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Enrique Tarrio Really Doesn’t Want the FBI to Search His Laptop

While there has been a close focus on the federal charges against the terrorists who mobbed the Capitol on January 6, there has been less focus on the lawfare Proud Boy leader Enrique Tarrio has been waging in his DC case.

Tarrio likely avoided federal charges like those filed against Proud Boy leaders Joe Biggs and Ethan Nordean by getting arrested two days earlier on charges associated with vandalizing a Black church and possession of a firearm. But Tarrio is complaining that his bail conditions — which prohibit him from entering DC except for reasons related to his prosecution — violate his First Amendment.

Thus, undersigned counsel invites the government to explain, at a hearing before the Court, what reasonable and credible justification it can offer for barring from the District of Columbia a person who is accused of a possessory felony offense (that does not even involve possession of bullets or a gun) and misdemeanor destruction of a Black Lives Matter flag.

[snip

This ban is especially harsh in Mr. Tarrio’s case, as: (1) he is an activist who needs to be in the District from time to time to organize and protest; (2) many American citizens are concerned about the policies of the Biden administration and thus have a right to redress by appearing at protests in the District; and (3) trials are extremely delayed due to the COVID-19 pandemic, meaning that the “temporary” ban from the District will likely, in effect, result in a long-term ban if this Court does not modify it.

More interesting still, Tarrio moved to require the court to have a hearing before granting a warrant to search the phone or laptop that were seized from Tarrio when he was arrested (and he’s particularly interested in getting his laptop returned to him if and when the DC cops image it in response to a warrant).

Given the privacy interests at stake and the important legal issues at play, Mr. Tarrio requests that any execution, or issuance, of a warrant be temporarily halted to provide undersigned counsel the opportunity to respond. Further, defense counsel should be notified of, and be allowed to attend, any government/police request/application for a search warrant of Mr. Tarrio’s electronic devices (including his cell phone and laptop computer), online accounts, or any other item in which Mr. Tarrio has a privacy interest.

The DC Superior court rejected both requests (Tarrio is appealing the bail motion). In the latter case, Judge Robert Okun did so because the court has not issued a warrant, and Tarrio has no right to make a pre-emptive challenge in any case.

If I understand the posture of the request, however, nothing happening in the DC Superior court would prevent the DC US Attorney’s office from asking the DC District Court for a warrant to serve on the DC police — which is where they’d go if they were seeking the contents of the laptop as part of its January 6 investigation.

When Tarrio assaulted the Asbury United Methodist Church in December, he did so knowing it would create a cause among the far right. The same may be true of his decision to bring two magazines to DC — it may have been deliberate provocation in an attempt to bring a Second Amendment challenge.

So that may be all that’s going on here — an attempt to play the victim.

That said, given first the WaPo and now a NYT report that the DC US Attorney’s office is considering opening an investigation into the role that Tarrio’s buddy Roger Stone played in the insurrection — conveniently timed leaks that will ensure this comes up in Merrick Garland’s confirmation hearing tomorrow — I wonder whether Tarrio was stupid enough to bring a laptop to his insurrection with something genuinely sensitive on it.

Dominic Pezzola Suspects the FBI’s Cooperating Witness Is the Guy Who Recruited Him into the Proud Boys

A number of people are pointing to this motion to modify bond by Proud Boy Dominic Pezzola, the guy who helped kick off an insurrection by breaking the window of the Capitol with a stolen police shield, reporting either that Pezzola is bidding to plead out or that that the Proud Boys are turning on themselves.

Both may be true.

But buried within the filing is a far more inflammatory allegation. Pezzola, the guy who kicked off the entire assault on the Capitol on January 6 in coordination with other Proud Boys, is suggesting that someone who came to serve as an FBI cooperating witness less than a week after an attack that purportedly took the FBI entirely by surprise, was actually the guy who recruited him into the Proud Boys and set him up with a thumb drive loaded up — unbeknownst to him, he maintains — with the Anarchist’s Handbook, including its bomb-making plans.

Pezzola makes the allegation by rebutting the claim he is dangerous, the basis by which Magistrate Robin Meriweather. came to deny him bail.

As Pezzola notes, Meriweather denied him bail not because of a presumption of detention or a concern he would flee. It was because he posed a danger to the public. Meriweather framed that presumed danger as arising from a thumb drive loaded with the Anarchist’s Handbook found at his home and the testimony of a witness.

In determining that Pezzola’s release presented “danger” to the community the Court cited 2 factors from the prosecution’s proffer: (1) the claim that Pezzola participated in a group conversation when others expressed an intention to return to DC with weapons to commit acts of violence; (2) recovery of a thumb drive with plans for making, bombs, poisons, etc.

Per Pezzola’s arrest affidavit, the witness was someone whom the FBI interviewed at least twice before obtaining an arrest warrant against Pezzola on January 13, just a week after the insurrection. The description of witnesses in the total universe of January 6 affidavits are totally inconsistent (in part because so many different FBI Agents wrote them), meaning we can’t conclude anything by the description an agent uses. Nevertheless, this one was always among the only ones that seemed to be an insider. The witness is someone who described Pezzola as “Spaz” right away (though elsewhere he is called Spazzo), described Pezzola as bragging about breaking into the Capitol, and he described the group — the Proud Boys — as capable of killing Nancy Pelosi or Mike Pence, and planning more actions.

The FBI has spoken to an individual your affiant will refer to as “W-1” for purposes of this affidavit. W-1 stated that W-1 was in Washington, D.C., during the protests that occurred on January 6, 2021.

W-1 stated that after the events at the Capitol as described above, he or she spoke to an individual he or she knows as “Spaz,” along with other individuals. W-1 stated that during that conversation, “Spaz” bragged about breaking the windows to the Capitol and entering the building. In a subsequent interview W-1 clarified that “Spaz” said that he used a Capitol Police shield to break the window. W-1 said that “Spaz” can be seen on the cover of many newspapers and recognizes him from those photographs. W-1 stated that other members of the group talked about things they had done during the day, and they said that anyone they got their hands on they would have killed, including Nancy Pelosi. W-1 further stated that members of this group, which included “Spaz,” said that they would have killed [Vice President] Mike Pence if given the chance.

I had thought this witness would be one of numerous Proud Boy hangers on who was hanging around in DC after the attack, but as we’ll see, Pezzola believes it’s the guy he commuted to insurrection with.

The witness first told the FBI that the Proud Boys were preparing an event on January 20th (which is consistent with other reports).

According to W-1, the group said it would be returning on the “20th,” which your affiant takes to mean the Presidential Inauguration scheduled for January 20, 2021, and that they plan to kill every single “m-fer” they can.1 W-1 stated the men said they all had firearms or access to firearms.

Then, in a later interview (again, remember that this is before January 13), the witness said maybe the next event wasn’t inauguration, but soon after. Whenever it was, it’d involve guns.

In a later interview, W-1 stated that the group had no definitive date for a return to Washington, D.C, but W-1 re-iterated that the others agreed there would be guns and that they would be back soon and they would bring guns.

The witness also misidentified Doug Jensen, the QAnon adherent who chased officer Goodman up the Capitol stairs, as someone else, presumably a member of the Proud Boys, only to clarify later that someone else was the individual in question.

In W-1’s initial interview with law enforcement, W-1 initially incorrectly the individual in the black knit hat in the foreground of this photograph as someone I will refer to as “Individual A.” W-1 later clarified that the person in the knit hat is not in fact Individual A and identified a different person in a separate photograph as Individual A.

Thus far, this witness sounds like he’s telling the FBI what he expects they most want to hear, something you often hear from informants trying to maximize their own value. By misidentifying Jensen, he may have falsely suggested the Proud Boys chose where to go in the Capitol. And by promising there would be more events, featuring violence (again, which is consistent with what public chatter was at the time), he heightened the urgency of case against the Proud Boys.

As Pezzola describes in his motion for bail, he suspects the person who said the Proud Boys had ongoing plans is a guy he drove home to New York with from DC.

Pezzola maintains no recollection of the referenced conversation but suspects if the conversation did occur in his presence it could have only occurred in the car on the return trip from Washington when Pezzola was asleep in the car. Upon information and belief, the CW is not detained. Rather he has reached an agreement where he is making allegations against others in order to avoid his detention for what is actually his greater involvement in the underlying events.

That would explain why William Pepe, also from NY, was named Pezzola’s co-conspirator: presumably both were in the same car speaking to the same guy, which is how the government had confidence that Pepe’s actions were coordinated with Pezzola’s and not, for example, the two other people charged with kicking off the attack on the Capitol, Robert Gieswein and Ryan Samsel.

As Pezzola describes, “it is alleged” that he’s just a recent recruit to the Proud Boys (something I don’t necessarily buy, but it seems to reflect Pezzola parroting back what he’s seen in discovery so far).

Pezzola’s alleged contact with the “Proud Boys” was minimal and short lived. It is alleged he had no contact prior to late November 2020. Upon information and belief, the prosecution alleges his first contacts occurred around that time. They principally amounted to meeting for drinks in a bar. Prior to January 6, 2020, there is no allegation that Pezzola took any action with the “Proud Boys” that was in anyway criminal or violent. His only event prior to January 6, 2021, was that he attended a MAGA rally in support of Donald Trump in December 2020. There is no allegation he was involved in any criminal or violent activity there.

He claims that the cooperating witness is actually far more involved in the Proud Boys.

Addressing these in turn: There is a claim as the prosecution pointed out that a “cooperating witness” claimed that Pezzola was present in a group when someone professed an intention to return on January 20, 2021, Inauguration day to instigate more violence. However, there is no claim Pezzola made those statements nor that he expressed a similar intent1 nor any intention to participate in any acts of violence, let alone murder. Although the defense cannot be certain it is believed the “cooperating witness” (CW) who has made these claims is actually someone who was a much more active participant in the “Proud Boys” than Pezzola, having been with the organization for a much longer time than Pezzola’s alleged association and much more active.

And Pezzola claims that the thumb drive showing possession of bomb making instructions was actually given to him by the guy he suspects of being the cooperating witness.

What was unknown at the time of the prior hearing is that the thumb drive at issue was given to Pezzola, probably by the Prosecution’s CW5 when that person was making efforts to introduce Pezzola into the “Proud Boys.”

Finally, Pezzola further alleges that the guy he suspects of being the cooperating witness confessed to spraying cops with pepper spray, an assault that has not been charged (only Giswein and Samsel were charged with outright assaults on cops).

Although it is impossible to know with certainty at this point, if the defense supposition about the CW is correct, that person admitted to spraying law enforcement with a chemical agent, likely “OC or Pepper” spray during the January 6 event.

It is true that Pezzola nods to making a plea deal in this filing.

Although the Court can play no role in disposition negotiations, via counsel Pezzola has indicated his desire to begin disposition negotiations and acceptance of responsibility for his actions. He seeks to make amends.

But there’s little chance DOJ can offer him a deal that will help him rebuild his life. Even in this filing, he admits he was attempting to stop the vote count, the goal of every overriding conspiracy charge thus far, which would be a key part of any seditious conspiracy case. He doesn’t deny he broke into the Capitol; he instead disingenuously downplays the import of being the first to do so, noting that numerous doors and windows were breached over the course of the day. His claim he has never used his Marine training since his service is inconsistent with the way he walked through the Capitol with much greater operational awareness than many of the other rioters. Plus, even in his first bail hearing, Pezzola insisted he was not a leader of the attack, which — if he was a recent recruit, makes total sense (and is consistent with Felicia Konold, someone else who played a key role, but who was just a recruit-in-progress). So he wouldn’t necessarily have that much information on anyone except those who gave him directions and the guy in the car, not necessarily enough to trade as the guy who kicked off the insurrection, even if he was acting on orders.

He’s likely fucked one way or another, not least because he’d be far less useful as a cooperator if everyone knew he had a plea deal.

But Pezzola’s allegation is troubling for several more reasons.

As noted, the FBI interviewed this cooperating witness at least twice before January 13, suggesting at the very least that the FBI reached out to him right away (or vice versa), rather than collecting more information on the person’s own role. And in spite of two variations in his story — misidentifying Jensen and equivocating about when the next operations were planned — his testimony was deemed credible enough to implicate someone he may have recruited and provided other the other damning evidence on.

The FBI knew that Enrique Tarrio and the rest of the Proud Boys were coming to DC for the January 6 events, which is how they were prepared to arrest him on entry in DC. They knew that during the Proud Boys’ previous visit, the group had targeted two Black churches. DOJ had investigated threats four members of the Proud Boys had made against a sitting judge in 2019.

And yet, not only didn’t FBI prevent the January 6 attack kicked off by the Proud Boys, they didn’t even issue an intelligence warning about possible violence.

It’s possible this witness genuinely did just reach out to the FBI and try to pre-empt any investigation into himself. It’s possible that as the FBI has done more review (including of video outside the Capitol, where a pepper spray attack on cops likely would have occurred), they’ve come to grow more skeptical of this witness.

But it’s also possible that the FBI has ties with witnesses — possibly this guy, and very likely Rudy Giuliani interlocutor James Sullivan, who said he was in contact with the FBI — who have more information on those who set up this insurrection, rather than just busting down the window. Particularly given the unsurprising news that investigators are scrutinizing the role that Roger Stone and Alex Jones might have played (Rudy is not mentioned, but not excluded either), it seems critical that the FBI not adhere to its counterproductive use of informants targeting a group (no matter how reprehensible) rather than action.

The FBI has a lot to answer for in its utterly inconceivable failure to offer warnings about this event. If their informant practices blinded them — or if they’re making stupid choices now out of desperation to mitigate that initial failure — it will do little to mitigate the threat of the Proud Boys.

Bill Barr Claimed a Threat Meriting a Four Subpoena Investigation Didn’t Merit a Sentencing Enhancement

In the aftermath of the Proud Boys-led insurrection, I’ve been reporting over and over on how Bill Barr’s DOJ treated threats by the Proud Boys against Amy Berman Jackson — which the probation office treated as the same kind of threat as the obstruction charge being used against many of the January 6 defendants — as a technicality unworthy of a sentencing enhancement.

Katelyn Polantz advanced that story last night, reporting that DOJ subpoenaed the four Proud Boys implicated by Roger Stone in his threat against ABJ for grand jury testimony.

Stone — testifying at a court hearing in 2019 to explain the post — said at the time that a person working with him on his social media accounts had chosen it.

Then, at another hearing the same year, Stone named names. Tarrio, the leader of the Proud Boys, had been helping him ​with his social media, Stone said under oath, as had the Proud Boys’ Florida chapter founder Tyler Ziolkowski, who went by Tyler Whyte at the time; Jacob Engels, a Proud Boys associate who is close to Stone and identifies himself as a journalist in Florida; and another Florida man named Rey Perez, whose name is spelled Raymond Peres in the court transcript​.

A few days later, federal authorities tracked down the men and gave them subpoenas to testify to a grand jury, according to Ziolkowski, who was one of the witnesses.

Ziolkowski and the others flew to DC in the weeks afterwards to testify.

“They asked me about if I had anything to do about posting that. They were asking me if Stone has ever paid me, what he’s ever paid me for,” Ziolkowski told CNN this week. When he first received the subpoena, the authorities wouldn’t tell Ziolkowski what was being investigated, but a prosecutor later told him “they were investigating the picture and if he had paid anybody,” Ziolkowski said. He says he told the grand jury Stone never paid him, and that he hadn’t posted the photo.

Tarrio and Engels did not respond to inquiries from CNN, and Stone declined to respond to CNN’s questions. ​The FBI’s Washington, DC, office did not respond to requests for comment from CNN.

A person familiar with the case said it had closed without resulting in any charges.

For what it’s worth, given the interest Mueller showed in Stone’s social media work, given the close ties between Stone’s social media work and that of the Proud Boys, and given that parts of the investigation against Stone continued well after his trial, it’s possible prosecutors used Stone’s comments as a way to ask other questions: about whether Stone had paid four of his closest buddies in the Proud Boys (remember they were also looking for a notebook Stone used for his 2016 book that recorded all of his communications with Trump).

That said, DC’s US Attorney’s office paid for four witnesses to come to DC to testify about whether they had had a role in Stone’s threats against the judge presiding over his case.

That raises the stakes on the things Barr said publicly about this threat. As noted, in a sentencing memo written as Barr’s urging, DOJ claimed that the threat against ABJ “overlap[ped] … with the offense conduct in this case.”

Second, the two-level enhancement for obstruction of justice (§ 3C1.1) overlaps to a degree with the offense conduct in this case. Moreover, it is unclear to what extent the defendant’s obstructive conduct actually prejudiced the government at trial.

And DOJ dismissed the import of a threat against a judge by suggesting that if it didn’t prejudice prosecutors at trial, it doesn’t much matter.

More problematic still was Barr’s testimony before House Judiciary Committee last July, just over two months before the President said the Proud Boys should “stand back and stand by.”

When Congressman Ted Deutch asked Barr if he could think of any other case where threatening to kill a witness and then threatening a judge were treated as mere technicalities, Barr kept repeating, at least five times, that “the Judge agreed with me.”

Deutch: You said enhancements were technically applicable. Mr. Attorney General, can you think of any other cases where the defendant threatened to kill a witness, threatened a judge, lied to a judge, where the Department of Justice claimed that those were mere technicalities? Can you think of even one?

Barr: The judge agreed with our analysis.

Deutch: Can you think of even one? I’m not asking about the judge. I’m asking about what you did to reduce the sentence of Roger Stone?

Barr: [attempts to make an excuse]

Deutch: Mr. Attorney General, he threatened the life of a witness —

Barr: And the witness said he didn’t feel threatened.

Deutch: And you view that as a technicality, Mr. Attorney General. Is there another time

Barr: The witness — can I answer the question? Just a few seconds to answer the question?

Deutch: Sure. I’m asking if there’s another time in all the time in the Justice Department.

Barr: In this case, the judge agreed with our — the judge agreed with our —

Deutch: It’s unfortunate that the appearance is that, as you said earlier, this is exactly what you want. The essence of rule of law is that we have one rule for everybody and we don’t in this case because he’s a friend of the President’s. I yield.

That claim — that ABJ agreed with the analysis of Barr and his flunkies — was a lie, a lie made under oath. ABJ, a liberal judge without Barr’s lifetime authoritarian claims about crime, believed the sentencing guidelines are too harsh. She did not believe these enhancements were mere technicalities.

Indeed, in ruling that the enhancement for the threat against her applied — a threat against official proceedings, the same charge being used against many of the insurrectionists — she talked about how posting a threat on social media, “increased the risk that someone else, with even poorer judgment than he has, would act on his behalf.”

I suppose I could say: Oh, I don’t know that I believe that Roger Stone was actually going to hurt me, or that he intended to hurt me. It’s just classic bad judgment.

But, the D.C. Circuit has made it clear that such conduct satisfied the test. They said: To the extent our precedent holds that a §3C1.1 enhancement is only appropriate where the defendant acts with the intent to obstruct justice, a requirement that flows logically from the definition of the word “willful” requires that the defendant consciously act with the purpose of obstructing justice.

However, where the defendant willfully engages in behavior that is inherently obstructive, that is, behavior that a rational person would expect to obstruct justice, this Court has not required a separate finding of the specific intent to obstruct justice.

Here, the defendant willfully engaged in behavior that a rational person would find to be inherently obstructive. It’s important to note that he didn’t just fire off a few intemperate emails. He used the tools of social media to achieve the broadest dissemination possible. It wasn’t accidental. He had a staff that helped him do it.

As the defendant emphasized in emails introduced into evidence in this case, using the new social media is his “sweet spot.” It’s his area of expertise. And even the letters submitted on his behalf by his friends emphasized that incendiary activity is precisely what he is specifically known for. He knew exactly what he was doing. And by choosing Instagram and Twitter as his platforms, he understood that he was multiplying the number of people who would hear his message.

By deliberately stoking public opinion against prosecution and the Court in this matter, he willfully increased the risk that someone else, with even poorer judgment than he has, would act on his behalf. This is intolerable to the administration of justice, and the Court cannot sit idly by, shrug its shoulder and say: Oh, that’s just Roger being Roger, or it wouldn’t have grounds to act the next time someone tries it.

The behavior was designed to disrupt and divert the proceedings, and the impact was compounded by the defendant’s disingenuousness.

This warning about what happens when people post inciteful language on Instagram might well have served as a warning in advance of January 6. But Barr, in testimony under oath to House Judiciary Committee, pretended that his DOJ had not ignored such a threat.

While it didn’t make the sentencing guidelines, the Proud Boy-linked threats to Credico were sufficiently serious that under FBI’s Duty to Warn, they alerted Credico to the threats. Now we learned that line prosecutors treated the threat against ABJ as sufficiently serious that they obtained grand jury subpoenas to learn more about it.

And in testimony under oath, Bill Barr pretended that ABJ agreed — and it was reasonable for his office to treat — such threats as mere technicalities.

Roger Stone Denies Palling Around with Alleged Terrorists [on January 6]

On Sunday, the NYT had a really good piece showing that six members of the Oath Keepers that “guarded” Roger Stone on January 5 and 6 went on to participate in the insurrection. Curiously, most don’t obviously show up in the FBI BOLO pictures and the face of at least one was cut off in a larger picture of Oath Keepers, which I suspect means the FBI doesn’t want to advertise any interest they have in them.

Even before the NYT report, in response to CNN and ABC reporting on his ties to the Oath Keepers, Stone wrote a rebuttal disclaiming any tie to their actions on January 6.

The rebuttal starts and ends with lies about the Mueller investigation, claiming they found no proven link with WikiLeaks when in fact the release he talks about showed multiple ongoing investigations (that is in March 2019) into his role in the Russian CFAA hack, and then claiming he was investigated for treason, and not conspiracy.

These are the very same news outlets who failed to report that their previous claims against me – that I was aiding the Russian state or a collaborator with Wikileaks proved to be completely false according to the US Justice Dept. Those who made those accusations failed to report the court-ordered disclosure by the DOJ, the last actions of Mueller’s report in which they admitted they had no such evidence whatsoever and even if they had proven a link between me and Wikileaks, which they found no evidence of, those activities would not have been illegal.

[snip]

The very same fake news media outlets who defamed me and insisted falsely that I was guilty of treason and other high crimes and then failed to acknowledge that an unlimited $30 million-dollar investigation provided no such evidence now seek to use me a clickbait and an easy target with entirely false allegations that I had any role whatsoever in the politically stupid, destructive and illegal acts that took place at the US Capitol on January 6th.

So we should assume that in spite of Stone’s self-publicized recommitment to Catholicism, he continues to lie as blatantly as he always has.

Consider how he denies any involvement in events that have been charged — against the Oath Keepers as well as against Stone’s buddies in the Proud Boys — as a conspiracy to hinder the official proceeding of counting the certification of the Electoral College vote. One strand of his defense is that he didn’t leave the hotel on January 6 until he left for his plane (reportedly, because his speech at the rally had been cut).

These jackals in the media, who know better, again make baseless accusations against me using conjecture and “guilt by association” to imply that I was somehow involved in the illegal events of January 6th. I was not present, I knew nothing about them and denounced them on my now-defunct PARLER feed when I saw the images on TV.

The claims by these so-called journalists are categorically false as I was not present on the Ellipse, did not march to the Capitol, was not on the Hill and, like AOC was not at the Capitol that day.

In fact, other than the brief moments out in front of the Williard Hotel which CNN falsely reported I was departing from, I never left the Williard Hotel property because Hotel management prohibited congregating in the lobby due to the Mayor’s Covid 19 restrictions. Therefore I never left the hotel property on January 6th until leaving for Dulles Airport around 6:00 P.M.

[snip]

In fact, I never left the grounds of the Willard Hotel.

I stepped outside briefly when the hotel objected to anyone congregating in the lobby due to Covid-19 declarations by the Mayor.

Of course, that’s only a denial about his actions on January 6. The conspiracies charged against the Oath Keepers and the Proud Boys began weeks earlier, in preparation.

He spends a good deal of time denying he knew of any wrong-doing from the Oath Keepers and — thrown in once almost as an afterthought — the Proud Boys.

CNN rushes to characterize the Oath Keepers as criminals, which I have not seen any evidence of, and to my knowledge has never been proven in any court. I reserve the right to change my opinion if anything surfaces, which I am unaware of today. Based on what I have seen to date, ABC, CNN, and all of the low-rent left-wing advocacy news/smear sites are engaged in one vicious “guilt by association” campaign of distortion and baseless conjecture.

[snip]

If the Oath Keepers are the terrorists as some in the media claim and were involved in the planning and execution, I was not aware of any such thing.

[snip]

I know of no wrongdoing by the Oathkeepers or the Proud Boys.

But he’s talking about whether they are criminals, terrorists, or engaged in wrong-doing, not if they engaged in a concerted plan to disrupt the counting of the Electoral College vote.

He does, ultimately, say that if there’s credible evidence of a conspiracy against them, they should be charged for that (in statements on Parler that have since been deleted, he condemned the violence).

If there is evidence of that and if individual members of the organization committed unlawful acts, they should be prosecuted. If new credible information surfaces that reveals a conspiracy, everyone involved in such a conspiracy should be prosecuted.

It’s that line about a conspiracy I find most curious, given thats what has been charged. In the video from January 6, someone asks him if “we have this today.” He responds, seemingly acknowledging common understanding of what “this” is, “We shall see.” That’s the kind of intent that shows up in social media that DOJ has cited in charging documents.

More interestingly, Stone admits he raised money for security for January 6 (an observation MoJo’s Dan Friedman made), but says that the people guarding him were, instead, volunteers. The Oath Keepers’ recruiting post for the day actually invoked Stone’s name in talking about their “security” function.

Just as we have done at all the previous rallies in DC since the election, Oath Keepers volunteers will be conducting PSDs for multiple high profile speakers over both days, and our teams will be either directly responsible for event security or assisting event security on both days.   We will also have roving teams out that will be on the lookout for Antifa/communist terrorists who like to attack the weak and vulnerable.  We will be providing free security escorts to any patriot who needs one, into the night.   Just be on the lookout for men wearing our Oath Keepers hats, shirts, or patches, and ask them for help, and they will help you.    Our ethos is “first ones in, last one’s out” and we will stay out as late as we have to in order to keep the vulnerable safe from Antifa street thug terrorists.

As always, while conducting security operations, we will have some of our men out in “grey man” mode, without identifiable Oath Keepers gear on.   For every Oath Keeper you see, there are at least two you don’t see.   That keeps the bad guys uncertain of how many of us there are, or where we are.

Over the years, Oath Keepers has conducted hundreds of highly successful volunteer security operations all over the nation, protecting patriots from communist terrorist assault.  From the streets of Berkely, [sic] CA (two separate rallies), to Portland, Boston, Washington DC (six times and counting), Dallas, Austin, Sacramento, etc, including providing volunteer security escorts outside twelve Trump campaign rallies, and many PSD details for high profile VIPs, such as Roger Stone, as well as many elected officials and election fraud whistle-blowers and patriot office holders.   Our men are skilled “quiet professionals” who take pride in doing their work efficiently and effectively, without drama. [my emphasis]

Remember: way back during Stone’s Stop the Steal 2016 incarnation, there were questions about the propriety of his fundraising, and the government showed at Stone’s trial that Stone was asking Rick Gates for lists and asking Steve Bannon, while he was Campaign CEO, for help getting funding from Rebekah Mercer. This time around, he explicitly raised money, but says it didn’t get spent, on what would be funds for people who ended up having a key role in the attack.

For conspiracies that started months ago, the question is not whether Roger Stone was at the Capitol swinging a baseball bat on January 6. The question is whether he entered into an agreement to disrupt the constitutionally mandated official event of counting the votes and took overt acts — before January 6 or on that day — to advance that goal.

The Insurrection Affidavits Don’t Show Where the Insurrection Was Organized

The normally very rigorous Thomas Brewster has a piece purporting to fact-check Sheryl Sandberg’s claim, made days after the January 6 insurrection, that the insurrection wasn’t organized on Facebook.

“I think these events were largely organized on platforms that don’t have our abilities to stop hate and don’t have our standards and don’t have our transparency,” said Sheryl Sandberg, Facebook chief operating officer, shortly after the Capitol Hill riots on January 6.

The piece has led both bad faith and good faith actors to grasp on the story to claim that Facebook is responsible for the violence.

Brewster purports to measure that by seeing how many mentions appear in the charging documents for the 223 people included on GWU’s list of arrestees.

But a few paragraphs later, Brewster admits he’s not measuring on what platform the riot was organized, but instead which was most popular among rioters.

Whilst the data doesn’t show definitively what app was the most popular amongst rioters, it does strongly indicate Facebook was rioters’ the preferred platform.

Even that is not proven (though it may well prove to be true), but obviously which platform is most used among rioters to boast about the riot is a very different question than on which platform (if any) the insurrection was organized.

Here’s why:

  • At least half the existing affidavits are a measure of which riot attendees were most likely to be outed and how
  • Expect parallel construction
  • There are a lot of dangerous rioters who’ve not yet been charged
  • The currently accused in no way represent all the known people who might be considered organizers of the riot or the larger operation
  • The existing affidavits are no measure of what platforms actual organizers used to organize

At least half the existing affidavits are a measure of which riot attendees were most likely to be outed and how

The police made just a handful of arrests on January 6, with the biggest component being curfew violators who did not even provably enter the Capitol (and so those non-federal cases should not be included in the analysis of rioters, as Brewster did).

In the four and a half weeks since the riot, the cops have engaged in a kind of triage, arresting those whom they could easily identify and then, over time, prioritizing those who — from video evidence of the insurrection — appeared to have committed more dangerous crimes. That means in the days after the insurrection, arrests largely focused on the people who appeared the most outlandishly stupid in videos, those whose own social networks of family, work acquaintances, and high school friends disapproved of their participation in the riot and so called the FBI with a tip, or those who identified themselves in media interviews (which often led to family, work acquaintances, and high school friends to then alert the FBI).

To understand the affidavits, it’s important to realize that any person who entered the Capitol without a legitimate purpose on January 6 (that includes a number of people who videoed the event but had no media credentials) were committing two crimes, both tied to it being the Capitol. So all the FBI would need to charge someone is to prove that they entered the building.

About half the current arrestees were charged with just these trespassing crimes, yet many of these people were among the first arrested. These people are in no way the organizers of the riot, and many of them are just Trump supporters who were caught up in the crowd. Some even credibly described trying to de-escalate the situation (including one such guy who got arrested because he had the misfortunate to show up in videos of the guy who stole Pelosi’s lectern).

The measure of how these people were arrested is quite often a measure of the fact that they shared their memories of the day or were caught by others who did. And to the extent that this happened on Facebook, it likely happened because Facebook is the platform where people have their broadest social networks, making it more likely that a lot of people who don’t sympathize with the riot would have witnessed social media content talking about it. Facebook is where ardent Trump supporters still share networks with people who vehemently oppose him.

In other words, in this initial arrest push, the people who bragged on Facebook were among the most likely to be arrested precisely because the network includes a broader range of viewpoints. It’s a measure of reach — and the political diversity of that reach — and not a measure of the centrality of the platform to the planning or violence.

Expect parallel construction

As noted, in the weeks since the insurrection, some agents at the FBI have obviously shifted to a reverse approach: rather than arresting those against whom tips came in from aggrieved ex-wives and people who were owed money, the FBI started to identify which rioters were the most dangerous and prioritize figuring out who they were.

One type of more dangerous rioter would be those with institutional ties that lead the FBI to believe there might be something more going on. But these are just arrest affidavits, which the FBI is acutely aware will be publicly scrutinized. As every single one of them say, they don’t reflect the totality that an Agent might know about the person. And in those cases, we should expect the FBI to parallel construct what they know about people and how they came to know it.

Social media is a wonderful way to do that.

And it does seem that the FBI relied on social media to establish probable cause for such people. Take the Lebanese-born woman who started engaging in the 3% community in November, which the FBI cites to Facebook. Or consider how the FBI pretends they did not know who Nick DeCarlo was until he showed up in Nick Ochs’ Twitter feed. Both rely on social media (in the latter case, one piece of evidence is something researchers found on Telegram and posted on Twitter, and so should be chalked up in the “uses Telegram” column).

But measuring how the FBI parallel constructed other knowledge is not a measure of what social media platforms people primarily use.

There are a lot of potentially dangerous rioters who’ve not yet been charged

As noted, one way the FBI shifted focus after the initial arrests of people identified by their disapproving family members was by identifying people involved in assaults — first of officers (designated by AFO), and then the media (designated by AOM) — and trying to identify them, in part through the use of Wanted posters (BOLO).

To date, the FBI has released 223 BOLOs, of which 40 precede the shift of focus to those involved in assault (and so include people who caught attention for another reason, such as the use of a Confederate or Nazi imagery). The FBI has arrested around 35 people identified in BOLOs, thus leaving around 190 people that the FBI has identified to be of particular interest based off video images, that they have not yet arrested.

For what it’s worth, I suspect that the FBI has identified a goodly number of these people, and may even have sealed complaints against some of them but is holding off on an arrest to gather more evidence. That is, they can arrest them now, but would prefer not to until they shore up their case. In a number of cases where people were identified off of BOLOs, the people turned themselves into the FBI but denied any physical contact was anything but a love tap (here’s one example, but there are others), potentially making it harder to prosecute for the violence.

If and when these people are identified, they may well prove to have used Facebook. But thus far, this group of people has shown better operational security and (unsurprisingly) a greater likelihood to flee or to destroy evidence.

But whatever their Facebook use, when counting the numbers of the 800 people who committed a trespass crime on January 6 by entering the Capitol, of which 200 have been arrested, it’s worth noting that almost another 200 — some of the greatest concern — have not been provably identified by bragging Facebook posts yet.

The currently accused in no way represent all the known people who might be considered organizers of the riot or the larger operation

Thus far, the government has filed the bare outlines of conspiracy charges against both the Oath Keepers (who spoke of a plan they had trained for) and the Proud Boys (who moved in obviously coordinated fashion communicating via radio on January 6). But those conspiracy charges currently include just three and two people, respectively (with a sub-conspiracy charged against two more Proud Boys).

According to claims quoted in charging documents, there were anywhere from 30 to 65 Oath Keepers involved in the riot (including a busload from North Carolina). There are at least three other key Proud Boys that have not been arrested for the riot (Enrique Tarrio, of course, was arrested days earlier for a different racist attack), and about half of those that have were charged with just the trespassing crimes.

In general, these people are not currently identified in BOLO posters.

In other words, this is a set of people — perhaps another 40 on top of the 190 outstanding BOLO figures — that the FBI likely considers key suspects.

And that’s just the organizers of the riot. That doesn’t include James Sullivan, who appears to have been in communication — via text — with Rudy Giuliani.  It doesn’t include people like Ali Alexander and Rudy and possibly Roger Stone who would tie the riot to the larger effort to delay the vote (which is the object of both the Oath Keeper and Proud Boys conspiracy). We know from Stone’s prosecution, at least, that he was de-platformed long ago and learned to use encrypted apps by August 2016.

In any case, before you can make claims about what platforms were used to organize the insurrection, you first need to identify the universe of people believed to have organized it. Right now, perhaps as few as 20 of the 200 people who’ve been arrested should be considered leaders of it, and there are probably at least another 40 who might be considered organizers of the riot itself who have not been arrested yet.

The existing affidavits are no measure of what platforms actual organizers used to organize

To be sure, both of the groups identified in conspiracies (and Three Percenters) made use of Facebook. As Brewster cited, accused Oath Keeper conspirator Thomas Caldwell posted updates to Facebook during the siege, and the co-conspirators did use Facebook to communicate both publicly and privately before the event. Among those referencing the Proud Boys in affidavits, Andrew Ryan Bennett uploaded video to Facebook,  Gabriel Garcia uploaded video to Facebook, and Daniel Goodwin used Instagram and Twitter. As noted above, Nick Ochs had a campaign Twitter account.

But some of the more substantive public communications from both groups, including important communications from before the riot, was posted on Parler. And both groups used other means — Zello for the Oath Keepers and radios for the Proud Boys — to communicate operationally during the day.

With the Proud Boys, in particular, Facebook and Twitter have long tried to exclude them from the platform, both because their speech violated platform guidelines but also because after expulsion the group tried to bypass that expulsion.

Importantly, aside from some quotations from Jessica Watkins’ Zello account and those Facebook messages, the FBI hasn’t shown what it has of operational communications between these groups, and it’s unlikely to do so, either, until trial. The FBI is not going to share how much it knows (if anything) about the operational contacts of these groups until it has to. Which makes any conclusions drawn from what it is willing to show of questionable validity.

Don’t get me wrong: I’m happy to argue that Sheryl Sandberg is one of a number of Facebook executives who should be ousted. I agree that Facebook has fostered right wing violence, not least with the settings of its algorithms (which is the opposite of what Glenn Greenwald wants the Facebook problem to be). Because it has such wide breadth, it is a platform where people not already radicalized might get swept up in disinformation.

But I know of little valid evidence yet about Facebook’s role in organizing the insurrection, nor is there likely to be conclusive evidence for some time yet.

Update: Changed language to describe Tarrio’s alleged vandalism of a traditionally black church to make it clear he is not accused of assaulting another person.

The Soft Bigotry of Expecting the Commander in Chief to Only Tweet

Based on what source does the lawyer for Donald Trump — a client who never listened to security briefings when he used to be President — state (in an interview with Maggie Haberman, but not in his written defense) that the January 6 insurrectionists planned their attack in advance?

Mr. Schoen pointed to another potential argument that could help Mr. Trump, one not related to free speech: that at least some of the Trump supporters who stormed the Capitol planned their attack in advance, suggesting that Mr. Trump was not the inciting force.

“I have no reason to believe anyone involved with Trump was in the know,” he said of the violence that unfolded at the Capitol.

This defense doesn’t help Doug Schoen as much as he thinks. After all, the House brief lays out how, even before the Proud Boys were overtly planning for the insurrection (and meeting with Lindsey Graham and finding a spot on a tour of the White House), Trump had called on the extremist group to

During a debate on September 29, for instance, he told the Proud Boys— a violent extremist group with ties to white nationalism—to “stand back and stand by.”48

[snip]

On January 2, for example, Fox News reported on a social media declaration by Proud Boys Leader Enrique Tarrio that the Proud Boys would come to the January 6 rally prepared for violence.59 Another Proud Boys organizer said, “We are going to smell like you, move like you, and look like you. The only thing we’ll do that’s us is think like us! Jan 6th is gonna be epic.”60

As someone who has spent much of the last four weeks tracking what is publicly known about the terrorist attack, anyone following closely enough to know how the Proud Boys, especially, plotted in advance also knows that Trump was coordinating with them going back months and his rat-fucker Roger Stone was coordinating with them even longer, also knows that the mobs breaking into the Capitol timed their move closely with (among other things) Trump’s speech, and knows as well that Trump and Rudy were both coordinating with events on the Hill using the mob as a delaying tactic.

But Schoen seems to be considering talking about what someone who refused briefing knew and did not know about an attack while he was still President.

I especially find Schoen’s certainty about what an ongoing investigation shows given a fairly remarkable passage in the House trial brief. There’s an 11-paragraph section describing, “President Trump’s Dereliction of Duty During the Attack.” The first describes how Trump watched in delight.

As armed insurrectionists breached the Capitol—and as Vice President Pence, the Congress, and the Capitol Police feared for their lives—President Trump was described by those around him as “borderline enthusiastic because it meant the certification was being derailed.”141 Senior administration officials described President Trump as “delighted” and reported that he was “walking around the White House confused about why other people on his team weren’t as excited as he was as you had rioters pushing against Capitol Police trying to get into the building.”142

But it’s another five paragraphs before the House brief mentions that Trump was the Commander in Chief.

During this time, not only did President Trump fail to issue unequivocal statements ordering the insurrectionists to leave the Capitol; he also failed in his duties as Commander in Chief by not immediately taking action to protect Congress and the Capitol. This failure occurred despite multiple members of Congress, from both parties, including on national television, vehemently urging President Trump to take immediate action.

That is, the House brief focuses on what Trump did or didn’t tweet, and what victims he never called (while calling Tommy Tuberville to coordinate his delaying tactics).

But it barely mentions that Trump sat in the White House watching an attack on the Nation’s Capitol — one his lawyer now suggests he had some knowledge of — and he did literally nothing to intervene. True, there is a thoroughly unreliable Vanity Fair piece quoting Trump’s flunkies claiming that Trump made preparations the night before. But that account doesn’t match the known events, nor does it accord with the long delay in deploying the Guard troops.

In the middle of the impeachment case against Trump is a tacit admission not just that Trump did nothing as he watched a terrorist attack on the Capitol, but no one expected him to be able to do more than Tweet.

The former President’s defense claims, with no proof, that he faithfully executed his duty to protect and defend the Constitution and served to the best of his ability.

To the contrary, at all times, Donald J. Trump fully and faithfully executed his duties as President of the United States, and at all times acted to the best of his ability to preserve, protect and defend the Constitution of the United States, while never engaging in any high Crimes or Misdemeanors

[snip]

It is denied he betrayed his trust as President, to the manifest injury of the people of the United States. Rather, the 45th President of the United States performed admirably in his role as president, at all times doing what he thought was in the best interests of the American people. The 45th President believes and therefore avers that in the United States, the people choose their President, and that he was properly chosen in 2016 and sworn into office in 2017, serving his term to the best of his ability in comportment with his oath of office.

Perhaps that’s right. But if that’s true, it’s a confession that when the nation’s capital came under attack, Trump was helpless to do the least demanded of him as Commander in Chief.

Yes, the case against Trump is deeply rooted in his Tweets inciting terrorists and he should be impeached based just on those and his speech. But along the way, all sides seem to admit that Trump didn’t even consider doing anything as Commander in Chief as the country was attacked.

Whither the Douglass Mackey Investigation?

Yesterday, the FBI arrested Douglass Mackey, a far right activist who used the pseudonym Ricky Vaughn, for his efforts in 2016 to suppress Clinton voters. The complaint charges Mackey with a conspiracy against others’ Constitutional rights under 18 USC §241. I want to unpack what the complaint says about where this investigation came from and where it might head, if anywhere.

Mackey and others led almost 5,000 people to miscast their 2016 vote

There’s a lot of language in the complaint about Mackey’s social media efforts — which has a number of right wingers, including those who were tangentially involved in this effort, whining about their own First Amendment rights. Ultimately, though, the crime boils down to ads that Mackay made and popularized in the weeks leading up to the 2016 election encouraging Hillary voters to text their vote. If people did so, they would have thought their vote was cast, when in effect they would have texted it to a void.

The complaint notes that the text code Mackey used for the campaign got 4,900 responses.

According to iVisionMobile, the company that owned the Text Code listed in the two Deceptive Images distributed by MACKEY, at least 4,900 unique telephone numbers texted “[Candidate’s first name]” or some derivative to the Text Code on or about and before Election Day, including many belonging to individuals in the Eastern District of New York. Of the approximately 4,900 numbers that corresponded with the Text Code, approximately 4,850, or 99%, sent their texts after MACKEY first tweeted a Deceptive Image from MACKEY Account 2. [my emphasis]

Effectively, then, the complaint argues that Mackey tricked almost 5,000 people to miscast a Hillary vote, thereby depriving them of their right to cast a valid vote.

This investigation was started and finalized under a Trump US Attorney

Right wingers are also whining that the timing of this complaint shows that the Deep State is moving against Trump supporters immediately after his departure.

That makes no sense.

First, at least two key steps in this investigation, interviews of Paul Nehlen and filmmaker Loren Feldman, happened last fall.

On or about October 5, 2020, FBI agents conducted a voluntary interview with the Congressional Candidate. The Congressional Candidate confirmed that “Ricky Vaughn’s” true name was MACKEY, and that MACKEY had offered his services to his/her campaign. The Congressional Candidate added that, although s/he had never met MACKEY in person, s/he frequently communicated with MACKEY by telephone and via MACKEY’s personal email accounts.

On or about October 19, 2020, FBI agents conducted a voluntary interview of the Filmmaker who again confirmed that s/he had interviewed MACKEY in 2016 and that s/he knew MACKEY at that time by his Twitter name of “Rickey Vaughn.” The Filmmaker futher confirmed that s/he had subsequently been shown a photograph of MACKEY and confirmed that the individual in the photograph was the individual the Filmmaker had met as “Ricky Vaughn.”

In October 2020, as now, the Brooklyn US Attorney was Seth DuCharme. While DuCharme spent his career in EDNY, he was a key aide to Bill Barr, both as Counselor and then PADAG. In July, Barr effectively swapped DuCharme back into EDNY and moved the then US Attorney, Richard Donoghue, to PADAG.

In other words, the guy whose name will be on this indictment is among Barr’s most trusted aides.

DuCharme even issued a strong statement about this prosecution when it was announced.

“There is no place in public discourse for lies and misinformation to defraud citizens of their right to vote,” said Seth D. DuCharme, Acting U.S. Attorney for the Eastern District of New York. “With Mackey’s arrest, we serve notice that those who would subvert the democratic process in this manner cannot rely on the cloak of Internet anonymity to evade responsibility for their crimes. They will be investigated, caught and prosecuted to the full extent of the law.”

I argued in this post that early indictments in the Biden Administration would (because he’s not immediately replacing all US Attorneys) be approved by Trump loyalists, and this is a perfect example of that.

Actions completed in 2016 are being charged in 2021

One of the most interesting questions about this complaint is why actions that were completed in 2016 and didn’t appear to take much investigation beyond some warrants to Twitter and two interviews were only charged in 2021.

It’s not entirely clear where this investigation came from, but the most likely is that when HuffPo originally exposed Mackey in 2018, someone at the FBI or DOJ took notice. That seems all the more likely given that the complaint relies on some of the research in that original story, including that Mackey had a reach on Twitter well outside his follower count.

There was no mistaking Ricky Vaughn’s influence. He had tens of thousands of followers, and his talent for blending far-right propaganda with conservative messages on Twitter made him a key disseminator of extremist views to Republican voters and a central figure in the “alt-right” white supremacist movement that attached itself to Trump’s coattails. The MIT Media Lab named him to its list of top 150 influencers on the election, based on news appearances and social media impact. He finished ahead of NBC News, Drudge Report and Stephen Colbert. Mainstream conservatives didn’t know they were retweeting an avowed racist and anti-Semite, but they liked what Ricky Vaughn had to say.

So the simplest explanation for the genesis of this investigation is that article.

There are other possibilities, though.

For example, as that original HuffPo story noted, Mackey magnified one of the Internet Research Agency’s most effective Twitter accounts, TEN_GOP, which many right wingers mistakenly believed was the official account of Tennessee’s Republican Party.

In the data set of significant accounts we looked at, Ricky Vaughn retweeted @TEN_GOP the most, by far. Although Twitter shut down his @Ricky_Vaughn99 handle in October 2016, another handle he possibly used, @RapinBill, took over and retweeted @TEN_GOP at least 162 times between early March and late August 2017. (@RapinBill also retweeted @Pamela_Moore13, another Kremlin-controlled account, at least 37 times during this period.)

Some far-right sources suggest that @RapinBill might be an account run by another anonymous bad actor, an assertion for which there is no proof, but the account has nevertheless capitalized on the Ricky Vaughn brand of far-right intolerance and fake news. We will update this story as we learn more.

Curiously, @RapinBill, which is still active and followed by Donald Trump Jr., does not appear to have received a single reciprocal retweet from @TEN_GOP during the time period we looked at, perhaps indicating an attempt to conceal the connection. @RapinBill retweeted @TEN_GOP until the end. When Twitter finally shut down @TEN_GOP last August, after having ignored numerous complaints about the Russian account, Ricky Vaughn did not take it well. He groused that @TEN_GOP had been “banned for supporting our president.” Within hours, he was steering traffic to the Kremlin’s backup account:

Another possibility is that this investigation arose out of Mueller’s investigation of Mike Flynn and Roger Stone’s focus on social media during the 2016 election. As Luke O’Brien (the reporter who first unmasked Mackey) noted in his coverage of the complaint, Mackey had ties to efforts involving Flynn and Stone in 2016.

Mackey and the three co-conspirators that HuffPost was able to identify are closely associated with a group of high-level pro-Trump political saboteurs known as “MAGA3X” that had ties to the Trump campaign and Trump’s disgraced former national security adviser Michael Flynn.

Presided over by far-right Twitter influencer Mike Cernovich, white nationalist funder Jeff Giesea, who is a disciple of billionaire Peter Thiel, and neo-Nazi collaborator Jack Posobiec, who counts Roger Stone as a mentor, MAGA3X spearheaded the Pizzagate disinformation campaign on social media that targeted Hillary Clinton in the weeks before the 2016 election.

Mueller’s team focused closely on both Flynn and Stone’s involvement in social media in 2016. In August 2016, Stone pitched both Paul Manafort and Steve Bannon on how to win ugly using social media. The overt parts of Stone’s effort involved an Erik Prince-funded effort to suppress the black vote. One of the still-sealed warrants pertains to multiple Twitter accounts that don’t appear to be Stone’s. And Mueller interviewed several people who worked with Stone on social media campaigns (and asked Andrew Miller about Alex Jones’ campaigns, as well).

The biggest reason to doubt that this investigation comes out of Mueller’s is the venue. While Mackey has ties to Brooklyn, at the time of his actions, he was living in Manhattan, SDNY rather than EDNY. The complaint seems to claim venue based on victims who reside in EDNY, bolded in the blockquote above, not Mackey’s location at the time of his actions. If Mueller had referred this, he presumably would have referred it to where the actions took place, SDNY.

It’s also possible it comes out of the Intelligence Committees’ investigations into disinformation. As Quinta Jurecic noted last night, Mackey’s ads were among those Twitter shared with the committees in 2018, though not by name. But again, the logical place to pick that up would have been SDNY or even DC.

There’s one other possibility. Last fall, in an effort to feed Trump’s conspiracy theories, Barr affirmatively mobilized voter fraud investigations. If someone had been sitting on the evidence unveiled in 2018, Barr’s action would have provided the opportunity to wrap it up into an indictment, effectively using GOP claims of voter fraud as the excuse to prosecute GOP voter fraud.

DOJ charged just one member of a conspiracy

Perhaps the most enticing part of this complaint is that it explicitly includes four other people as co-conspirators.

It describes the actions of Mackey’s co-conspirators to include:

  • Discussing how best to optimize social media campaigns
  • Retweeting Mackey’s campaigns
  • Running several DM-based strategy groups called the Madman Group, the War Room, Fed Free Hatechat
  • Fine-tuning some of the ads used
  • Posting some of the actual ads
  • Adding Mackey’s new accounts back into the DM collaborations after Twitter shut down his accounts

It’s not entirely clear how EDNY chose to treat these four as co-conspirators as distinct from other Twitter users and DM collaboration participants.

O’Brien IDs three of the four co-conspirators:

The complaintlists four co-conspirators referred to only by Twitter “user IDs,” a unique string of numbers assigned to each Twitter account. HuffPost can report that one co-conspirator is a prominent alt-right botmaster who goes by “Microchip” and was instrumental in making pro-Trump and anti-Hillary Clinton hashtags and content go viral on Twitter during the 2016 election. A fascist accelerationist who has expressed admiration for Adolf Hitler and Nazism, Microchip claims to have been involved in the early spread of the QAnon conspiracy cult and repeatedly told this reporter that his goal was to destroy the United States.

Another of Mackey’s co-conspirators is Anthime “Baked Alaska” Gionet, a pro-Trump white nationalist who was arrested on Jan. 16 for his involvement in storming the Capitol on Jan. 6. Gionet also participated in the deadly white nationalist “Unite the Right” rally in Charlottesville, Virginia, in 2017. (A New York Times story reported Wednesday afternoon that Gionet was a co-conspirator, citing a source close to the investigation, and HuffPost can confirm that reporting based on the Twitter ID cited in the complaint.)

HuffPost was able to link the Twitter IDs in the complaint to Gionet and Microchip through previously collected Twitter data, interviews and evidence left by both extremists on other websites. In direct messages with this reporter last year, Microchip also confirmed that he was using the Twitter account associated with the user ID listed in the complaint.

The user ID for a third co-conspirator belongs to a pro-Trump far-right activist who goes by “Nia” and has a long history of spreading disinformation on Twitter. HuffPost has not yet been able to identify the fourth co-conspirator.

It’s unclear whether EDNY plans to add them in an indictment or not. It’s possible they just named them as co-conspirators so as to be able to use their DMs and other Tweets to build the case against Mackey (which would make it a matter of prosecutorial efficacy). It’s also possible they’ll get added when this is indicted.

Particularly given the inclusion of Baked Alaska in here, though, it’s possible that this is an effort to crack down on key far right propagandists as part of a larger crackdown in the wake of the January 6 insurrection.

There’s just one detail that suggests this might go further: the inclusion of a PIN prosecutor in the prosecution team.

Assistant U.S. Attorneys Erik Paulsen and Nathan Reilly of the Eastern District of New York, and Trial Attorney James Mann of the Criminal Division’s Public Integrity Section are prosecuting the case.

Among the other cases James Mann is or was prosecuting are the Andy Khawaja case funneling money from the UAE to both 2016 candidates (though only the Hillary side was charged; George Nader is one of the defendants) and the Elliot Broidy case, whose pardon will close out that case.

While his inclusion by no means makes this a certainty, it raises the chances that this social media activity will either be considered in the scope of campaign donations or might even involve foreign partners.

Productive Ways to Hold Trump Accountable

On Friday, Jonathan Rauch published a god-awful argument for pardoning Trump. Today, Quinta Jurecic published a much better argument that a Truth Commission would be the ideal way to hold Trump accountable, but because that probably won’t work, we need to pursue other alternatives, including prosecution.

I’ve already laid out one reason why I think we need to prosecute Trump for his role in the insurrection: because if we don’t, it’ll hamper the ability to hold dangerous people accountable. Another reason is that so many defendants are excusing their actions because the then-President ordered them to storm the Capitol (indeed, that’s one reason, according to a new WaPo report, why DOJ might not charge some of the insurrectionists), the government must make it clear that order was illegal.

Still, I think there are solutions to the problem that both Rauch and Jurecic want to resolve: how to find accountability without derailing President Biden’s Administration.

Jurecic acknowledges that Republican resistance to accountability measures will exacerbate current political divisions.

[A] post-Trump investigation pursued along partisan lines could be doomed from the start. This is the irony: The exact conditions that led to and sustained the Trump era—white grievance, a polluted media ecosystem, and political polarization—are the same conditions that will likely prevent a truth commission from succeeding.

[snip]

In the short run, any of these measures could risk making the country’s social and political divisions worse.

Rauch argues that prosecutions will derail the Biden Administration.

If we want Biden’s presidency to succeed, accountability to be restored and democracy to be strengthened, then a pardon would likely do more good than harm.

Consider, first, Biden’s presidency.

Biden has made clear in every way he can that he does not want or intend to be President Not Trump. He has his own agenda and has been impressively disciplined about not being defined by opposition to Trump. He knows Trump will try to monopolize the news and public discourse for the next four years, and he needs Trump instead to lose the oxygen of constant public attention.

Legal proceedings against Trump, or even the shadow of legal proceedings, would only keep Trump in the headlines.

Rauch also argues (fancifully, for precisely the reasons Jurecic gives that a Truth Commission would be undermined by polarization) that a non-criminal counterintelligence investigation will succeed in a way criminal investigations won’t.

It is important, then, that Trump’s presidency be subjected to a full-scale, post hoc counterintelligence scrub. There should be a public element, modeled on the 9/11 commission, and also a nonpublic, classified element. Both elements could be complicated and hindered by the criminal investigation of Trump. The criminal and counterterrorism investigations would need to be continually deconflicted; Congress would be asked to back away from inquiries and witnesses that step on prosecutors’ toes; Trump himself could plead the Fifth Amendment—an avenue not open to him were he to accept a pardon.

Ignoring for the moment the necessity of including Trump in an investigation into January 6, I agree that, to the extent possible, there needs to be some kind of accounting of what happened during the Trump Administration without turning it into partisan warfare.

Here are some ways to contribute to doing that.

Drain the swamp

Investigations into Trump for things that either are already (Russia or Ukraine) or can be (the election) turned into a tribal issue will absolutely exacerbate political division.

But there are some topics where former Trump supporters can quickly be shown how he hurt them.

For example, an inquiry into Trump’s trade war, especially into the harm done to farmers, will provide a way to show that Trump really devastated a lot of the rural voters who, for tribal reasons, nevertheless support him.

Or Trump’s grifting. In the wake of the Steve Bannon pardon, a number of Trump supporters were furious that Bannon was pardoned for cheating them, even while rioters or other more favored pardon candidates were not. Bannon’s not the only Trump grifter whose corruption demonstrably hurt Trump voters. There’s Brad Parscale’s grifting. There’s Jared Kushner’s favoritism in COVID contracting, which made the country less safe. There’s PPP abuse by big corporations at the expense of small businesses. None of this has to be explicitly about Trump; it can instead be an effort to crack down on corruption generally which by its very nature will affect Trump’s flunkies.

Have Trump dead-enders approve charges

With the exception of some egregious US Attorneys, Biden has asked the remaining US Attorneys to stay on for the moment. That defers any political blowback in the case of John Durham (who in addition to being CT US Attorney is also investigating the Russian investigation) and David Weiss (who is investigating Hunter Biden).

But it also allows people who are nominally Trump appointees to preside over at least the charging of existing investigations targeting Trump or his flunkies. The one place this is known to be true is in Southern District of New York (where Rudy is being investigated). It might be true in DC US Attorney’s office (though Billy Barr shut a lot of investigations, including into Roger Stone and Erik Prince, down). There’s Texas, where Ken Paxton is under investigation.There were hints of investigations into Jared in Eastern District of New York and, possibly, New Jersey.

If Trump US Attorneys aren’t replaced before they charge Trump or his allies, then the act of prosecution will be one approved by a Trump appointee.

Give Republicans what they think they want

Because they’re gullible, Republicans believe that the record of the Russian investigation shows corruption. What is in fact the case is that a cherry-picked and selectively-redacted set of records from the Russian investigation can be gaslit to claim corruption.

But since they’ve been clambering for Trump to declassify it all (even while both John Ratcliffe and Andrew McCabe have suggested that might not show what Republicans expect), it gives Biden’s Administration a way to declassify more. For example, there’s at least one Flynn-Kislyak transcript (from December 22, 2016) that Trump’s Administration chose not to release, one with closer Trump involvement then the others. There are materials on Alex Jones’ interactions with Guccifer 2.0. There are Peter Strzok notes showing him exhibiting no ill-will to Mike Flynn. There are records regarding Paul Manafort’s interactions with Konstantin Kilimnik on April 2016. That’s just the tip of an iceberg of very damning Russian-related records that Trump chose not to release, but which GOP demands for more can be used to justify.

Fully empower Inspectors General

One particularly absurd part of Rauch’s piece is his claim that we know all of Trump’s criminal exposure.

If he committed crimes that we don’t already know about, they are probably not of a new kind or magnitude.

As for what we do know about, it seems clear that he committed criminal obstruction of justice, for example by ordering his White House counsel to falsify federal records. But his obstruction was a process crime, already aired, of limited concern to the public and hard to get a conviction on as a stand-alone charge. There might be more to the Ukraine scandal than we know, but that matter, too, has been aired extensively, may not have been a legal violation and was appropriately (if disappointingly) handled by impeachment. Trump might have committed some form of sedition when he summoned his supporters to the streets to overturn the election, but he would have a colorable First Amendment defense, and sedition is a complicated and controversial charge that would open a legal can of worms. The real problem with Trump is not that we do not know his misdeeds but that we know so much about them, and yet he remained in office for a full term.

One piece of evidence Rauch is mistaken is his certainty that Trump’s only exposure in the Russian investigation is regarding obstruction, when (just as one example) there’s an ongoing investigation into an Assange pardon that appears to be closer to a quid pro quo; or the closed investigation into a potential bribe from Egypt. Democrats were denied a slew of documents pertaining to the Ukraine scandal, especially from the State Department. Democrats were similarly denied records on Trump’s abuse of clearance and non-official records.

One way to deal with the outstanding questions from the Trump Administration is simply to fully staff and empower the Inspectors General who have been undermined for four years. If, for example, State’s IG were to refer charges against Mike Pompeo or DOD’s IG were to refer charges pertaining to Kash Patel’s tenure, it wouldn’t be Democrats targeting them for investigation, it would be independent Inspectors General.

DOJ must be a key part of this. DOJ’s IG has already said it is investigating BJ Pak’s forced resignation. Democrats should insist this is expanded to review all of Barr’s politicized firings of US Attorneys.

As part of an effort to make sure Inspectors General do the work they should have done in real time, Biden should support the end of the OPR/IG split in DOJ, which means that the decisions of lawyers at DOJ (including those pertaining to the Ukraine scandal) are only reviewed by inspectors directly reporting to the Attorney General.

Respect FOIA

Joe Biden might not want to focus on Trump. But the press will continue to do so.

And if Biden orders agencies to treat FOIA like it is supposed to be treated, rather than forcing the press to sue if they want anything particularly interest, the press will do a lot of the accountability that courts otherwise might (and might provide reason for prosecutions). The press already has FOIAs in that have been undermined by improper exemption claims. For example, Jason Leopold has an existing FOIA into Bill Barr’s interference into the Roger Stone and Mike Flynn prosecutions. American Oversight has a FOIA into why Paul Manafort was sprung from jail when more vulnerable prisoners were not. FOIA into Trump’s separation policies have been key at reuniting families.

If such FOIAs obtained more visibility than they currently do, it would provide the visibility into some of the issues that people would love criminal investigations into.

One of the biggest scandals of the Trump Administration is how he undermined normal institutions of good governance, especially Inspectors General. If those institutions are restored and empowered, it will likely do a surprising amount of the accountability work that is so badly needed.

Julian Assange Officially Asks Trump to Pardon Him for Helping Him Get Elected

As I have noted, there’s abundant evidence that Robert Mueller investigated pardon discussions between Julian Assange and Roger Stone; that investigation appeared to be ongoing at least as of October 2020. That should make any Trump pardon of Julian Assange at least as legally fraught as any of the others he has given or is expected to give, short of a self-pardon.

Predictably, Ken Vogel makes no mention of that in his story on two parallel efforts to obtain a pardon for Assange. Nor does Vogel note that the petition submitted by Assange’s US defense attorney, Barry Pollack, includes what would be that quid pro quo in the requested scope of the pardon.

Mr. Assange should be granted a pardon to cover the conduct at issue in the pending criminal case against him and any other conduct prior to the pardon grant that could be the basis for criminal charges against him in the United States.

If Trump gave Assange a pardon with this scope, the language would amount to a pardon for helping Trump get elected, a pardon under discussion within days of Trump’s 2016 victory if not even before it. This would amount to a more generous pardon than Trump gave his own rat-fucker, Roger Stone.

Along with a misrepresentation of what the current CFAA charge against Assange is and a claim that Assange, “has already been confined longer than any person ever charged or convicted under the Espionage Act in its more than 100-year history” (effectively counting time Assange chose to hide out in the Ecuadorian Embassy while still engaged in similar acts to those he’s being prosecuted for), Pollack presents a really hysterical subset of the files Assange leaked in 2016 and 2017:

In 2016, WikiLeaks published:

  • 19,252 e-mails and 8,034 attachments from the Democratic National Party leadership, which resulted in the resignation of five top officials who had taken actions during the primaries in favor of Hillary Clinton over Bernie Sanders.

In 2017,WikiLeaks:

  • exposed lax security in the CIA unit dedicated to malware development, a fact acknowledged by an internal CIA report into the publication, which was subsequently revealed by Senator Ron Wyden; and
  • published the “the Russia Spy files,” documents relating to Russia under Vladimir Putin, including releases about surveillance contractors in Russia.

Pollack leaves off, among other things, the Podesta files involved in the seeming quid pro quo (which I guess might otherwise make him party to the crime). And he includes the Russian files for the same reason WikiLeaks published the already published files — as propaganda to cover up his role as a cut-out for Russia. The Vault 7 release, of course, happened during the period when — Pollack claims — Assange was “confined” as if it had anything to do with Espionage charges.

The real focus of the Vogel story, however, is how — in the wake of Trump’s coup this week — a bunch of Australian buddies of Assange just signed a “pro bono” contract with a lobbyist to push for the pardon.

Mr. Davis, who is now a lawyer specializing in national security and whistle-blower cases, is on the board of Blueprint for Free Speech, an Australia-based nonprofit group that advocates for press freedoms and whistle-blower protections. The group, which was started by Suelette Dreyfus, a former journalist who is an old friend and collaborator with Mr. Assange, signed a pro bono contract on Saturday with the lobbyist Robert Stryk to seek a pardon for Mr. Assange.

During Mr. Trump’s presidency, Mr. Stryk, who is well connected in Trump administration circles, has developed a lucrative business representing foreign clients in precarious geopolitical situations.

He has worked for a jailed Saudi prince who had fallen out of favor with his country’s powerful de facto leader, as well as the administration of President Nicolás Maduro of Venezuela, which the Trump administration considers illegitimate. Mr. Styrk also worked for Isabel dos Santos, the daughter of Angola’s former president, who is accused of embezzling millions of dollars from a state oil company she once headed, as well as the government of the former Congolese president Joseph Kabila, which had faced American sanctions for human rights abuses and corruption.

Disclosure: my travel expenses were paid to speak at events in Australia in 2017 by Dreyfus’ organization.

Again, I’m perfectly happy with the decision that our prisons are too inhumane for Assange. Pollack is a superb lawyer and Assange is certainly entitled to a vigorous defense (the first real hint of which shows up in the petition). But this whole effort is yet more of a propaganda campaign hiding what Assange has become and the role Assange had in electing the guy who just attempted a coup to stay in power. That does not serve journalism, though it may give Trump enough cover to pay off his 2016 campaign dues to Russia.

Bill Barr Keeps Pretending (Falsely) That He Didn’t Encourage Yesterday’s Insurrection

Disgraced former Attorney General Billy Barr has released two statements condemning yesterday’s terrorist attack on the Capitol. First, a comment released via his spox,

Then he released a statement to the AP’s Barr-chummy DOJ reporter:

Former Attorney General William Barr says President Donald Trump’s conduct as a violent mob of his supporters stormed the U.S. Capitol was a “betrayal of his office and supporters.”

In a statement to The Associated Press, Barr said Thursday that “orchestrating a mob to pressure Congress is inexcusable.”

Barr was one of Trump’s most loyal and ardent defenders in the Cabinet.

His comments come a day after angry and armed protesters broke into the U.S. Capitol, forcing Congress members to halt the ongoing vote to certify President-elect Joe Biden’s election and then flee from the House and Senate chambers.

Barr resigned last month amid lingering tension over the president’s baseless claims of election fraud and the investigation into Biden’s son.

Of course, Barr himself encouraged the violence yesterday.

That’s because, less than a year ago, he treated a threat against a sitting judge issued by some of the men who organized yesterday’s actions as a “technicality” not worthy of a sentencing enhancement for Roger Stone.

Two years ago, after Roger Stone posted a picture of Amy Berman Jackson with crosshairs on it, Jonathan Kravis asked Stone who came up with the picture. The President’s rat-fucker named two of his buddies who are key leaders of the Proud Boys, Jacob Engles and Enrique Tarrio.

Amy Berman Jackson. How was the image conveyed to you by the person who selected it?

Stone. It was emailed to me or text-messaged to me. I’m not certain.

Q. Who sent the email?

A. I would have to go back and look. I don’t recognize. I don’t know. Somebody else uses my —

THE COURT: How big is your staff, Mr. Stone?

THE DEFENDANT: I don’t have a staff, Your Honor. I have a few volunteers. I also — others use my phone, so I’m not the only one texting, because it is my account and, therefore, it’s registered to me. So I’m uncertain how I got the image. I think it is conceivable that it was selected on my phone. I believe that is the case, but I’m uncertain.

THE COURT: So individuals, whom you cannot identify, provide you with material to be posted on your personal Instagram account and you post it, even if you don’t know who it came from?

THE DEFENDANT: Everybody who works for me is a volunteer. My phone is used by numerous people because it can only be posted to the person to whom it is registered.

[snip]

Jonathan Kravis. What are the names of the five or six volunteers that you’re referring to?

Stone. I would — Jacob Engles, Enrique Tarrio. I would have to go back and look.

Not only did Stone appear at the rally before yesterday’s insurrection, but Tarrio was arrested on his way to the riot for crimes he committed during the last demonstration in support of Trump, an attack on a historic Black church in DC and possession of weapons.

Prosecutors asked Judge Jackson to add a two-level sentencing enhancement for this action, in which Stone’s Proud Boys associates crafted a threat against her.

Finally, pursuant to U.S.S.G. § 3C1.1, two levels are added because the defendant “willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the prosecution of the instant offense of conviction.” Shortly after the case was indicted, Stone posted an image of the presiding judge with a crosshair next to her head. In a hearing to address, among other things, Stone’s ongoing pretrial release, Stone gave sworn testimony about this matter that was not credible. Stone then repeatedly violated a more specific court order by posting messages on social media about matters related to the case.

This enhancement is warranted based on that conduct. See U.S.S.G. § 3C1.C Cmt. 4(F) (“providing materially false information to a magistrate or judge”); see, e.g., United States v. Lassequ, 806 F.3d 618, 625 (1st Cir. 2015) (“Providing false information to a judge in the course of a bail hearing can serve as a basis for the obstruction of justice enhancement.”); United States v. Jones, 911 F. Supp. 54 (S.D.N.Y. 1996) (applying §3C1.1 enhancement to a defendant who submitted false information at hearing on modifying defendant’s conditions of release).

The sentencing memo that Bill Barr had drawn up to justify a more lenient sentence dismissed this enhancement which it admitted “technically” applied.

Notably, however, the Sentencing Guidelines enhancements in this case—while perhaps technically applicable— more than double the defendant’s total offense level and, as a result, disproportionately escalate the defendant’s sentencing exposure to an offense level of 29, which typically applies in cases involving violent offenses, such as armed robbery, not obstruction cases. Cf. U.S.S.G. § 2B3.1(a)-(b).

[snip]

Second, the two-level enhancement for obstruction of justice (§ 3C1.1) overlaps to a degree with the offense conduct in this case. Moreover, it is unclear to what extent the [defendant’s obstructive conduct actually prejudiced the government at trial.]

When ABJ gagged Stone in response to him posting the picture, she talked about the possibility that Stone’s post might incite his extremist followers to take action.

What concerns me is the fact that he chose to use his public platform, and chose to express himself in a manner that can incite others who may feel less constrained. The approach he chose posed a very real risk that others with extreme views and violent inclinations would be inflamed.

[snip]

The defendant himself told me he had more than one to choose from. And so what he chose, particularly when paired with the sorts of incendiary comments included in the text, the comments that not only can lead to disrespect for the judiciary, but threats on the judiciary, the post had a more sinister message. As a man who, according to his own account, has made communication his forté, his raison d’être, his life’s work, Roger Stone fully understands the power of words and the power of symbols. And there’s nothing ambiguous about crosshairs.

She repeated that sentiment when she overruled the Barr-authorized memo, judging the enhancement was appropriate.

Here, the defendant willfully engaged in behavior that a rational person would find to be inherently obstructive. It’s important to note that he didn’t just fire off a few intemperate emails. He used the tools of social media to achieve the broadest dissemination possible. It wasn’t accidental. He had a staff that helped him do it.

As the defendant emphasized in emails introduced into evidence in this case, using the new social media is his “sweet spot.” It’s his area of expertise. And even the letters submitted on his behalf by his friends emphasized that incendiary activity is precisely what he is specifically known for. He knew exactly what he was doing. And by choosing Instagram and Twitter as his platforms, he understood that he was multiplying the number of people who would hear his message.

By deliberately stoking public opinion against prosecution and the Court in this matter, he willfully increased the risk that someone else, with even poorer judgment than he has, would act on his behalf. This is intolerable to the administration of justice, and the Court cannot sit idly by, shrug its shoulder and say: Oh, that’s just Roger being Roger, or it wouldn’t have grounds to act the next time someone tries it.

Effectively, ABJ was warning against precisely what happened yesterday: that Stone (and Trump) would rile up extremists and those extremists would, predictably, take violent actions. ABJ judged that you can’t let the incitement go unpunished.

Barr, on the other hand, suggested that unless there was proof the incitement had an effect, it was just a technicality.

Bill Barr had a chance to stand against the incitement-driven terrorism led by the Proud Boys last year. And he chose to use his authority, instead, to protect Trump.