, who sprayed a fire extinguisher from the Terrace at cops. BOLO 255
  16. Benjamin Burlew, who participated in a 6-person assault on an AP journalist.
  17. Jamie Buteau, whom surveillance video showed throwing chairs at cops several times in the Capitol. (BOLO 188)
  18. Alan Byerly, who allegedly beat up a cop and then beat up an AP cameraman. BOLO 193
  19. Daniel Caldwell, who was filmed macing 15 cops. SM
  20. Steven Cappuccio, who pulled Daniel Hodge’s gas mask and beat him with his own baton. BOLO 123
  21. Matthew Caspel, who was filmed charging the National Guard. Tip SM
  22. 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
  23. Reed Christensen, who was videotaped swinging at cops. BOLO and video 191
  24. Luke Coffee, who was videotaped beating several cops with a crutch. Tip SM and BOLO 108
  25. Cody Connell, who with his cousin was in a direct confrontation with cops. Tip SM
  26. Lance Copeland, who admitted to fighting with cops on the barricades.
  27. Matthew Council, who was arresting for shoving cops the day of the riot.
  28. Mason Courson, accused as part of a group that dragged cops from the Capitol and beat them. BOLO 129
  29. Kevin Creek, who was filmed hitting and kicking officers on the West Terrace. BOLO 296
  30. Bruno Cua, who was filmed shoving a cop to be able to get into the Senate. Tip LE
  31. Matthew DaSilva, who fought over shields with cops in the Lower West Terrace. BOLO 230
  32. James Davis, the Proud Boy with a big stick who charged some cops.
  33. Nathan DeGrave, whom security cameras caught threatening to fight cops. Network Sandlin
  34. 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
  35. Robert Dennis, alleged to have assaulted officer JS on the terrace
  36. Timothy Desjardins, alleged to have beat police in the tunnel with a table leg. BOLO 348
  37. Michael Dickinson, accused of throwing things at cops. Tip SM
  38. Josh Doolin, who is part of Johnny Pollack’s cell that assaulted multiple cops. Network Pollack
  39. Michael Eckerman, who pushed an officer down a small flight of stairs, thereby opening a new hallyway. Tip anon
  40. Daniel Egdvedt, a large man who took swipes and grabbed at several officers as they tried to remove him from the Capitol. BOLO 76
  41. James Elliott, who goes by Jim Bob, is a suspected Proud Boy accused of beating cops with a flagpole.
  42. 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
  43. Alan Fischer, a Proud Boy involved in the Tunnel assault who also threw chairs and a traffic cone at cops.
  44. Joseph Fischer, a cop who got in a tussle with another cop. Tip SM
  45. Kyle Fitzsimons, who charged officers guarding the doorway of the Capitol. BOLO 139
  46. Michael Foy, a former Marine who was caught on multiple videos beating multiple cops with a hockey stick. Tip SM
  47. Kevin Galetto, who allegedly knocked an MPD officer to the ground in the Tunnel. BOLO 146
  48. Robert Giswein, who appears to have ties to the Proud Boys and used a bat to beat cops. NM
  49. 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
  50. Daniel Gray, who got into several confrontations with officers inside the Capitol, including knocking down a female cop. Tip SM
  51. Brian Gunderson, charged with assault while committing a felony on a superseding.
  52. Jimmy Haffner, accused of breaching the cops defending the East doors using pepper spray. Network Nordean
  53. Tom Hamner, involved in an attack using a Trump sign while wearing a “Guns don’t kill people, Clintons do,” sweater.
  54. 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
  55. Richard Harris, who assaulted a journalist in Oregon weeks before threatening cops, Nancy Pelosi, and Mike Pence during the riot.
  56. Uliyahu Hayah, who was in the vicinity of Ashli Babbitt’s death and shoved a cop on his way out. NM
  57. Albuquerque Cosper Head, accused of assaulting Michael Fanone.
  58. Dillon Herrington, who threw a 4X4 at cops, then threw a barrier. Sedition Hunters picture
  59. Joseph Hutchison, who is part of Johnny Pollack’s group, but who was caught via his own BOLO. BOLO 320
  60. Emanuel Jackson, whom videos caught punching one officer, and others show beating multiple officers with a metal baseball bat. BOLO 31
  61. Joshua James, an Oath Keeper accused of shoving a cop.
  62. 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.
  63. Douglas Jensen, the QAnon who chased Officer Goodman up the stairs, got charged with resisting him. NM, BOLO 10
  64. Justin Jersey, accused of being part of a mob that assaulted some cops dragged out of the Capitol.
  65. Taylor Johnatakis, charged with 111.
  66. Paul Johnson, who carried a bullhorn and was in the initial assault from the west side with Ryan Samsel. BOLO 49
  67. Zachary Johnson, a Proud Boy accused of assaulting cops with pepper spray.
  68. David Judd, who threw a firecracker at cops in the tunnel. Tip and BOLO 137
  69. Josiah Kenyon, accused of attacking two cops with a broken table leg with a nail sticking out. BOLO 94
  70. Julian Elie Khater, who allegedly sprayed Brian Sicknick and two others with very powerful bear spray. BOLO 190
  71. Freddie Klein, the State Department employee who fought with three different officers while trying to break through police lines. BOLO 136
  72. 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
  73. Nicholas Languerand, accused of throwing a bollard, a can of pepper spray, and a stick at cops in the Lower West Tunnel.
  74. Samuel Lazar, who was caught on video spraying chemicals and cops and claimed to be the tip of the spear.
  75. Mark Jefferson Leffingwell, whom a Capitol Police officer described in an affidavit punching him. Onsite arrest
  76. Joshua Lollar, who described fighting cops and was caught in pictures showing himself in the front lines confronting cops. Tip SM
  77. Michael Lopatic, who allegedly assaulted some cops with Stager and Sabol, then took a BWC to hide the assault. BOLO 133
  78. Avery MacCracken, accused of punching cop JG. BOLO 387
  79. Clifford Mackrell, who attempted to strip an officer’s gas mask after someone else sprayed bear spray. BOLO 124
  80. 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.
  81. Logan McAbee, who was part of a gang assault on a cop pulled out of the Capitol.
  82. Patrick Edward McCaughey III, who was filmed crushing MPD Officer Daniel Hodges in one of the doors to the Capitol. BOLO 62
  83. James McGrew, who shoved some cops in the Rotunda then bared his King James belly tattoo, Tip Network
  84. Sean McHugh, accused of spraying some yellow substance at cops and using a sign as a battering ram, BOLO 59
  85. Jeffrey McKellop, a former Special Forces guy accused of assaulting 4 cops, including one by using a flagpole as a spear. BOLO 215
  86. David Mehaffie, who directed the assaults in the Tunnel
  87. Jonathan Mellis, who used some kind of stick to try to jab and beat police. Tip SM
  88. Jalise Middleton
  89. Mark Middleton, the Middletons fought the cops outside the West entrance to the Capitol. BWC
  90. Garret Miller, who pushed back at cops and then threatened both AOC and the cop who killed Ashli Babbit. Tip LE
  91. Matthew Ryan Miller, who released fire extinguisher in close quarters. Tip SM
  92. Jordan Mink, who used a pole to assault the police.
  93. Brian Mock, who kicked a cop when he was down and bragged about it. BOLO and Tip SM
  94. Patrick Montgomery was charged with assault against MPD officer DJ in a follow-up indictment.
  95. Robert Morss, who in addition to tussling with a cop, was a key organizer of shield walls in the Tunnel. BOLO 147
  96. Aaron Mostofsky, possibly for stripping a cop of his or her armored vest and riot shield. NM
  97. Clayton Mullins, alleged to be part of the mob that assaulted AW and two other police. Tip
  98. Jonathan Munafo, alleged to have fought with cops in two different locations, including punching one in the Lower West Terrace. (BOLO and video 170)
  99. 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
  100. 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
  101. Jason Owens, accused of assaulting a second officer after his son attacked one with a skateboard. Network Owens
  102. Jose Padilla, who shoved cops at a barricade, then helped use a Donald Trump sign as a battering ram against them. Tip SM
  103. Robert Palmer, who sprayed cops with a fire extinguisher then threw it at them.
  104. Michael Perkins, who is part of the Pollack group. Network Pollack
  105. Dominic Pezzola, a Proud Boy who stole a shield from cops. NM and BOLO 43
  106. Johnny Pollack, who serially assaulted cops and then went on the lam. BOLO 144
  107. Olivia Pollack, Johnny’s sister who also allegedly punched a cop. Pollack network
  108. Mark Ponder, filmed repeatedly attacking cops with poles.
  109. Joshua Portlock, filmed attacking cops with a piece of plywood. BOLO 97
  110. Christopher Quaglin, accused of assaulting cops both at the initial breach of the barriers and later in the Lower West Terrace.
  111. 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
  112. Howard Richardson, who allegedly beat a cop with a flagpole.
  113. Daniel Rodriguez, whom videos appear to show tasing Michael Fanone. Sedition Hunter-based reporting
  114. Edward Rodriguez, who sprayed pepper spray at cops while wearing a suit. Sedition Hunter-based reporting
  115. Greg Rubeacker, Tip SM
  116. Jeffrey Sabol, helped drag a cop from the Capitol and beat him while prone. LE arrest (erratic driving)
  117. 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)
  118. Salvador Sandoval, Jr, who went to the insurrection with his mother and shoved some cops.
  119. Robert Sanford, who was filmed hitting Capitol Police Officer William Young on the head with a fire extinguisher. Tip NM
  120. Ronald Sandlin, who tried to wrestle cops to keep the door to the Senate open. MPD tip
  121. Troy Sargent, who appears to have punched some cops holding a line. Tip SM
  122. Peter Schwartz, a felon who maced several cops. Tip NM (BOLO 120)
  123. Dan Scott, AKA Milkshake, who shoved some cops in the initial assault. Network.
  124. 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
  125. 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.
  126. 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
  127. Thomas Sibick, accused of being among a group of men who attacked Michael Fanone and stole his badge.
  128. Geoffrey Sills, alleged to have used both a pole and a baton in several assaults on cops in the tunnel.
  129. Audrey Southard-Rumsey, the talented singer deemed one of the main agitators in the Statuary Hall Connector. Tip SM
  130. Peter Francis Stager, who was involved in beating a prone cop with a flagpole. Tip SM
  131. Ezekial Stecher, whom videos showed pushing in the Lower West Tunnel.
  132. Tristan Stevens, who fought cops with a shield and baton. Video
  133. Isaac Sturgeon, who is accused of using a barricade to attack some officers.
  134. Andrew Taake, who is accused to have used a metal whip and pepper spray against the cops. Tip SM
  135. George Pierre Tanios, who allegedly conspired with Julian Khater to attack Brian Sicknick and two other cops. BOLO 254
  136. Kenneth Joseph Owen Thomas, who organized a MAGA Caravan from AL and then selfied himself attacking cops. BOLO 214
  137. Christopher Warnagiris, the Marine Major who fought to keep the East door open. BOLO 241
  138. Thomas Webster, who attacked a cop with a flagpole. BOLO 145
  139. Wade Whitten, accused of dragging AW down the steps of the Capitol and hitting him with a crutch. BOLO 130
  140. Ricky Willden, who allegedly sprayed cops with a chemical.
  141. Duke Wilson, accused of assaulting several officers in the Lower West Tunnel. BOLO 87
  142. Jason Woods, who allegedly used the same tripping attack on a female cop and a cameraman. BOLO 238
  143. Christopher Worrell, a Proud Boy who apparently sprayed pepper spray at a line of police.
  144. 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

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.