Posts

DOJ Claims Ryan Samsel Wants to Move Back to Where He Was Brutally Assaulted

In a filing submitted Thursday, the government disclosed something remarkable. January 6 defendant Ryan Samsel, who was brutally assaulted in the DC jail — allegedly by guards — said in September he wanted to be moved back to the DC jail.

On or around September 28, defense counsel sent a request to USMS that Samsel be transferred back to the D.C. Jail instead of Northern Neck, indicating that he wanted to go back there and was comfortable doing so.

The disclosure comes in response to a series of filings alleging additional mistreatment from Samsel’s latest attorneys, Stanley Woodward, who is a legit defense attorney, and Julia Haller, one of the attorneys sanctioned for making bogus claims of vote fraud in Michigan.

Samsel’s various claims of abuse

In Samsel’s first filing, submitted on September 11, his attorneys claimed that he was still not receiving all the required care for injuries suffered in the March 21 assault in DC jail or pre-existing conditions exacerbated by the assault.

A status report submitted on September 20 in response to an order from Judge Tim Kelly claimed that on September 15, as Samsel was being moved from a common area back to his cell, he was “dropped,” causing redness on his cheek.

Late that evening, officers came to Mr. Samsel’s cell to move him back to solitary confinement. According to records provided by the U.S. Marshals Service (“USMS”), Mr. Samsel reported that he was “dropped while being removed” from his cell. The medical records further provide that after receiving medical attention in solitary confinement, Mr. Samsel had “mild redness on the left side of his face at the cheek bone area.”

Samsel’s filing also suggests that the records from the March 21 assault in the DC jail might be incomplete.

A government status report submitted the same day noted that, “a review of the medical records are not entirely consistent with that Status Report or the Defendant’s assertions” (and provided several examples). It further noted that Samsel was seeking, “materials that are plainly not medical records, such as ‘incident reports’, administrative records, photographs, and video recording from inside the facility (none of which are compiled or authored by medical personnel).” It then noted that abuse in jail, “is appropriately brought in a civil proceeding and not through the criminal process.” (Note, that is legally true but factually, usually useless, but it gives prosecutors a way to move questions about conditions of confinement out of a criminal docket to one under a different judge.)

But Samsel’s attorneys didn’t file a civil suit. Instead, they kept filing motions.

Another filing, submitted on October 4, ostensibly an update on the status of medical reports which did indeed claim that defense attorneys haven’t received all Samsel’s medical records yet, also described that after the prior incident, Samsel was held in solitary confinement to coerce him to admit he did not get a concussion after allegedly being dropped.

Following his return to the Central Virginia Regional Jail from Novant Health UVA, Mr. Samsel was placed in solitary confinement without any recreational time, where the lights in his cell remained on for twenty-four (24) hours a day, and where he remained under constant video surveillance. According to Mr. Samsel, his solitary confinement was to continue until he recanted his statement that he suffered a concussion.

[snip]

Mr. Samsel remained in solitary confinement until September 29, 2021, when he was transferred to the Northern Neck Regional Jail in Warsaw, Virginia. His transfer occurred following a visit by the State police, and numerous requests for updates on Mr. Samsel’s status (e.g., why he remained in solitary confinement) as well as follow up requests for Mr. Samsel’s medical records.

A third filing, submitted on October 14, again ostensibly an update on whether defense attorneys had received Samsel’s medical records, started with this conspiracy theory about Alan Feuer’s story describing that, in early interviews with the FBI, Samsel described that Joe Biggs pushed him to initiate the riot by, “flash[ing] a gun, question[ing Samsel’s] manhood and repeat[ing] his demand [that Samsel] move upfront and challenge the police.”

On Thursday, October 7, 2021, The New York Times published an article describing how Mr. Samsel has refused to cooperate with the government following his initial questioning upon arrest by the FBI more than eight (8) months ago (and without the presence counsel). See Alan Feuer, Dispute Over Claim that Proud Boys Leader Urged Attack at Capitol, The New York Times (Oct. 7, 2021). 1 Despite “[t]he government hav[ing] not yet secured Mr. Samsel’s cooperation in its investigation,” however, the article’s publication prompted the government to request Mr. Samsel be placed in protective custody, or solitary confinement.

The timing of the article’s publication, just three (3) days after Mr. Samsel last complained of his failure to receive necessary medical treatment and/or related medical records is itself noteworthy. That what happened next is purely coincidental, strains credulity.

[snip]

[O]n Tuesday, October 12, 2021, Mr. Samsel was permitted an unrecorded video conference with counsel, in which he was clearly handcuffed. What counsel discussed is, of course, subject to the attorney-client privilege. However, immediately following that video conference, Mr. Samsel was involved in an altercation with correctional officers which ultimately resulted in his again having to be transported to urgent care.

The NNRJ incident report provided by the U.S. Marshal’s Service provides: The above named inmate was finished with his attorney visit. I then advised him, I was going to place the hand cuffs back behind his back. Upon removing one side of the hand cuffs, he then stated he was not going to put the cuffs behind his back. I then gave him three direct orders to turn around, for the cuffs to be placed back on. All direct orders were refused. He then tried to pull the hand cuffs away. The necessary force was used to gain compliance. He then refused to stand up and walk back to E pod. The necessary force was used to gain compliance and escort him back to E124. Upon reaching his cell he became combative and the necessary force was used to gain compliance. The cell door was shut and the hand cuffs were removed. He was seen by EMT F [emphasis Samel’s]

That’s the background to the government’s filing, in which they reveal (among other things) that after experiencing incidents at almost every jail he has entered, Samsel has decided he wants to be in the DC jail, the jail where he was unquestionably beaten by someone (allegedly the guards), but also the jail that Royce Lamberth has just held in contempt for not adequately attending to the medical care of someone — Christopher Worrell — suffering from a non-Hodgkins lymphoma outbreak and pain from breaking his hand in a fall. Samsel’s request to return to DC jail preceded Lamberth’s contempt finding, but not Worrell’s allegations — first raised by the attorney Worrell then shared with Ryan Samsel, John Pierce — of delayed care.

The government’s slew of new details

The entire government memo is worth reading. It provides new details of Samsel’s role in January 6, including texts where he bragged about leading the entire mob forward when he kicked off the riot.

It reviews Samsel’s long history of beating others, especially women.

It describes how — at a moment when (the NYT suggests) Samsel might otherwise be sharing details with the FBI that would connect his own actions leading the mob forward to directions from Joe Biggs — the assault in the DC jail set off six months of volatility in Samsel’s representation that had the effect of delaying his medical care and seemingly changing his own defense strategy.

Following his arrest, Samsel was transported to the DC jail on February 17, 2021. He retained attorney Elisabeth Pasqualini to represent him.

[snip]

During the week of Samsel’s transfer [to Rappahannock jail], a second attorney reached out to the Government, indicating that Samsel had fired Ms. Pasqualini and that they now represented Samsel. This attorney, David Metcalf, was sponsored by local counsel Robert Jenkins. Jenkins filed a motion to replace Ms. Pasqualini on March 31. (R. 12). In the meantime, Ms. Pasqualini informed the Government that she believed she still represented Samsel and had not heard otherwise from him. On April 1 and April 2, a U.S. Magistrate Judge held status hearings to determine the status of Samsel’s representations. Samsel indicated that he wanted both Ms. Pasqualini and Mr. Metcalf to represent him.

A few weeks later, the attorneys informed the Government that Samsel likely only wished to continue with Ms. Pasqualini. After an additional two weeks and two additional status conferences (May 14 and May 18), Samsel confirmed that he wanted to proceed only with Ms. Pasqualini. Mr. Metcalf withdrew on May 18. (R. 22)

[snip]

Subsequent to the Court’s Order, on June 14, attorney John Pierce sent an email to the Court and stated in that email and subsequent to it that Samsel had not authorized Ms. Pasqualini to file the motion requesting a transfer [to custody of the State of Pennsylvania], that Samsel did not want a transfer, and that he wanted the Order vacated and for Samsel to remain in federal custody. The Court forwarded the correspondence and held an assessment of counsel hearing on June 21 and June 25 to determine whether Samsel truly wanted to switch attorneys again (R. 29); see also (Tr. June 24 at 4-5).

At the June 25, 2021 hearing, Ms. Pasqualini withdrew from the case.

[snip]

In August, Samsel requested new counsel, and, on August 16, John Pierce withdrew from the case, and Stanley Woodward and Juli Haller entered appearances.

The filing describes that claims Samsel had made about having doctors in Pennsylvania didn’t match what the Marshal’s Service was able to learn.

Samsel indicated that he had specific doctors in Pennsylvania (a Dr. Liebman and a doctor at Penn) that he had been seeing for a glossectomy and his thoracic condition. (July 1 Tr. at 4). He requested a transfer to FDC in Philadelphia.

[snip]

They made contact with office staff at Dr. Liebman’s office. Mr. Samsel was being seen by Dr. Liebman, a plastic surgeon, for concerns unrelated to thoracic outlet syndrome. There is no specialty care needed that is urgent nor specific to this particular providers abilities.

Conversation with Penn Medicine indicated there was no record of the prisoner being seen by vascular surgery. There is record of primary care visits only. Unless more specific provider information is available, it is not possible to receive direct feedback regarding transfer of care. [emphasis original]

On top of that medical discrepancy, the government filing predictably described that the jails where, Samsel alleges, he was mistreated, offered different versions of each incident than Samsel.

Samsel’s account consistently differs from the account of the facilities where he is housed;

[snip]

Again, Samsel and the facility gave differing accounts of why he was transported and what the diagnosis was.

[snip]

The facility did not have the same account of what occurred. However, both accounts consistently reported that Samsel sustained some kind of injury.

Sadly, jails aren’t necessarily any more credible than recently-sanctioned fraud lawyers. But that’s why it’s particularly interesting that the description of the September 15 “dropping” incident offered by legit defense attorney Woodward differs from the description offered by the recently-sanctioned Haller (though the government doesn’t say how those accounts differ).

One day later, the Government and USMS received emails from both defense counsel in which both suggested Samsel had been assaulted by staff at CVRJ, although with differing versions of the event. The Government immediately followed up with USMS, who followed up with the facility. The facility’s account of what occurred differed from either of the two accounts provided by defense counsel, and the facility denied that any assault took place. The consistent theme between all accounts, however, appeared to be that there were injuries9 and that the injuries were sustained while Samsel was being transferred from one cell to another. Similarly, the facility and defense attorneys differed on their account of the types of injuries sustained and the extent of them.

9 The facility report noted “mild redness on the left side of [Samsel’s] face and cheek bone area.” [my emphasis]

All these discrepancies are why it’s useful that, in addition to the known FBI investigation of the March 21 assault (which prosecutors remain walled off from), and whatever followed from the Virginia State Police visit described by Samsel’s attorneys following the “dropping” incident, the FBI is also investigating the October 12 incident.

That [March 21] incident was referred for investigation to the FBI (and it remains under investigation),4

4 The prosecutors in this case have been purposefully walled off in large part from that investigation.

[snip]

1 The Government has referred the latter of these incidents for investigation after confirming with defense counsel that Samsel is alleging an assault occurred at Northern Neck.

The Government has referred this incident to the FBI for investigation.

The government filing also submitted a sealed addendum addressing the allegations in the NYT story.

On the second issue relating to the article, there is absolutely no basis in fact for these speculations. It makes no difference to the Government whether Samsel wishes to meet or not and his violent actions at the Capitol and his prior history of assaultive and obstructive behavior speaks for itself. The other speculations are discussed and responded to in the attached sealed addendum. See Govt. Ex. 1, Addendum, Filed Under Seal.

This may have the unintended effect of alerting Judge Kelly, who is presiding over the Joe Biggs case, of details regarding allegations Samsel made to the FBI about Biggs.

Again, when it involves jails, especially with defendants accused of injuring cops, you sadly can’t rule out that the jails are at fault. But in its filing, the government lays out all their efforts, during the entire period Samsel kept delaying care by replacing his attorneys and (in one case) refusing treatment for seizures, to find some way to keep him safe in jail.

Judge Kelly has scheduled a hearing to sort through all this — with the attendance of a representative from the Marshals and Samsel’s current jail (wherever that is) — for Thursday, almost two weeks before the hearing he otherwise had scheduled.

About the only thing that seems clear, right now, is that Samsel should not be returned to the DC Jail.

Royce Lamberth Refers DC Jail to DOJ for Civil Rights Investigation

Judge Royce Lamberth, a 78-year old Reagan appointee with a libertarian streak, just held the Warden and the Director for the DC Jail in civil contempt for not providing the medical records of Christopher Worrell in timely fashion as he ordered. He further found that DC Jail had abridged the civil rights of Worrell and referred the jail to Merrick Garland for investigation for general civil rights violations.

Worrell’s medical issues — both pre-existing non-Hodgkins lymphoma and a hand he broke while in jail — have been pending for some time. For a time (back when John Pierce was his lawyer), Worrell was himself delaying treatment by refusing to go to medical appointments. The government had been regularly submitting Worrell’s medical records to the docket. Last week, Judge Lamberth ordered the jail to include the doctor’s notes from a hand specialist who reviewed Worrell’s hand injury ASAP.

According to their claims today, they recognized these notes weren’t in the electronic file on Tuesday morning, and scanned them in before Lamberth ordered a show cause hearing (they did not, however, offer to share metadata proving that point). Lamberth didn’t buy that — and was already steaming about DC Jail’s decision to limit how many video conference rooms are available (which has made it almost impossible to schedule last minute hearings).

In judging that DOC had violated Worrell’s civil rights, Lamberth raised the possibility that he was treated this way because he’s a Jan 6 defendant. I’m not sure there’s any evidence to support that.

It’s still too early to understand what will happen as a result of this, both to Worrell’s case, and to the January 6 investigation generally. There’s not much evidence that this treatment is because these guys are Jan 6 defendants. But neither is there any evidence that the jail has done what it has needed to do to respond to the increased demands created by the January 6 investigation.

Hopefully, at the very least, this will serve as a wakeup call that the DC Jail needs to do better.

How Jacob Chansley Proved Patrick LeDuc Right

I have written repeatedly about how charging January 6 rioters with obstruction provides DOJ a really elegant way of holding people accountable, while providing the flexibility to distinguish between different levels of seriousness (until such time as some judge overturns this application of 18 USC 1512).

A review of what has happened with five men who’ve pled guilty to obstruction so far illustrates not only the range of sentences possible from the same charge, but also the factors DOJ is using to distinguish defendants based on their actions on January 6.

Before I lay out what has happened, first a word of explanation: To get to sentences, the two sides in a plea deal first agree on a  “Estimated Offense Level,” then (if someone pleads guilty), knocks a few points (usually 3) off for pleading. That gives a number that gets plugged into the Sentencing Table to figure out the guidelines sentence, in months, based on whether someone has a criminal record.

So in what follows, I’m showing the initial calculation (before the 3 points taken off for pleading guilty), and then showing what the plea agreement says the guidelines will be. In the table, I’ve marked the four different guidelines calculated in the five cases I discuss here (Scott Fairlamb has some criminal background so may get bumped up a level, but the others have no criminal background).

Paul Hodgkins, who traveled alone to bring his Trump flag to the floor of the Senate, pled guilty to obstruction, and went into sentencing facing a 15 to 21-month sentence (and ultimately got an 8-month sentence).

The number you’ll see Patrick LeDuc mention — 14 — in an email below is obtained by knocking 3 points off 17. And the 15-21 months is taken by checking the “0” criminal record column for an offense level of 14.

Scott Fairlamb. who didn’t plan for insurrection but while there punched a cop, pled guilty to obstruction and assault and goes into sentencing facing 41 to 51 months. DOJ has reserved the right to invoke a terrorist enhancement (including in his plea colloquy) that, if Judge Lamberth agreed, could result in a far stiffer sentence, up to 10 years.

Josiah Colt, who planned his trip to DC with two others, came to DC armed, and rappelled onto the Senate floor, pled guilty to obstruction, but faces (before getting credit for cooperation) 51 to 63 months.

Graydon Young, who planned in advance with a militia, entered the Capitol as part of a Stack, and tried to destroy evidence, pled guilty to obstruction, but faces (before getting credit for cooperation) 63 to 78 months. The difference in guideline between him and Colt is not that Colt’s “militia” was disorganized (a couple of guys he met online), but rather that Young tried to destroy evidence. Otherwise, they’re the same.

These four men all pled guilty to the same crime, obstruction of the vote count, but all faced and are facing dramatically different sentences based on the context of what they had done. And for those who deliberately used violence in pursuit of obstruction could face longer sentences, up to 20 years, which happens to be the same sentence that some sedition-related charges carry, but (again, unless judges overturn this application of obstruction) would be far easier to prove to a jury.

Somewhere around 200 January 6 defendants have been charged with obstruction, but among those 200, there’s a great range of actions they took in their alleged effort to prevent the peaceful transfer of power, including:

  • How obstructive their actions were (a 3 point enhancement)
  • Whether they used violence or threats thereof (an 8 point enhancement)
  • Whether they planned in advance to obstruct the vote count (a 2 point enhancement)
  • Whether they engaged in further obstruction (a further 2 point enhancement)
  • Whether someone did or abetted more than $1,000 in damage to the Capitol (which will likely get a terrorism enhancement)

And this is an issue that will play out in Paul Hodgkins’ effort to appeal his sentence.

According to claims made in court, Hodgkins decided to admit his guilt early on, which led to him being the first person to plead guilty to that obstruction charge. His lawyer at the time was a guy named Patrick LeDuc, a JAG Reserve Officer who learned after he started representing Hodgkins he had to deploy to the Middle East. Immediately after he was sentenced to a below guidelines sentence, per representations a new lawyer has now made, he asked if he could appeal (Friday, Judge Randolph Moss granted his request to extend his time to appeal). What LeDuc said in response will likely be the matter of a legal fight. We do know that on August 21, LeDuc told Hodgkins, “You have no right to appeal the sentenced [sic] pursuant to our plea agreement,” which suggests that at that point, LeDuc understood Hodgkins’ complaint to be with the sentence, not the competence of his representation.

But we know, for sure, that LeDuc told Carolyn Stewart, Hodgkins’ new lawyer, that other January 6 defendants who made it to the Senate floor were going to be charged with more enhancements to the base obstruction charge than Hodgkins.

Here is what you should know. Capitol Hill Defendants found in the Senate are all being offered a felony (same as Paul)(some more than one felony) with an 8 level enhancement (you might consider obtaining a Federal Sentencing manual for your reference). I was able to get the DOJ to agree to only a 3 level enhancement. You ought to know that my plea deal was adopted at the highest level to include the AG of the United States. That meant that my client was at level 14 instead vice level 19. Other Capitol Hill defendant [sic] are looking at 46 months low end. The AG instructed AUSA Sedky to argue for mid range – 18 months. And you would suggest that is evidenced [sic] of malpractice. I would argue that an attorney of 6 months accusing an attorney with over 250 jury trials at both the State and Federal level, and with 30 years of experience is unprofessional on your part.

If you think the plea deal was insufficient, then you ought to know that the United States makes offers with a a [sic] take it or leave it attitude. Everything in the plea deal was boilerplate with one exception that did not bother me. That was a provision that required me to agree that level 14 was good to go and that I would not object to the PSR. I was allowed to argue for a variance under 3553, which was my strategy all along, and the judge did indeed vary 3 levels into ZONE B. Ms. Sedky is a very experienced prosecutor, and the plea deal was arranged over many lengthy phone calls over a period of 3 months. Being the first felony case to be resolved was something that DOJ had to concur in because my case was going to set the precedent for every one to follow and the stakes were high for both sides.

My strategy paid off to Paul’s benefit. No other Federal defendant who is pleading to a felony will get a sentence better than Paul (nearly 250 others)  We had a very good judge who understood the issues, and the sentence was a fair reflection of the fats.

LeDuc is obviously furious at being called incompetent (and writing from Qatar where he is also juggling a huge influx of refugees from Afghanistan). But in this passage he describes a lot of the background to the plea deals that was evident to those  of us following closely, but for which there had been only off the record confirmation.

I think things may intervene that change DOJ’s plans (particularly if any of the challenges to 1512 are successful). But LeDuc describes that the plan when he was involved was to give Hodgkins a good deal and then use that as the precedent for everyone else. With other judges an 8-month sentence may not actually be the floor, but it is the base level treatment DOJ thinks it will adopt for those charged with felonies.

We’ve seen a few people plead down from felonies to 18 USC 1752, but thus far those people are looking at close to the same sentence as Hodgkins, 6 months, a difference of 2 months and the onerous felony conviction.

One thing LeDuc did say is that other defendants who made it to the Senate floor will face 8 level enhancements. Again, I’m virtually certain there will be others who made it to the Senate that will avoid this treatment.

But yesterday, with Jacob Chansley’s sentence, LeDuc was proven correct: another defendant, with whom Hodgkins stormed the Senate floor, got an 8 point enhancement for doing so.

.

Note that, as with Fairlamb, the government reserved the right to ask for a terrorist enhancement, though I did not hear AUSA Kimberly Paschall make a record of that in yesterday’s plea hearing, as AUSA Leslie Goemaat did in Fairlamb’s plea hearing.

To be sure, Chansley’s Statement of Offense includes multiple things that weren’t present with Hodgkins (nor will they be present for some others who made it to the Senate floor). According to his sworn Statement of Offense, Chansley defied orders from Officer KR four different times, and made public and written comments while in the Senate that might be deemed a threat, including to Mike Pence personally.

11. At approximately 2:16 p.m., the defendant and other rioters ascended the stairs to the second floor to the Senate side of the U.S. Capitol building. In a clearing on the second floor, the defendant and other rioters were met by a line of U.S. Capitol Police officers, instructing them to peacefully leave the building. The defendant challenged U.S. Capitol Police Officer K.R. to let them pass, ultimately using his bullhorn to rile up the crowd and demand that lawmakers be brought out.

12. Instead of obeying the instructions of the U.S. Capitol Police to leave the building, the defendant traversed another staircase to the third floor of the Senate side of the U.S. Capitol building. At approximately 2:52 p.m., the defendant entered the Gallery of the Senate alone. The defendant then proceeded to scream obscenities in the Gallery, while other rioters flooded the Chamber below.

13. The defendant then left the Gallery and proceeded down a staircase in an attempt to gain entry to the Senate floor. There, the defendant once again encountered Officer K.R., who once again asked him to leave the building. The defendant insisted that others were already on the Senate floor and he was going to join them. Officer K.R. then followed the defendant on to the Senate floor.

14. The defendant then scaled the Senate dais, taking the seat that Vice President Mike Pence had occupied less than an hour before. The defendant proceeded to take pictures of himself on the dais and refused to vacate the seat when Officer K.R., the lone law enforcement officer in the Chamber at the time, asked him to do so. Instead, the defendant stated that “Mike Pence is a fucking traitor” and wrote a note on available paper on the dais, stating “It’s Only A Matter of Time. Justice Is Coming!”

15. After Officer K.R. again asked the defendant to vacate the seat, the defendant remained, calling other rioters up to the dais and leading them in an incantation over his bullhorn, which included giving thanks for the opportunity “to allow us to send a message to all the tyrants, the communists, and the globalists, that this is our nation, not theirs, that we will not allow America, the American way of the United States of America to go down.” The defendant went on to say “[t]hank you for allowing the United States to be reborn. Thank you for allowing us to get rid of the communists, the globalists, and the traitors within our government.”

16. Finally, at approximately 3:09 p.m., other law enforcement officers arrived to support Officer K.R., and cleared the defendant and other rioters from the Chamber. [my emphasis]

While it’s a puzzle to compare who posed more of a threat, Scott Fairlamb or Jacob Chansley, DOJ is treating both as people who deliberately tried to prevent the vote count by using violence or threats thereof. And because of that, DOJ has gotten their attorneys to agree, they should face a sentence more than twice as long as Hodgkins faced.

And that’s precisely what Patrick LeDuc told Hodgkins’ new lawyer would happen.

Update: I’ve corrected that these are the only five men who’ve pled guilty to obstruction. Some other Oath Keepers also did.

Don’t Ignore What Trevor McFadden Has to Say about January 6

Tierney Sneed had a good article yesterday summarizing how starkly some of the judges presiding over January 6 cases have described it. For example, Sneed quoted liberally from the comments Randolph Moss made in sentencing Paul Hodgkins, comments that the government and other judges are quoting frequently.

“It means that it will be harder today than it was seven months ago for the United States and our diplomats to convince other nations to pursue democracy,” Judge Randolph Moss said at a July 19 sentencing hearing. “It means that it will be harder for all of us to convince our children and our grandchildren that democracy stands as the immutable foundation of this nation. It means that we are now all fearful about the next attack in a way that we never were.”

[snip]

Moss, a nominee of President Barack Obama, said that the attack “threatened not only the security of the Capitol, but democracy itself,” as he sentenced Paul Hodgkins, a rioter who pleaded guilty to obstructing an official proceeding.

“Our elected representatives from both political parties came together that day to perform their constitutional and statutory duty to declare, in the word of the statute, the person elected president,” Moss said at the July 19 hearing. “The mob’s objective was to stop that from happening. They were prepared to break the law to prevent Congress from performing its constitutional and statutory duty. That is chilling for many reasons.”

She includes judges appointed by Democrats (in addition to Moss, Amy Berman Jackson and Beryl Howell) and Republicans (Reggie Walton and Royce Lamberth).

As someone who thinks January 6 was exceptionally dangerous, it’s comforting to hear some judges agree. But I think that, to make a case about how judges are interpreting January 6, you would need to include the statements of a judge like Trevor McFadden, as well.

Of the District Judges carrying the heavy January 6 case load, four — Carl Nichols, Dabney Friedrich, Tim Kelly, and McFadden — are Trump appointees. Unlike some of Trump’s DC Circuit appointees, they’re all serious judges, with time as prosecutors or in other DOJ roles. Trump appointees aren’t necessarily going to be more favorable for January 6 defendants. While Nichols may have burnished his right wing bonafides clerking for Clarence Thomas, for example, that means he spent a lot of time with a Justice who is generally awful for non-corporate defendants’ rights. Former public defender and Obama appointee Tanya Chutkan has already made decisions (on bail) that are more favorable to defendants than the Trump appointees, for example, and I expect that to continue (the judge presiding over the Oath Keeper conspiracy case, Amit Mehta, has also served as a public defender).

Still, as recent Republican appointees, the Trump judges are an important read and voice on this investigation. Both by disposition and record on the court, Friedrich is probably the Trumpiest judge, but thus far the most interesting case she has been assigned is that of Guy Reffitt, the III Percenter who threatened his kids if they revealed his role in the riot; in that case, she approved an order allowing prosecutors to use his face to open a laptop with pictures from the insurrection. Nichols has a bunch of cases, such as the Pollocks or former Green Beret Jeffrey McKellop, that may get interesting down the road, but thus far his most active cases have involved presiding over the plea deals of a group of people arrested on trespass charges on the day of the attack. Tim Kelly is presiding over the bulk of the Proud Boy cases, which by itself gives him a pretty full docket (but is also why DOJ really fucked up by treating Ethan Nordean’s invocation of the Kavanaugh protests so blithely); his decisions thus far have been totally fair. The decisions of Trevor McFadden, who is presiding over the omnibus Tunnel assault case, have also been fair.

I think McFadden’s statements should be included in any read of what these judges think of January 6 because he has pulled a number of the ones that, because the defendants’ political speech has been implicated in the cases against them, will provide an early read about how a Republican with solid political ties will view the balancing of political speech and threat posed by January 6.

In addition to the Hunter and Kevin Seefried prosecution (the latter of whom was pictured carrying a Confederate flag through the Capitol), McFadden is presiding over the prosecutions of American Firster Christian Secor, Cowboys for Trump founder Couy Griffin, and Neo-Nazi Timothy Hale-Cusanelli.

In these cases, McFadden has expressed a fair amount of nuance in his views as he has presided over some genuinely difficult decisions.

He did take the way Hale-Cusanelli expressed his bigotry into account when he decided to hold him without bail (which was genuinely one of the most difficult detention decisions, in my opinion, and I was leaning towards release before McFadden made the decision), but in significant part because he may have acted on those views in the past and because his promises of action were alarming and intimidating his colleagues.

Having said all of that, we don’t typically penalize people for what they say or think. I think for purposes of my analysis, I need to — I’m trying to figure out whether this well-documented history of violent and racist language does suggest that the defendant poses a danger to the community.

[snip]

I also note the government’s evidence that the defendant appears to have surrounded himself, to a certain extent anyway, with people who have encouraged this behavior and people who may even agree with him. And I agree with the government’s concern regarding potential escalation of violence at this point given all that has occurred. And I am concerned for the safety of the confidential human source. I think given all of the facts here in the government’s motion, I mention it is pretty obvious to the defendant anyway who this person is. And I am concerned given all of the defendant[‘]s — all of the things he said in the past about committing violence against those who he feels are pitted against him. And given the sum evidence that the defendant has been willing to put these thoughts into action in the past, I think I do have a duty to protect that confidential source.

McFadden did, however, release someone with similarly repugnant views, Secor, even though Secor had been arming himself, in part because Secor had third party custodians — his parents — willing to vouch for him and put up a $200,000 bond. McFadden seems to be seeking to separate out hateful speech from where that speech turns violent and, if nothing else, that struggle deserves close attention.

But he’s also not viewing DOJ’s response to January 6 as driven predominantly by First Amendment issues. In a decision rejecting Griffin’s attempt to throw out one of the trespassing charges DOJ has used — which Griffin, because he did not enter the Capitol, was uniquely situated to challenge — McFadden dismissed Griffin’s claims of political discrimination.

The Government moved to detain Griffin before trial. It described Griffin’s political views as “inflammatory, racist, and at least borderline threatening advocacy.” Gov’t’s Mem. in Supp. of Pretrial Detention at 2, ECF No. 3. The Government also highlighted the gun rights advocacy of Cowboys for Trump, as well as allegedly violent statements made by Griffin.

[snip]

Finally, Griffin complains of discriminatory prosecution. He contends that he was targeted and “selectively charged . . . because the government loathed him and his politics.” Def.’s Reply at 3. “Few subjects are less adapted to judicial review than the exercise by the Executive of his discretion in deciding when and whether to institute criminal proceedings, or what precise charge shall be made, or whether to dismiss a proceeding once brought.” United States v. Fokker Servs. B.V., 818 F.3d 733, 741 (D.C. Cir. 2016) (cleaned up). So “the presumption of regularity” applies to “prosecutorial decisions and, in the absence of clear evidence to the contrary, courts presume that prosecutors have properly discharged their official duties.” Id.

Griffin comes up short on providing the “clear evidence” required for this Court to surmount the presumption of regularity—and the separation of powers. He points to “hundreds or perhaps thousands of other individuals ‘remaining’ in the same area” as him on January 6 who have not faced charges under 18 U.S.C. § 1752. Def.’s Mot. at 24. The Court hesitates to credit these unsupported numbers, especially as the Government continues to charge new individuals with offenses related to January 6. Nor is the Court concerned by the Government’s statements about Griffin when seeking to detain him pretrial; detention hearings require the Court to consider the defendant’s history and personal characteristics, as well as his potential dangerousness.

Griffin highlights the Government’s dismissal of charges under 18 U.S.C. § 1752 in “the interests of justice” in United States v. Christopher Kelly, 21-mj-128 (D.D.C. 2021). According to news reports, the Government moved to drop the charges after determining Kelly did not enter the Capitol building. See Feds move to drop charges for Capitol riot defendant, Politico, June 1, 2021, https://www.politico.com/news/2021/06/01/feds-capitol-riot-defendant-491514 (“‘Since he was not inside, in the interest of consistency in the investigation, the charges were dropped,’ the official said.”). Even so, the Government could rationally forgo federal prosecution as to most trespassers while deciding that Griffin’s leadership role in the crowd, position as an elected official, and more blatant conduct at the scene merited him different treatment. Not all differences amount to discrimination. In any event, presumably Kelly and the other uncharged protestors surrounding Griffin on the Capitol steps share his “politics,” Def.’s Reply at 3, complicating his complaint of bias here.

Griffin also points to the numerous uncharged protestors who broke through USCP barricades to occupy the Capitol steps on the eve of Justice Kavanaugh’s Senate confirmation vote. See Def.’s Notice at 2, ECF No. 39; see also Kavanaugh Protesters Ignore Capitol Barricades Ahead of Saturday Vote, Roll Call, Oct. 6, 2019, https://www.rollcall.com/2018/10/06/kavanaugh-protesters-ignore-capitol-barricades-ahead-ofsaturday-vote/. Disparate charging decisions in similar circumstances may be relevant at sentencing. Cf. 18 U.S.C. 3553(a)(c) (“the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct”). But this is not a basis to dismiss the charges. [My emphasis]

McFadden based his decision on this point in part on separation of powers (the basis for some of his decisions that have been deemed pro-Trump) and presumption of regularity, as well as basic facts. He deemed reasonable the possibility that prosecutors viewed Griffin’s leadership role to be more important to prosecute. He suggested he might sentence Griffin (if he were found guilty) leniently based on a comparison with similarly situated protestors against Kavanugh. But he also based his decision on the notion that Griffin’s threats of violence (raised in a detention challenge conducted before Michael Sherwin departed) could pose a genuine concern to the government.

McFadden is not treating this investigation as a witch hunt against people with right wing views.

But at the same time, McFadden has deviated from his colleagues’ more alarmist language to refer to January 6. At least twice in hearings (including on this Griffin challenge), McFadden admonished an AUSA who referred to January 6 as an insurrection. Have you charged anyone with insurrection, McFadden rightly asked. In a court room, these are not empty terms. They are also names of crimes. And DOJ needs to be careful not to accuse these defendants of crimes that — for whatever reason — they haven’t charged.

It’s not that McFadden thinks January 6 was not serious. In the same Hale-Cusanelli hearing, he described, “Obviously, the January 6th riot was a serious and sui generis threat to our country’s body politic.” But thus far (he has not presided over any of the six cases that have been sentenced yet), he has adopted a more moderate tone in discussing the event.

It’s true that, for the moment, some District Court Judges will frame how we think of January 6. In Munchel, the DC Circuit, too, described January 6 in grave terms (albeit in a passage of Robert Wilkins’ majority opinion not joined by Greg Katsas).

It cannot be gainsaid that the violent breach of the Capitol on January 6 was a grave danger to our democracy, and that those who participated could rightly be subject to detention to safeguard the community. Cf. Salerno, 481 U.S. at 748 (“[I]n times of war or insurrection, when society’s interest is at its peak, the Government may detain individuals whom the government believes to be dangerous.” (citations omitted)).

But ultimately, the six Republican appointees on the Supreme Court will have their say about what this event was — at least about whether hundreds of people committed felony obstruction in trying to halt the peaceful transfer of power. And with that in mind, commentators and DOJ would do well to watch carefully for the specific aspects of January 6 that Trevor McFadden finds most troublesome.

Scott Fairlamb Pled Guilty to Obstruction and Assault; Does That Amount to Terrorism?

Two January 6 assault defendants pled guilty yesterday, Scott Fairlamb and Devlyn Thompson, the first defendants to plead to assault. Here’s my live tweet of Fairlamb’s sentencing.

There’s a detail of those plea agreements that has not gotten the attention it deserves.

While both plea agreements (Fairlamb, Thompson) include the Estimated Guidelines sentence for the crimes the men pled to, both allow DOJ to request an upward departure for a terrorism enhancement. That means that, while the existing guidelines make it look like these men face around four years in prison, DOJ may come back and argue they should be sentenced to something closer to ten years. I wouldn’t be surprised if DOJ did so with Fairlamb.

Here’s how the sentencing works for Fairlamb, who pled guilty to assault and obstruction.

It starts with the math for both crimes. In both cases, Fairlamb faces an enhancement off base level charges. On the obstruction charge, Fairlamb got penalized for both his physical threats and engaging in substantial interference. On the assault charge, he got an enhancement for punching a cop, an official victim.

From there, Fairlamb gets two-plus-one-points off for pleading guilty.

That results an Estimated Offense Level of 22, based on the assumption the sentences will be served concurrently. Once you factor in Fairlamb’s past assault convictions, his Estimated Guidelines sentence is 41 to 51 months.

But!

There’s a big *but* in the plea deal. The plea deal lays out what each side can argue about next month when Fairlamb will be sentenced.

The parties agree that, solely for the purposes of calculating the applicable range under the Sentencing Guidelines, neither a downward nor upward departure from the Estimated Guidelines Range set forth above is warranted, except the Government reserves the right to request an upward departure pursuant to U.S.S.G. § 3A1.4, n. 4. Except as provided for in the “Reservation of Allocution” section below, the parties also agree that neither party will seek any offense-level calculation different from the Estimated Offense Level calculated above in subsection A. However, the parties are free to argue for a Criminal History Category different from that estimated above in subsection B. [my emphasis]

Neither side will deviate from this math except that both sides can argue that Fairlamb’s past assaults result in a different criminal history category than used to calculate these guidelines. Since the guidelines calculated here are based off the lowest category, this can only work against Fairlamb going forward.

More importantly — as AUSA Leslie Goemaat made a point of noting explicitly for the record in yesterday’s sentencing — the government reserves the right to argue for an upward departure under U.S.S.G. § 3A1.4.

That’s a reference to a terrorism enhancement.

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.

This language allows the judge to bump that Offense Level up 12 points, up to but no further than 32.

Even assuming the government does not argue that Fairlamb’s criminal history category should be higher, that would still bump up his potential Guidelines Sentence — if the government were to choose to exercise this option and if Royce Lamberth were to agree that Fairlamb’s crimes were an attempt to influence the conduct of government by intimidation or coercion — to 121 to 151 months.

In other words, while the headlines are saying that Fairlamb could face a roughly 4-year sentence, if the government argues that his actions had a political motive and Judge Lamberth agrees, then in reality Fairlamb could be facing a 10-year sentence or more. And in Fairlamb’s case, he already pled to a crime, obstruction, that admits to that political purpose.

As part of Fairlamb’s Statement of Offense, he agreed under oath that,

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.

That is, he already admitted his actions were intended to intimidate or coerce the government, the language required to invoke the terrorism enhancement.

Even if this application of the obstruction statute were thrown out (meaning his sentence would start at 17 instead of 22), if Judge Lamberth decided the terrorism enhancement applied, he could still face an 87 to 108 month sentence.

The government will not necessarily invoke this language. The terrorism enhancement language also appeared in Paul Hodgkins’ plea agreement, but AUSA Mona Sedky specifically noted at sentencing that the government was not invoking it in Hodgkins’ case.

The language does not appear in the five known cooperation pleas (Caleb Berry, Josiah Colt, Mark Grods, Jon Schaffer, Graydon Young). Indeed, as I’ve noted, by pleading their way out of the existing Oath Keeper conspiracy, Young and the other Oath Keepers also got out of the depredation of government property charge that is explicitly among those that can carry a terrorism enhancement. There appear to be at least three Proud Boys charged in conspiracies considering pleading, and I imagine they’d be looking at the same deal, a way out of being treated as a terrorist in exchange for their cooperation. For those willing to cooperate against their buddies, it seems, the government is willing to trade away the possibility of calling the person’s actions terrorism.

There has already been at least one case where a defendant’s lawyer described reluctance to accept a plea offer because it included this terrorism enhancement language. I would imagine the inclusion of this language in plea deals is one reason why so few defendants have taken pleas even when faced with abundant video evidence of their own crimes.

I likewise imagine that the government won’t argue for the enhancement in all cases where it appears in a plea (as noted, Sedky specifically declined to invoke it with Hodgkins).

But in Fairlamb’s case, as part of their argument to hold Fairlamb in pretrial detention, the government has argued he was arming and preparing for war. And Fairlamb swore under oath both that he engaged in violence and that he did so with the intent of coercing the government to stop or delay the certification of a democratic election.

Fairlamb will be sentenced on September 27. So we may learn then whether Federal judges — and as I noted, many of the ones presiding over January 6 cases, including Lamberth, also had key roles in the War on Terror — consider January 6 to be terrorism.

Update: Here’s Lamberth’s order upholding the government request for pre-trial detention. It was one of the first he issued after he was sort-of reversed in Munschel, and as such may reflect more chastened language. But he clearly thinks that Fairlamb’s behavior on January 6 fairly exceptional.

Here’s how he described January 6 in the original Munchel decision, though.

The grand jury charged Munchel with grave offenses. In charging Munchel with “forcibly enter[ing] and remain[ing] in the Capitol to stop, delay, and hinder Congress’s certification of the Electoral College vote,” Indictment 1, ECF No. 21, the grand jury alleged that Munchel used force to subvert a democratic election and arrest the peaceful transfer of power. Such conduct threatens the republic itself. See George Washington, Farewell Address (Sept. 19, 1796) (“The very idea of the power and the right of the people to establish government presupposes the duty of every individual to obey the established government. All obstructions to the execution of the laws, all combinations and associations, under whatever plausible character, with the real design to direct, control, counteract, or awe the regular deliberation and action of the constituted authorities, are destructive of this fundamental principle, and of fatal tendency.”). Indeed, few offenses are more threatening to our way of life.

“Stand Back and Stand By:” John Pierce’s Plan for a Public Authority or — More Likely — a MyPillow Defense

In a Friday hearing in the omnibus Oath Keeper conspiracy case, John Pierce — who only just filed an appearance for Kenneth Harrelson in that case — warned that he’s going to mount a very vigorous public authority defense. He claimed that such a defense would require reviewing all video.

Pierce is a Harvard-trained civil litigator involved in the more conspiratorial side of Trumpist politics. Last year he filed a lawsuit for Carter Page that didn’t understand who (Rod Rosenstein, among others) needed to be included to make the suit hold up, much less very basic things about FISA. As someone who’d like to see the unprecedented example of Page amount to something, I find that lawsuit a horrible missed opportunity.

John Pierce got fired by Kyle Rittenhouse

Of late, he has made news for a number of controversial steps purportedly in defense of accused Kenosha killer Kyle Rittenhouse. A recent New Yorker article on Rittenhouse’s case, for example, described that Pierce got the Rittenhouses to agree to a wildly inflated hourly rate and sat on donations in support of Rittenhouse’s bail for a month after those funds had been raised. Then, when Kyle’s mother Wendy tried to get Pierce to turn over money raised for their living expenses, he instead claimed they owed him.

Pierce met with the Rittenhouses on the night of August 27th. Pierce Bainbridge drew up an agreement calling for a retainer of a hundred thousand dollars and an hourly billing rate of twelve hundred and seventy-five dollars—more than twice the average partner billing rate at top U.S. firms. Pierce would be paid through #FightBack, which, soliciting donations through its Web site, called the charges against Rittenhouse “a reactionary rush to appease the divisive, destructive forces currently roiling this country.”

Wisconsin’s ethics laws restrict pretrial publicity, but Pierce began making media appearances on Rittenhouse’s behalf. He called Kenosha a “war zone” and claimed that a “mob” had been “relentlessly hunting him as prey.” He explicitly associated Rittenhouse with the militia movement, tweeting, “The unorganized ‘militia of the United States consists of all able-bodied males at least seventeen years of age,’ ” and “Kyle was a Minuteman protecting his community when the government would not.”

[snip]

In mid-November, Wood reported that Mike Lindell, the C.E.O. of MyPillow, had “committed $50K to Kyle Rittenhouse Defense Fund.” Lindell says that he thought his donation was going toward fighting “election fraud.” The actor Ricky Schroder contributed a hundred and fifty thousand dollars. Pierce finally paid Rittenhouse’s bail, with a check from Pierce Bainbridge, on November 20th—well over a month after #FightBack’s Web site indicated that the foundation had the necessary funds.

[snip]

Wendy said of the Rittenhouses’ decision to break with Pierce, “Kyle was John’s ticket out of debt.” She was pressing Pierce to return forty thousand dollars in donated living expenses that she believed belonged to the family, and told me that Pierce had refused: “He said we owed him millions—he ‘freed Kyle.’ ”

Possibly in response to the New Yorker piece, Pierce has been tweeting what might be veiled threats to breach attorney-client privilege.

Pierce assembles a collection of characters for his screen play

Even as that has been going on, however, Pierce has been convincing one after another January 6 defendant to let him represent them. The following list is organized by the date — in bold — when Pierce first filed an appearance for that defendant (I’ll probably update this list as Pierce adds more defendants):

1. Christopher Worrell: Christopher Worrell is a Proud Boy from Florida arrested on March 12. Worrell traveled to DC for the December MAGA protest, where he engaged in confrontational behavior targeting a journalist. He and his girlfriend traveled to DC for January 6 in vans full of Proud Boys paid for by someone else. He was filmed spraying pepper spray at cops during a key confrontation before the police line broke down and the initial assault surged past. Worrell was originally charged for obstruction and trespassing, but later indicted for assault and civil disorder and trespassing (dropping the obstruction charge). He was deemed a danger, in part, because of a 2009 arrest for impersonating a cop involving “intimidating conduct towards a total stranger in service of taking the law into his own hands.” Pierce first attempted to file a notice of appearance on March 18. Robert Jenkins (along with John Kelly, from Pierce’s firm) is co-counsel on the case. Since Pierce joined the team, he has indulged Worrell’s claims that he should not be punished for assaulting a cop, but neither that indulgence nor a focus on Worrell’s non-Hodgkins lymphoma nor an appeal succeeded at winning his client release from pre-trial detention.

2. William Pepe: William Pepe is a Proud Boy charged in a conspiracy with Dominic Pezzola and Matthew Greene for breaching the initial lines of defense and, ultimately, the first broken window of the Capitol. Pepe was originally arrested on January 11, though is out on bail. Pierce joined Robert Jenkins on William Pepe’s defense team on March 25. By April, Pierce was planning on filing some non-frivolous motions (to sever his case from Pezzola, to move it out of DC, and to dismiss the obstruction count).

3. Paul Rae: Rae is another of Pierce’s Proud Boy defendants and his initial complaint suggested Rae could have been (and could still be) added to the conspiracy indictments against the Proud Boys already charged. He was indicted along with Arthur Jackman for obstruction and trespassing; both tailed Joe Biggs on January 6, entering the building from the East side after the initial breach. Pierce filed to join Robert Jenkins in defending Rae on March 30.

4. Stephanie Baez: On June 9, Pierce filed his appearance for Stephanie Baez. Pierce’s interest in Baez’ case makes a lot of sense. Baez, who was arrested on trespassing charges on June 4, seems to have treated the January 6 insurrection as an opportunity to shop for her own Proud Boy boyfriend. Plus, she’s attractive, unrepentant, and willing to claim there was no violence on January 6. Baez has not yet been formally charged (though that should happen any day).

5. Victoria White: If I were prosecutors, I’d be taking a closer look at White to try to figure out why John Pierce decided to represent her (if it’s not already clear to them; given the timing, it may simply be because he believed he needed a few women defendants to tell the story he wants to tell). White was detained briefly on January 6 then released, and then arrested on April 8 on civil disorder and trespassing charges. At one point on January 6, she was filmed trying to dissuade other rioters from breaking windows, but then she was filmed close to and then in the Tunnel cheering on some of the worst assault. Pierce filed his notice of appearance in White’s case on June 10.

Ryan Samsel: After consulting with Joe Biggs, Ryan Samsel kicked off the riot by approaching the first barriers and — with several other defendants — knocking over a female cop, giving her a concussion. He was arrested on January 30 and is still being held on his original complaint charging him with assault and civil disorder. He’s obviously a key piece to the investigation and for some time it appeared the government might have been trying to persuade him that the way to minimize his significant exposure (he has an extensive criminal record) would be to cooperate against people like Biggs. But then he was brutally assaulted in jail. Detainees have claimed a guard did it, and given that Samsel injured a cop, that wouldn’t be unheard of. But Samsel seemed to say in a recent hearing that the FBI had concluded it was another detainee. In any case, the assault set off a feeding frenzy among trial attorneys seeking to get a piece of what they imagine will be a huge lawsuit against BOP (as it should be if a guard really did assault him). Samsel is now focused on getting medical care for eye and arm injuries arising from the assault. And if a guard did do this, then it would be a key part of any story Pierce wanted to tell. After that feeding frenzy passed, Pierce filed an appearance on June 14, with Magistrate Judge Zia Faruqui releasing his prior counsel on June 25. Samsel is a perfect defendant for Pierce, though (like Rittenhouse), the man badly needs a serious defense attorney. Update: On July 27, Samsel informed Magistrate Judge Zia Faruqui that he would be retaining new counsel.

6. James McGrew: McGrew was arrested on May 28 for assault, civil disorder, obstruction, and trespassing, largely for some fighting with cops inside the Rotunda. His arrest documents show no ties to militias, though his arrest affidavit did reference a 2012 booking photo. Pierce filed his appearance to represent McGrew on June 16.

Alan Hostetter: John Pierce filed as Hostetter’s attorney on June 24, not long after Hostetter was indicted with five other Three Percenters in a conspiracy indictment paralleling those charging the Oath Keepers and Proud Boys. Hostetter was also active in Southern California’s anti-mask activist community, a key network of January 6 participants. Hostetter and his defendants spoke more explicitly about bringing arms to the riot, and his co-defendant Russell Taylor spoke at the January 5 rally. On August 3, Hostetter replaced Pierce.

7, 8, 9. On June 30, Pierce filed to represent David Lesperance, and James and Casey Cusick. As I laid out here, the FBI arrested the Cusicks, a father and son that run a church, largely via information obtained from Lesperance, their parishioner. They are separately charged (Lesperance, James Cusick, Casey Cusick), all with just trespassing. The night before the riot, father and son posed in front of the Trump Hotel with a fourth person besides Lesperance (though Lesperance likely took the photo).

10. Kenneth Harrelson: On July 1, Pierce filed a notice of appearance for Harrelson, who was first arrested on March 10. Leading up to January 6, Harrelson played a key role in Oath Keepers’ organizing in Florida, particularly meetings organized on GoToMeeting. On the day of the riot, Kelly Meggs had put him in charge of coordinating with state teams. Harrelson was on the East steps of the Capitol with Jason Dolan during the riot, as if waiting for the door to open and The Stack to arrive; with whom he entered the Capitol. With Meggs, Harrelson moved first towards the Senate, then towards Nancy Pelosi’s office. When the FBI searched his house upon his arrest, they found an AR-15 and a handgun, as well as a go-bag with a semi-automatic handgun and survivalist books, including Ted Kaczynski’s writings. Harrelson attempted to delete a slew of his Signal texts, including a video he sent Meggs showing the breach of the East door. Harrelson had previously been represented by Nina Ginsberg and Jeffrey Zimmerman, who are making quite sure to get removed from Harrelson’s team before Pierce gets too involved.

11. Leo Brent Bozell IV: It was, perhaps, predictable that Pierce would add Bozell to his stable of defendants. “Zeeker” Bozell is the scion of a right wing movement family including his father who has made a killing by attacking the so-called liberal media, and his grandfather, who was a speech writer for Joseph McCarthy. Because Bozell was released on personal recognizance there are details of his actions on January 6 that remain unexplained. But he made it to the Senate chamber, and while there, made efforts to prevent CSPAN cameras from continuing to record the proceedings. He was originally arrested on obstruction and trespassing charges on February 12; his indictment added an abetting the destruction of government property charge, the likes of which have been used to threaten a terrorism enhancement against militia members. Pierce joined Bozell’s defense team (thus far it seems David B. Deitch will remain on the team) on July 6.

12. Nate DeGrave: The night before DeGrave’s quasi co-conspirator Josiah Colt pled guilty, July 13, Pierce filed a notice of appearance for Nate DeGrave. DeGrave helped ensure both the East Door and the Senate door remained open.

14. Nathaniel Tuck: On July 19, Pierce filed a notice of appearance for Nathaniel Tuck, the Florida former cop Proud Boy.

14. Kevin Tuck: On July 20, Pierce filed a notice of appearance for Kevin Tuck, Nathaniel’s father and still an active duty cop when he was charged.

15. Peter Schwartz: On July 26, Pierce filed a notice of appearance for Peter Schwartz, the felon out on COVID-release who maced some cops.

16. Jeramiah Caplinger: On July 26, Pierce filed a notice of appearance for Jeramiah Caplinger, who drove from Michigan and carried a flag on a tree branch through the Capitol.

Deborah Lee: On August 23, Pierce filed a notice of appearance for Deborah Lee, who was arrested on trespass charges months after her friend Michael Rusyn. On September 2, Lee chose to be represented by public defender Cara Halverson.

17. Shane Jenkins: On August 25, Pierce colleague Ryan Marshall showed up at a status hearing for Jenkins and claimed a notice of appearance for Pierce had been filed the night before. In that same hearing, he revealed that Pierce was in a hospital with COVID, even claiming he was on a ventilator and not responsive. The notice of appearance was filed, using Pierce’s electronic signature, on August 30, just as DOJ started sending out notices that all Pierce cases were on hold awaiting signs of life. Jenkins is a felon accused of bringing a tomahawk to the Capitol and participating in the Lower West Tunnel assaults on cops.

As you can see, Pierce has assembled as cast of defendants as if writing a screenplay, with Proud Boys from key breach points, leading members of the other conspiracies, and other movement conservatives. There are just a few more scenes he would need to fill out to not only be able to write his screenplay, but also to be able to get broad discovery from the government.

This feat is all the more interesting given a detail from the New Yorker article: at one point, Pierce seemed to be claiming to represent Enrique Tarrio and part of his “defense” of Rittenhouse was linking the boy to the Proud Boys.

Six days after the Capitol assault, Rittenhouse and his mother flew with Pierce to Miami for three days. The person who picked them up at the airport was Enrique Tarrio—the Proud Boys leader. Tarrio was Pierce’s purported client, and not long after the shootings in Kenosha he had donated a hundred dollars or so to Rittenhouse’s legal-defense fund. They all went to a Cuban restaurant, for lunch.

Enrique Tarrio would be part of any coordinated Florida-based plan in advance of January 6 and if he wanted to, could well bring down whatever conspiracy there was. More likely, though, he’s attempting to protect any larger conspiracy.

A public authority defense claims the defendant thought they had authority to commit a crime

And with his ties to Tarrio, Pierce claims (to think) he’s going to mount a public authority defense. A public authority defense involves claiming that the defendant had reason to believe he had authority to commit the crimes he did. According to the Justice Manual, there are three possible arguments a defendant might make. The first is that the defendant honestly believed they were authorized to do what they did.

First, the defendant may offer evidence that he/she honestly, albeit mistakenly, believed he/she was performing the crimes charged in the indictment in cooperation with the government. More than an affirmative defense, this is a defense strategy relying on a “mistake of fact” to undermine the government’s proof of criminal intent, the mens rea element of the crime. United States v. Baptista-Rodriguez, 17 F.3d 1354, 1363-68 (11th Cir. 1994); United States v. Anderson, 872 F.2d 1508, 1517-18 & n.4 (11th Cir.), cert. denied, 493 U.S. 1004 (1989); United States v. Juan, 776 F.2d 256, 258 (11th Cir. 1985). The defendant must be allowed to offer evidence that negates his/her criminal intent, id., and, if that evidence is admitted, to a jury instruction on the issue of his/her intent, id., and if that evidence is admitted, he is entitled to a jury instruction on the issue of intent. United States v. Abcasis, 45 F.3d 39, 44 (2d Cir. 1995); United States v. Anderson, 872 F.2d at 1517-1518 & n. In Anderson, the Eleventh Circuit approved the district court’s instruction to the jury that the defendants should be found not guilty if the jury had a reasonable doubt whether the defendants acted in good faith under the sincere belief that their activities were exempt from the law.

There are some defendants among Pierce’s stable for whom this might work. But taken as a whole and individually, most allegedly did things (including obstruction or lying to the FBI) that would seem to evince consciousness of guilt.

The second defense works best (and is invoked most often) for people — such as informants or CIA officers — who are sometimes allowed to commit crimes by the Federal government.

The second type of government authority defense is the affirmative defense of public authority, i.e., that the defendant knowingly committed a criminal act but did so in reasonable reliance upon a grant of authority from a government official to engage in illegal activity. This defense may lie, however, only when the government official in question had actual authority, as opposed to merely apparent authority, to empower the defendant to commit the criminal acts with which he is charged. United States v. Anderson, 872 F.2d at 1513-15; United States v. Rosenthal, 793 F.2d 1214, 1236, modified on other grounds, 801 F.2d 378 (11th Cir. 1986), cert. denied, 480 U.S. 919 (1987). The genesis of the “apparent authority” defense was the decision in United States v. Barker, 546 F. 2d 940 (D.C. Cir. 1976). Barker involved defendants who had been recruited to participate in a national security operation led by Howard Hunt, whom the defendants had known before as a CIA agent but who was then working in the White House. In reversing the defendants’ convictions, the appellate court tried to carve out an exception to the mistake of law rule that would allow exoneration of a defendant who relied on authority that was merely apparent, not real. Due perhaps to the unique intent requirement involved in the charges at issue in the Barker case, the courts have generally not followed its “apparent authority” defense. E.g., United States v. Duggan, 743 F.2d 59, 83-84 (2d Cir. 1984); United States v. Rosenthal, 793 F.2d at 1235-36. If the government official lacked actual or real authority, however, the defendant will be deemed to have made a mistake of law, which generally does not excuse criminal conduct. United States v. Anderson, 872 F.2d at 1515; United States v. Rosenthal, 793 F.2d at 1236; United States v. Duggan, 743 F.2d at 83-84. But see discussion on “entrapment by estoppel,” infra.

Often, spooked up defendants try this as a way to launch a graymail defense, to make such broad requests for classified information to push the government to drop its case. Usually, this effort fails.

I could see someone claiming that Trump really did order the defendants to march on the Capitol and assassinate Mike Pence. Some of the defendants’ co-conspirators (especially Harrelson’s) even suggested they expected Trump to invoke the Insurrection Act. But to make that case would require not extensive review of Capitol video, as Pierce says he wants, but review of Trump’s actions, which would seem to be the opposite of what this crowd might want. Indeed, attempting such a defense might allow prosecutors a way to introduce damning information on Trump that wouldn’t help the defense cause.

The final defense is when a defendant claims that a Federal officer misled them into thinking their crime was sanctioned.

The last of the possible government authority defenses is “entrapment by estoppel,” which is somewhat similar to public authority. In the defense of public authority, it is the defendant whose mistake leads to the commission of the crime; with “entrapment by estoppel,” a government official commits an error and, in reliance thereon, the defendant thereby violates the law. United States v. Burrows, 36 F.3d 875, 882 (9th Cir. 1994); United States v. Hedges, 912 F.2d 1397, 1405 (11th Cir. 1990); United States v. Clegg, 846 F.2d 1221, 1222 (9th Cir. 1988); United States v. Tallmadge, 829 F.2d 767, 773-75 (9th Cir. 1987). Such a defense has been recognized as an exception to the mistake of law rule. In Tallmadge, for example, a Federally licensed gun dealer sold a gun to the defendant after informing him that his circumstances fit into an exception to the prohibition against felons owning firearms. After finding that licensed firearms dealers were Federal agents for gathering and dispensing information on the purchase of firearms, the Court held that a buyer has the right to rely on the representations made by them. Id. at 774. See United States v. Duggan, 743 F.2d at 83 (citations omitted); but, to assert such a defense, the defendant bears the burden of proving that he\she was reasonable in believing that his/her conduct was sanctioned by the government. United States v. Lansing, 424 F.2d 225, 226-27 (9th Cir. 1970). See United States v . Burrows, 36 F.3d at 882 (citing United States v. Lansing, 424 F.2d at 225-27).

This is an extreme form of what defendants have already argued. And in fact, Chief Judge Beryl Howell already addressed this defense in denying Billy Chrestman (a Proud Boy from whose cell Pierce doesn’t yet have a representative) bail. After reviewing the precedents where such a defense had been successful, Howell then explained why it wouldn’t work here. First, because where it has worked, it involved a narrow misstatement of the law that led defendants to unknowingly break the law, whereas here, defendants would have known they were breaking the law because of the efforts from police to prevent their actions. Howell then suggested that a belief that Trump had authorized this behavior would not have been rational. And she concludes by noting that this defense requires that the person leading the defendant to misunderstand the law must have the authority over such law. But Trump doesn’t have the authority, Howell continued, to authorize an assault on the Constitution itself.

Together, this trilogy of cases gives rise to an entrapment by estoppel defense under the Due Process Clause. That defense, however, is far more restricted than the capacious interpretation suggested by defendant, that “[i]f a federal official directs or permits a citizen to perform an act, the federal government cannot punish that act under the Due Process Clause.” Def.’s Mem. at 7. The few courts of appeals decisions to have addressed the reach of this trilogy of cases beyond their facts have distilled the limitations inherent in the facts of Raley, Cox, and PICCO into a fairly restrictive definition of the entrapment by estoppel defense that sets a high bar for defendants seeking to invoke it. Thus, “[t]o win an entrapment-by-estoppel claim, a defendant criminally prosecuted for an offense must prove (1) that a government agent actively misled him about the state of the law defining the offense; (2) that the government agent was responsible for interpreting, administering, or enforcing the law defining the offense; (3) that the defendant actually relied on the agent’s misleading pronouncement in committing the offense; and (4) that the defendant’s reliance was reasonable in light of the identity of the agent, the point of law misrepresented, and the substance of the misrepresentation.” Cox, 906 F.3d at 1191 (internal quotation marks and citations omitted).

The Court need not dally over the particulars of the defense to observe that, as applied generally to charged offenses arising out of the January 6, 2021 assault on the Capitol, an entrapment by estoppel defense is likely to fail. Central to Raley, Cox, and PICCO is the fact that the government actors in question provided relatively narrow misstatements of the law that bore directly on a defendant’s specific conduct. Each case involved either a misunderstanding of the controlling law or an effort by a government actor to answer to complex or ambiguous legal questions defining the scope of prohibited conduct under a given statute. Though the impact of the misrepresentations in these cases was ultimately to “forgive a breach of the criminal laws,” Cox, 379 U.S. at 588 (Clark, J., concurring in part and dissenting in part), none of the statements made by these actors implicated the potential “waiver of law,” or indeed, any intention to encourage the defendants to circumvent the law, that the Cox majority suggested would fall beyond the reach of the entrapment by estoppel defense, id. at 569. Moreover, in all three cases, the government actors’ statements were made in the specific exercise of the powers lawfully entrusted to them, of examining witnesses at Commission hearings, monitoring the location of demonstrations, and issuing technical regulations under a particular statute, respectively.

In contrast, January 6 defendants asserting the entrapment by estoppel defense could not argue that they were at all uncertain as to whether their conduct ran afoul of the criminal law, given the obvious police barricades, police lines, and police orders restricting entry at the Capitol. Rather, they would contend, as defendant does here, that “[t]he former President gave th[e] permission and privilege to the assembled mob on January 6” to violate the law. Def.’s Mem. at 11. The defense would not be premised, as it was in Raley, Cox, and PICCO, on a defendant’s confusion about the state of the law and a government official’s clarifying, if inaccurate, representations. It would instead rely on the premise that a defendant, though aware that his intended conduct was illegal, acted under the belief President Trump had waived the entire corpus of criminal law as it applied to the mob.

Setting aside the question of whether such a belief was reasonable or rational, as the entrapment by estoppel defense requires, Cox unambiguously forecloses the availability of the defense in cases where a government actor’s statements constitute “a waiver of law” beyond his or her lawful authority. 379 U.S. at 569. Defendant argues that former President Trump’s position on January 6 as “[t]he American head of state” clothed his statements to the mob with authority. Def.’s Mem. at 11. No American President holds the power to sanction unlawful actions because this would make a farce of the rule of law. Just as the Supreme Court made clear in Cox that no Chief of Police could sanction “murder[] or robbery,” 379 U.S. at 569, notwithstanding this position of authority, no President may unilaterally abrogate criminal laws duly enacted by Congress as they apply to a subgroup of his most vehement supporters. Accepting that premise, even for the limited purpose of immunizing defendant and others similarly situated from criminal liability, would require this Court to accept that the President may prospectively shield whomever he pleases from prosecution simply by advising them that their conduct is lawful, in dereliction of his constitutional obligation to “take Care that the Laws be faithfully executed.” U.S. Const. art. II, § 3. That proposition is beyond the constitutional pale, and thus beyond the lawful powers of the President.

Even more troubling than the implication that the President can waive statutory law is the suggestion that the President can sanction conduct that strikes at the very heart of the Constitution and thus immunize from criminal liability those who seek to destabilize or even topple the constitutional order. [my emphasis]

In spite of Howell’s warning, we’re bound to see some defense attorneys trying to make this defense anyway. But for various reasons, most of the specific clients that Pierce has collected will have a problem making such claims because of public admissions they’ve already made, specific interactions they had with cops the day of the insurrection, or comments about Trump himself they or their co-conspirators made.

And those problems will grow more acute as the defendants’ co-conspirators continue to enter into cooperation agreements against them.

Or maybe this is a MyPillow defense?

But I’m not sure that Pierce — who, remember, is a civil litigator, not a defense attorney — really intends to mount a public authority defense. His Twitter feed of late suggests he plans, instead, to mount a conspiracy theory defense that the entire thing was a big set-up: the kind of conspiracy theory floated by Tucker Carlson but with the panache of people that Pierce has worked with, like Lin Wood (though even Lin Wood has soured on Pierce).

For example, the other day Pierce asserted that defense attorneys need to see every minute of Capitol Police footage for a week before and after.

And one of his absurd number of Twitter polls suggests he doesn’t believe that January 6 was a Trump inspired [armed] insurrection.

I asked on twitter which he was going to wage, a public authority defense or one based on a claim that this was all informants.

He responded by saying he doesn’t know what the question means.

I asked if he really meant he didn’t know what a public authority defense is, given that he told Judge Mehta he’d be waging one for his clients (or at least Oath Keeper Kenneth Harrelson).

He instead tried to change the subject with an attack on me.

In other words, rather than trying to claim that Trump ordered these people to assault the Capitol, Pierce seems to be suggesting it was all a big attempt to frame Trump and Pierce’s clients.

Don’t get me wrong, a well-planned defense claiming that Trump had authorized all this, one integrating details of what Enrique Tarrio might know about pre-meditation and coordination with Trump and his handlers, might be effective. Certainly, having the kind of broad view into discovery that Pierce is now getting would help. One thing he has done well — with the exception of Lesperance and the Cusicks, if it ever turns into felony charges, as well as Pepe and Samsel, depending on Samsel’s ultimate charges — is pick his clients so as to avoid obvious conflict problems And never forget that there’s a history of right wing terrorists going free based on the kind of screenplays, complete with engaging female characters, that Pierce seems to be planning.

But some of the stuff that Pierce has already done is undermining both of these goals, and the difficulty of juggling actual criminal procedure (as a civil litigator) while trying to write a screenplay could backfire

The Model MAGA Tourist, Anna Morgan-Lloyd, and Evidence Collection

Today, Anna Morgan-Lloyd, a 49-year old grandmother from Indiana was supposed to be sentenced to probation on her misdemeanor trespass charges relating to January 6. That has been postponed on account of the Juneteenth holiday. But I suspect the courts and the government hope that other sentencing hearings — including that of Jessica and Joshua Bustle, who pled guilty on Monday — will take place after Morgan-Lloyd, so as to make hers the model of how to earn a (three-year) probation sentence for participating in the riot.

Five Factors

In their own sentencing memo, the government laid out five factors that presumably are the ones prosecutors are using to identify those who might be offered probation deals.

The first four may be the checklist the government has used to weigh whether to charge those originally arrested on trespass charges with a felony, each of which loosely correlates with one of the felony charges used against insurrectionists (which I’ve added in brackets).

First, the Government is not aware of any evidence that Defendant’s entry into the Capitol was preplanned or coordinated with anyone else, including any extremist or organized groups. [18 USC 1512, obstruction]

Second, the Government is not aware of any evidence that the Defendant incited others to commit acts of violence or destruction. [18 USC 231, civil disorder]

Third, the Government is not aware of any evidence that the Defendant engaged in any violence towards law enforcement. [18 USC 111, assault or resisting federal officers]

Fourth, the Government is not aware of any evidence that the Defendant destroyed or stole any property from the Capitol. [18 USC 1361, depredation of government property]

The fifth factor is more discretionary — but will be important in distinguishing MAGA tourists for those who got swept up into the effort to terrorize Congress. Morgan-Lloyd spent about 10 minutes in the Capitol, but she also didn’t go to any of the places — like the Senate floor or into a Member of Congress’ office — that suggests someone got caught up in the effort to delay the vote count or to hunt down members of Congress.

Fifth, based on the Government’s investigation, it appears that the Defendant remained in a limited part of the Capitol building for a limited period of time – i.e., in one hallway for a little over ten minutes. The Government is not aware of any evidence that the Defendant entered any rooms or offices in the Capitol, the Capitol Rotunda, or the Senate or House Chamber.

I suspect this will be used to distinguish those who committed misdemeanor offenses that merit some jail time (and it’s likely to be weeks, not months), from those who will get probation.

Respect for rule of law

There’s a section of the government memo that addresses respect for rule of law, including laying out the 3-year probation expected of Morgan-Lloyd that includes five factors:

  • The two days Morgan-Lloyd spent in jail after her arrest that gave her a taste of the criminal justice system
  • Three years of probation that, among other things, includes a discretionary condition that will prohibit her from possessing firearms
  • Cooperation with law enforcement, which I’ll return to
  • An expression of contrition, which I’ll return to
  • Both community service and the restitution of her share of the $1.5 million damage to the Capitol

While I doubt the probation sentence will be that onerous for Morgan-Lloyd (though the government notes it is twice as long as the supervised release as she’d get if she did do jail time), for others, the prohibition on owning guns will be. To the extent this is a model for others, it will serve to either disarm former insurrectionists or criminalize owning weapons for some years.

Contrition

One reason I suspect the government would prefer that Morgan Lloyd be sentenced before the Bustles is that even in Monday’s plea hearing, Jessica Bustle made a statement to insist that in addition to some horrible things she said online, she said we should pray for the country. That isn’t actually all that exculpatory, given that it may still reflect a belief that the country is in trouble because the democratic victor will become President. In any case, on Monday at least, the Bustles seemed more anxious to get this done than to express any remorse.

By contrast, Morgan-Lloyd did several things to express contrition. She watched several movies about diversity and wrote two movie reviews (for Schindler’s List and Just Mercy) showing an attempt to get out of her bubble; in the former she criticized her son-in-law’s Holocaust denialism. She also acknowledged that there are less privileged people who still suffer in the US.

I’ve learned that even though we live in a wonderful country things still need to improve. People of all colors should feel as safe as I do to walk down the street.

These may be just busy work a smart defense attorney will impose, but you never know when the process will lead someone to rethink their own bubble.

More importantly Morgan-Lloyd’s statement includes a very accurate description of how her participation in the riot helped those with violent intent.

I felt ashamed that something meant to show support for the President had turned violent. This is not the way to prove any point. At first it didn’t dawn on me, but later I realized that if every person like me, who wasn’t violent, was removed from that crowd, the ones who were violent may have lost the nerve to do what they did. For that I am sorry and take responsibility. It was never my intent to help empower people to act violently.

Again, this may reflect the work of a good defense attorney, but stating it is an important step in moving beyond the insurrection.

Cooperation with law enforcement

Finally, the government motion and Morgan-Lloyd’s statement describe the import of cooperation with law enforcement. In the government’s description, they noted she allowed her phone to be imaged and analyzed.

Third, one important aspect of promoting respect for the law is encouraging cooperation and truthfulness with law enforcement. Here, following her arrest, the Defendant fully cooperated with law enforcement and admitted to the full scope of her actions. In addition to waiving her rights and agreeing to be interviewed by law enforcement, she also allowed her mobile phone to be downloaded for substantive analysis.

Morgan-Lloyds statement described how she freely let the FBI get the contents of her phone.

I openly and honestly told them everything I could recall from that day. I gave them my phone freely to download what they needed. My phone was not locked so they didn’t need a password to get in. If it had a password I would have willingly provided it.

I have described how, especially more recently, the government seems to have been prioritizing the misdemeanor arrests of those who might have important evidentiary videos on their phone. Morgan-Lloyd describes seeing what may be the East Doors get opened from inside.

I saw the side doors being opened from the inside and assumed the door closest to me were also open because people who worked in the Capital Building walked past us. They didn’t look nervous or scared.

If she did see those East Doors open, and especially if she has some kind of video evidence, it may prove important to figure out who precisely initiated that and whether it was premeditated and coordinated with those outside the building (as seems likely).

When I first noted that the government seemed to be arresting those from whom they expected to get key evidence, I imagined that those people, especially, would get favorable terms for sentencing. The emphasis here on sharing her phone contents seems to accord with that.

Former Presiding FISA Judge John Bates’ Curious Treatment of White Person Terrorism

By chance of logistics, the men and women who have presided over a two decade war on Islamic terrorism are now presiding over the trials of those charged in January 6.

To deal with the flood of defendants, the Senior Judges in the DC District have agreed to pick up some cases. And because FISA mandates that at least three of the eleven FISA judges presiding at any given time come from the DC area, and because the presiding judge has traditionally been from among those three, it means a disproportionate number of DC’s Senior Judges have served on the FISA Court, often on terms as presiding judge or at the very least ruling over programmatic decisions that have subjected millions of Americans to collection in the name of the war on terror. Between those and several other still-active DC judges, over 60 January 6 cases will be adjudicated by a current or former FISA judge.

Current and former FISA judges have taken a range of cases with a range of complexity and notoriety:

  • Royce Lamberth served as FISC’s presiding judge from 1995 until 2002 and failed in his effort to limit the effect of the elimination of the wall between intelligence and criminal collection passed in the PATRIOT Act. And during a stint as DC’s Chief Judge he dealt with the aftermath of the Boumediene decision and fought to make the hard won detention reviews won by Gitmo detainees more than a rubber stamp. Lamberth is presiding over 10 cases with 14 defendants. A number of those are high profile cases, like that of Jacob Chansley (the Q Shaman), Zip Tie Guy Eric Munchel and his mother, bullhorn lady and mask refusenik Rachel Powell, and Proud Boy assault defendant Christopher Worrell.
  • Colleen Kollar-Kotelly is still an active DC District judge, but she served as FISC presiding judge starting way back in 2002, inheriting the difficulties created by Stellar Wind from Lamberth. She’s the one who redefined “relevant to” in an effort to bring the Internet dragnet back under court review. She is presiding over ten January 6 cases with 12 defendants. That includes Lonnie Coffman, who showed up to the insurrection with a truck full of Molotov cocktails, as well as some other assault cases.
  • John Bates took over as presiding judge of FISC on May 19, 2009. In 2010, he redefined “metadata” so as to permit the government to continue to use the Internet dragnet; the government ultimately failed to make that program work but FISC has retained that twisted definition of “metadata” nevertheless. In 2011, he authorized the use of “back door searches” on content collected under FISA’s Section 702. In 2013, Bates appears to have ruled that for Islamic terrorists, the FBI can get around restrictions prohibiting surveillance solely for First Amendment reasons by pointing to the conduct of an American citizen suspect’s associates, rather than his or her own. And while not a FISA case, Bates also dismissed Anwar al-Awlaki’s effort to require the government to give him some due process before executing him by drone strike; at the time, the government had presented no public evidence that Awlaki had done more than incite violence. Bates has eight January 6 cases with nine defendants (as well as some unrelated cases), but he is presiding over several high profile ones, including the other Zip Tie Guy, Larry Brock, the scion of a right wing activist family, Leo Bozell IV, and former State Department official Freddie Klein.
  • Reggie Walton, who took over as presiding judge in 2013 but who, even before that, oversaw key programmatic decisions starting in 2008, showed a willingness both on FISC and overseeing the Scooter Libby trial to stand up to the Executive. That includes his extended effort to clean up the phone and Internet dragnet after Bush left in 2009, during which he even shut down part or all of the two dragnets temporarily. Walton is presiding over six cases with eight defendants, most for MAGA tourism.
  • Thomas Hogan was DC District’s head judge in the 2000s. In that role, he presided over the initial Gitmo detainees’ challenges to their detention (though many of the key precedential decisions on those cases were made by other judges who have since retired). Hogan then joined FISC and ultimately took over the presiding role in 2014 and in that role, affirmatively authorized the use of Section 702 back door searches for FBI assessments. Hogan is presiding over 13 cases with 18 defendants, a number of cases involving multiple defendants (including another set of mother-son defendants, the Sandovals). The most important is the case against alleged Brian Sicknick assailants, Julian Khater and George Tanios.
  • James Boasberg, who took over the presiding position on FISC on January 1, 2020 but had started making initial efforts to rein in back door searches even before that, is presiding over about eight cases with ten defendants, the most interesting of which is the case of Aaron Mostofsky, who is himself the son of a judge.
  • Rudolph Contreras, who like Kollar-Kotelly and Boasberg is not a senior judge, is currently a FISC judge. He has six January 6 cases with seven defendants, most MAGA tourists accused of trespassing. There’s a decent chance he’ll take over as presiding judge when Boasberg’s term on FISC expires next month.

Of the most important FISA judges since 9/11, then, just Rosemary Collyer is not presiding over any January 6 cases.

Mind you, it’s not a bad thing that FISA judges will preside over January 6 cases. These are highly experienced judges with a long established history of presiding over other cases, ranging the gamut and including other politically charged high profile cases, as DC District judges do.

That said, in their role as FISA judges — particularly when reviewing programmatic applications — most of these judges have been placed in a fairly unique role on two fronts. First, most of these judges have been forced to weigh fairly dramatic legal questions, in secret, in a context in which the Executive Branch routinely threatens to move entire programs under EO 12333, thereby shielding those programs from any oversight by a judge. These judges responded to such situations with a range of deference, with Royce Lamberth and Reggie Walton raising real stinks and — the latter case — hand-holding on oversight over the course of most of a year, to John Bates and to a lesser degree Thomas Hogan, who often complained at length about abuses before expanding the same programs being abused. Several — perhaps most notably Kollar-Kotelly when she was asked to bring parts of Stellar Wind under FISA — have likewise had to fight to affirm the authority of the entire Article III branch, all in secret.

Ruling on these programmatic FISA applications also involved hearing expansive government claims about the threat of terrorism, the difficulty and necessity of identifying potential terrorists before they attack, and the efficacy of the secret programs devised to do that (the judges who also presided over Gitmo challenges, which includes several on this list, also fielded similar secret claims about the risk of terrorism). Some of those claims — most notably, about the efficacy of the Section 215 phone dragnet — were wildly overblown. In other words, to a degree unmatched by most other judges, these men and women were asked to balance the rights of Americans against secret government claims about the risks of terrorism.

Now these same judges are part of a group being asked to weigh similar questions, but about a huge number of predominantly white, sometimes extremist Christian, defendants, but to do so in public, with defense attorneys challenging their every decision. Here, the balance between extremist affiliation and First Amendment rights will play out in public, but against the background of a two decade war on terror where similar affiliation was criminalized, often in secret.

Generally, the District judges in these cases have not done much on the cases yet, as either Magistrates (on initial pre-indictment appearances) or Chief Judge Beryl Howell (on initial detention disputes) have handled some of the more controversial issues, and in a few cases, Ketanji Brown Jackson presided over arraignments before she started handing off cases in anticipation of her Circuit confirmation process.

But several of the judges have written key opinions on detention, opinions that embody how differently the conduct of January 6 defendants looks to different people.

Lamberth, for example, authored the original detention order for “Zip Tie Guy” Eric Munchel and his mom, Lisa Eisenhart. Even while admitting that Munchel made efforts to limit any vandalization during the riot, Lamberth nevertheless deemed Munchel’s actions a threat to our constitutional government.

The grand jury charged Munchel with grave offenses. In charging Munchel with “forcibly enter[ing] and remain[ing] in the Capitol to stop, delay, and hinder Congress’s certification of the Electoral College vote,” Indictment 1, ECF No. 21, the grand jury alleged that Munchel used force to subvert a democratic election and arrest the peaceful transfer of power. Such conduct threatens the republic itself. See George Washington, Farewell Address (Sept. 19, 1796) (“The very idea of the power and the right of the people to establish government presupposes the duty of every individual to obey the established government. All obstructions to the execution of the laws, all combinations and associations, under whatever plausible character, with the real design to direct, control, counteract, or awe the regular deliberation and action of the constituted authorities, are destructive of this fundamental principle, and of fatal tendency.”). Indeed, few offenses are more threatening to our way of life.

Munchel ‘s alleged conduct demonstrates a flagrant disregard for the rule of law. Munchel is alleged to have taken part in a mob, which displaced the elected legislature in an effort to subvert our constitutional government and the will of more than 81 million voters. Munchel’ s alleged conduct indicates that he is willing to use force to promote his political ends. Such conduct poses a clear risk to the community.

Defense counsel’s portrayal of the alleged offenses as mere trespassing or civil disobedience is both unpersuasive and detached from reality. First, Munchel’s alleged conduct carried great potential for violence. Munchel went into the Capitol armed with a taser. He carried plastic handcuffs. He threatened to “break” anyone who vandalized the Capitol.3 These were not peaceful acts. Second, Munchel ‘s alleged conduct occurred while Congress was finalizing the results of a Presidential election. Storming the Capitol to disrupt the counting of electoral votes is not the akin to a peaceful sit-in.

For those reasons, the nature and circumstances of the charged offenses strongly support a finding that no conditions of release would protect the community.

[snip]

Munchel gleefully entered the Capitol in the midst of a riot. He did so, the grand jury alleges, to stop or delay the peaceful transfer of power. And he did so carrying a dangerous weapon. Munchel took these actions in front of hundreds of police officers, indicating that he cannot be deterred easily.

Moreover, after the riots, Munchel indicated that he was willing to undertake such actions again. He compared himself-and the other insurrectionists-to the revolutionaries of 1776, indicating that he believes that violent revolt is appropriate. See Pullman, supra. And he said “[t]he point of getting inside the building is to show them that we can, and we will.” Id. That statement, particularly its final clause, connotes a willingness to engage in such behavior again.

By word and deed, Munchel has supported the violent overthrow of the United States government. He poses a clear danger to our republic.

This is the opinion that the DC Circuit remanded, finding that Lamberth had not sufficiently considered whether Munchel and his mother would pose a grave future threat absent the specific circumstances present on January 6. They contrasted the mother and son with those who engaged in violence or planned in advance.

[W]e conclude that the District Court did not demonstrate that it adequately considered, in light of all the record evidence, whether Munchel and Eisenhart present an identified and articulable threat to the community. Accordingly, we remand for further factfinding. Cf. Nwokoro, 651 F.3d at 111–12.

[snip]

Here, the District Court did not adequately demonstrate that it considered whether Munchel and Eisenhart posed an articulable threat to the community in view of their conduct on January 6, and the particular circumstances of January 6. The District Court based its dangerousness determination on a finding that “Munchel’s alleged conduct indicates that he is willing to use force to promote his political ends,” and that “[s]uch conduct poses a clear risk to the community.” Munchel, 2021 WL 620236, at *6. In making this determination, however, the Court did not explain how it reached that conclusion notwithstanding the countervailing finding that “the record contains no evidence indicating that, while inside the Capitol, Munchel or Eisenhart vandalized any property or physically harmed any person,” id. at *3, and the absence of any record evidence that either Munchel or Eisenhart committed any violence on January 6. That Munchel and Eisenhart assaulted no one on January 6; that they did not enter the Capitol by force; and that they vandalized no property are all factors that weigh against a finding that either pose a threat of “using force to promote [their] political ends,” and that the District Court should consider on remand. If, in light of the lack of evidence that Munchel or Eisenhart committed violence on January 6, the District Court finds that they do not in fact pose a threat of committing violence in the future, the District Court should consider this finding in making its dangerousness determination. In our view, those who actually assaulted police officers and broke through windows, doors, and barricades, and those who aided, conspired with, planned, or coordinated such actions, are in a different category of dangerousness than those who cheered on the violence or entered the Capitol after others cleared the way. See Simpkins, 826 F.2d at 96 (“[W]here the future misconduct that is anticipated concerns violent criminal activity, no issue arises concerning the outer limits of the meaning of ‘danger to the community,’ an issue that would otherwise require a legal interpretation of the applicable standard.” (internal quotation and alteration omitted)). And while the District Court stated that it was not satisfied that either appellant would comply with release conditions, that finding, as noted above, does not obviate a proper dangerousness determination to justify detention.

The District Court also failed to demonstrate that it considered the specific circumstances that made it possible, on January 6, for Munchel and Eisenhart to threaten the peaceful transfer of power. The appellants had a unique opportunity to obstruct democracy on January 6 because of the electoral college vote tally taking place that day, and the concurrently scheduled rallies and protests. Thus, Munchel and Eisenhart were able to attempt to obstruct the electoral college vote by entering the Capitol together with a large group of people who had gathered at the Capitol in protest that day. Because Munchel and Eisenhart did not vandalize any property or commit violence, the presence of the group was critical to their ability to obstruct the vote and to cause danger to the community. Without it, Munchel and Eisenhart—two individuals who did not engage in any violence and who were not involved in planning or coordinating the activities— seemingly would have posed little threat. The District Court found that appellants were a danger to “act against Congress” in the future, but there was no explanation of how the appellants would be capable of doing so now that the specific circumstances of January 6 have passed. This, too, is a factor that the District Court should consider on remand. [my emphasis]

The DC Circuit opinion (joined by Judith Rogers, who ruled for Gitmo detainees in Bahlul and a Boumediene dissent) was absolutely a fair decision. But it is also arguably inconsistent with the way that the federal government treated Islamic terrorism, in which every time the government identified someone who might engage in terrorism (often using one of the secret programs approved by this handful of FISA judges, and often based off far less than waltzing into the Senate hoping to prevent the certification of an election while wielding zip ties and a taser), the FBI would continue to pursue those people as intolerably dangerous threats. Again, that’s not the way it’s supposed to work, but that is how it did work, in significant part with the approval of FISA judges.

That is, with Islamic terrorism, the government treated potential threats as threats, whereas here CADC required Lamberth to look more closely at what could make an individual predisposed to an assault on our government — a potential threat — as dangerous going forward. Again, particularly given the numbers involved, that’s a better application of due process than what has been used for the last twenty years, but it’s not what happened during the War on Terror (and in weeks ahead, this will be relitigated with consideration of whether Trump’s continued incitement makes these defendants an ongoing threat).

Now compare Lamberth’s order to an order John Bates issued in the wake of and specifically citing the CADC ruling, releasing former State Department official Freddie Klein from pretrial detention. Klein is accused of fighting with cops in the Lower West Terrace over the course of half an hour.

Bates found that Klein, in using a stolen riot shield to push against cops in an attempt to breach the Capitol, was eligible for pre-trial detention, though he expressed skepticism of the government’s argument that Klein had wielded the shield as a dangerous weapon).

The Court finds that Klein is eligible for pretrial detention based on Count 3. Under the BRA, a “crime of violence” includes “an offense that has as an element of the offense the use, attempted use, or threatened use of physical force against the person or property of another.” 18 U.S.C. § 3156(a)(4)(A). The Supreme Court in Johnson v. United States defined “physical force” as “force capable of causing physical pain or injury to another person.” 559 U.S. 133, 140 (2010); see also Def.’s Br. at 9.

[snip]

6 The Court has some doubts about whether Klein “used” the stolen riot shield as a dangerous weapon. The BRA does not define the term, but at least for purposes of § 111(b), courts have held that a dangerous weapon is any “object that is either inherently dangerous or is used in a way that is likely to endanger life or inflict great bodily harm.” See United States v. Chansley, 2021 WL 861079, at *7 (D.D.C. Mar. 8, 2021) (Lamberth, J.) (collecting cases). A plastic riot shield is not an “inherently dangerous” weapon, and therefore the question is whether Klein used it in a way “that is likely to endanger life or inflict great bodily harm.” The standard riot shield “is approximately forty-eight inches tall and twenty-four inches wide,” see Gov’t’s Br. at 13, and the Court disagrees with defense counsel’s suggestion that a riot shield might never qualify as a dangerous weapon, even if swung at an officer’s head, Hr’g Tr. 18:18–25, 19:1–11. See, e.g., United States v. Johnson, 324 F.2d 264, 266 (4th Cir. 1963) (finding that metal and plastic chair qualified as a dangerous weapon when “wielded from an upright (overhead) position and brought down upon the victim’s head”). But it is a close call whether Klein’s efforts to press the shield against officers’ bodies and shields were “likely to endanger life or inflict great bodily harm.” See Chansley, 2021 WL 861079, at *7.

But Bates ruled that there were certain things about the case against Klein — that he didn’t come prepared for combat, that he didn’t bring a weapon with him and instead just made use of what he found there, that any coordination he did involved ad hoc cooperation with other rioters rather than leadership throughout the event — that distinguished him from other defendants who (he suggested) should be detained, thereby limiting the guidelines laid out by CDC.

Bates’ decision on those points is absolutely fair. He has distinguished Klein from other January 6 defendants who, he judges, contributed more to the violence.

But there are two aspects of Bates’ decision I find shocking, especially from the guy who consistently deferred to Executive Authority on matters of national security and who sacrificed all of our communicative privacy in the service of finding hidden terrorist threats to the country. First, Bates dismissed the import of Klein’s sustained fight against cops because — he judged — Klein was only using force to advance the position of the mob, not trying to injure anyone.

The government’s contention that Klein engaged in “what can only be described as hand-to-hand combat” for “approximately thirty minutes” also overstates what occurred. See Gov’t’s Br. at 6. Klein consistently positioned himself face-to-face with multiple officers and also repeatedly pressed a stolen riot shield against their bodies and shields. His objective, as far as the Court can tell, however, appeared to be to advance, or at times maintain, the mob’s position in the tunnel, and not to inflict injury. He is not charged with injuring anyone and, unlike with other defendants, the government does not submit that Klein intended to injure officers. Compare Hr’g Tr. 57:12–18 (government conceding that the evidence does not establish Klein intended to injure anyone, only that “there was a disregard of care whether he would injure anyone or not” in his attempt to enter the Capitol), with Gov’t’s Opp’n to Def.’s Mot. to Reopen Detention Hearing & For Release on Conditions, ECF No. 30 (“Gov’t’s Opp’n to McCaughey’s Release”), United States v. McCaughey, III, 21-CR-040-1, at 11 (D.D.C. Apr. 7, 2021) (government emphasizing defendant’s “intent to injure” an officer who he had pinned against a door using a stolen riot shield as grounds for pretrial detention). And during the time period before Klein obtained the riot shield, he made no attempts to “battle” or “fight” the officers with his bare hands or other objects, such as the flagpole he retrieved. That does not mean that Klein could not have caused serious injury— particularly given the chaotic and cramped atmosphere inside the tunnel. But his actions are distinguishable from other detained defendants charged under § 111(b) who clearly sought to incapacitate and injure members of law enforcement by striking them with fists, batons, baseball bats, poles, or other dangerous weapons.

[snip]

Klein’s conduct was forceful, relentless, and defiant, but his confrontations with law enforcement were considerably less violent than many others that day, and the record does not establish that he intended to injure others. [my emphasis]

Bates describes that Klein wanted to use force in the service of occupying the building, not harming individual cops.

Of course, using force to occupy a building in service of halting the vote count is terrorism, but Bates doesn’t treat it as such.

Even more alarmingly, Bates flips how Magistrate Zia Faruqui viewed a government employee like Klein turning on his own government. The government had argued — and Faruqui agreed — that when a federal employee with Top Secret clearance attacks his own government, it is not just a crime but a violation of the Constitutional oath he swore to protect the country against enemies foreign and domestic.

Bates — after simply dismissing the import of Klein’s admittedly limited criminal history that under any other Administration might have disqualified him from retaining clearance — describes what Klein did as a “deeply concerning breach of trust.”

The government also argues that “Klein abdicated his responsibilities to the country and the Constitution” on January 6 by violating his oath of office as a federal employee to “support and defend the Constitution of the United States against all enemies, foreign and domestic.” Id. at 24–25 (quoting 5 U.S.C. § 3331). The fact that, as a federal employee, Klein actively participated in an assault on our democracy to thwart the peaceful transfer of power constitutes a substantial and deeply concerning breach of trust. More so, too, because he had been entrusted by this country to handle “top secret” classified information to protect the United States’ most sensitive interests. In light of his background, Klein had, as Magistrate Judge Faruqui put it, every “reason to know the acts he committed” on January 6 “were wrong,” and yet he took them anyway. Order of Detention Pending Trial at 4. Klein’s position as a federal employee thus may render him highly culpable for his conduct on January 6. But it is less clear that his now-former employment at the State Department heightens his “prospective” threat to the community. See Munchel, 2021 WL 1149196, at *4. Klein no longer works for or is affiliated with the federal government, and there is no suggestion that he might misuse previously obtained classified information to the detriment of the United States. Nor, importantly, is he alleged to have any contacts—past or present—with individuals who might wish to take action against this country. [my emphasis]

Bates then argues that Klein’s ability to obtain clearance proves not that he violates oaths he takes (the government argument adopted by Faruqui), but that he has the potential to live a law-abiding life.

Ultimately, Klein’s history—including his ability to obtain a top-level security clearance—shows his potential to live a law-abiding life. His actions on January 6, of course, stand in direct conflict with that narrative. Klein has not—unlike some other defendants who have been released pending trial for conduct in connection with the events of January 6—exhibited remorse for his actions. See, e.g., United States v. Cua, 2021 WL 918255, at *7–8 (D.D.C. Mar. 10, 2021) (Moss, J.) (weighing defendant’s deep remorse and regret in favor of pretrial release). But nor has he made any public statements celebrating his misconduct or suggesting that he would participate in similar actions again. And it is Klein’s constitutional right to challenge the allegations against him and hold the government to its burden of proof without incriminating himself at this stage of the proceedings. See United States v. Lawrence, 662 F.3d 551, 562 (D.C. Cir. 2011) (“[A] district court may not pressure a defendant into expressing remorse such that the failure to express remorse is met with punishment.”). Hence, despite his very troubling conduct on January 6, the Court finds on balance that Klein’s history and characteristics point slightly toward release.

In short, Bates takes the fact that Klein turned on the government he had sworn to protect and finds that that act weighs in favor of release.

Bates judges that this man, whom he described as having committed violence to advance the goal of undermining an election, nevertheless finds that — having already done that — Klein does not pose an unmanageable prospective threat.

Therefore, although it is a close call, the Court ultimately does not find that Klein poses a substantial prospective threat to the community or any other person. He does not pose no continuing danger, as he contends, given his demonstrated willingness to use force to advance his personal beliefs over legitimate government objectives. But what future risk he does present can be mitigated with supervision and other strict conditions on his release.

Again, it’s not the decision itself that is troubling. It’s the thought process Bates used, both for the way Bates flips Klein’s betrayal of his oath on its head, and for the way that Bates views the threat posed by a man who already used force in an attempt to coerce a political end. And it’s all the more troubling knowing how Bates has deferred to the Executive’s claims about the nascent threat posed even by people who have not, yet, engaged in violence to coerce a political end.

Bates similarly showed no deference to the government’s argument that Larry Brock, a retired Lieutenant Colonel who also brought zip ties into the Senate chamber, should have no access to the Internet given really inflammatory statements on social media, including a call for “fire and blood” as early as November. Bates decided on his own that Probation could sufficiently monitor Brock’s Internet use, comparing Brock to (in my opinion) two unlike defendants to justify the decision. Again, the decision itself is absolutely reasonable, but for the guy who decided the government could monitor significant swaths of transnational Internet traffic out of a necessity to identify potential terrorists, for a guy who okayed the access of US person’s content with no warrant, it’s fairly remarkable that he hasn’t deferred to the government about the danger Brock poses on the Internet (to say nothing of Brock’s likely sophistication at evading surveillance).

Again, I’m not complaining about any of these opinions. The outcomes are all reasonable. It is genuinely difficult to fit the events of January 6 into our existing framework (and perhaps that’s a good thing). Plus, there is such a range of fact patterns that even in the Munchel opinion give force to the mob even while trying to adjudicate individuals’ actions.

But either because these discussions are public, or because we simply think about white person terrorism differently, less foreign, perhaps, than we do Islamic terrorism, the very same judges who’ve grappled with these questions for the past two decades don’t necessarily have the ready answers they had in the past.

FISA Judges January 6 cases

Lamberth:

Kollar-Kotelly:

Bates:

Walton:

Hogan:

Boasberg:

Contreras:

Zip Tie Guy Eric Munchel Gets a Second Chance at Release

The DC Circuit just remanded the case of Zip Tie Guy Eric Munchel and his mother Lisa Eisenhart for reconsideration of their bid for release. Robert Wilkins wrote the opinion, joined by Judith Rogers; Gregory Katsas dissented in some but not all of the opinion.

I wrote here and here about how this was a close case. As such, this opinion will provide important guideposts for other January 6 making similar arguments.

The opinion agreed that January 6 posed an urgent risk to our democracy, generally presenting a broad authority to detain people. But it also emphasized that only some of the participants in the insurrection pose enough of a danger to afford exceptional authority to detain people.

It cannot be gainsaid that the violent breach of the Capitol on January 6 was a grave danger to our democracy, and that those who participated could rightly be subject to detention to safeguard the community. Cf. Salerno, 481 U.S. at 748 (“[I]n times of war or insurrection, when society’s interest is at its peak, the Government may detain individuals whom the government believes to be dangerous.” (citations omitted)). But we have a grave constitutional obligation to ensure that the facts and circumstances of each case warrant this exceptional treatment.

In the case of Munchel and his mom, the opinion found that the analysis of the danger that Munchel and his mom present to the community was not forward looking, and because they had not done a number of things — actually broken through barricades, assaulted cops, planned the operation, or abetted that process — their dangerousness was not sufficient to make their unwillingness to follow release conditions a factor. In particular, without the special circumstances of the vote certification and the violent mob, the mother and son likely would not pose the same threat to our country.

Here, the District Court did not adequately demonstrate that it considered whether Munchel and Eisenhart posed an articulable threat to the community in view of their conduct on January 6, and the particular circumstances of January 6. The District Court based its dangerousness determination on a finding that “Munchel’s alleged conduct indicates that he is willing to use force to promote his political ends,” and that “[s]uch conduct poses a clear risk to the community.” Munchel, 2021 WL 620236, at *6. In making this determination, however, the Court did not explain how it reached that conclusion notwithstanding the countervailing finding that “the record contains no evidence indicating that, while inside the Capitol, Munchel or Eisenhart vandalized any property or physically harmed any person,” id. at *3, and the absence of any record evidence that either Munchel or Eisenhart committed any violence on January 6. That Munchel and Eisenhart assaulted no one on January 6; that they did not enter the Capitol by force; and that they vandalized no property are all factors that weigh against a finding that either pose a threat of “using force to promote [their] political ends,” and that the District Court should consider on remand. If, in light of the lack of evidence that Munchel or Eisenhart committed violence on January 6, the District Court finds that they do not in fact pose a threat of committing violence in the future, the District Court should consider this finding in making its dangerousness determination. In our view, those who actually assaulted police officers and broke through windows, doors, and barricades, and those who aided, conspired with, planned, or coordinated such actions, are in a different category of dangerousness than those who cheered on the violence or entered the Capitol after others cleared the way.

[snip]

The District Court also failed to demonstrate that it considered the specific circumstances that made it possible, on January 6, for Munchel and Eisenhart to threaten the peaceful transfer of power. The appellants had a unique opportunity to obstruct democracy on January 6 because of the electoral college vote tally taking place that day, and the concurrently scheduled rallies and protests. Thus, Munchel and Eisenhart were able to attempt to obstruct the electoral college vote by entering the Capitol together with a large group of people who had gathered at the Capitol in protest that day. Because Munchel and Eisenhart did not vandalize any property or commit violence, the presence of the group was critical to their ability to obstruct the vote and to cause danger to the community. Without it, Munchel and Eisenhart—two individuals who did not engage in any violence and who were not involved in planning or coordinating the activities— seemingly would have posed little threat. The District Court found that appellants were a danger to “act against Congress” in the future, but there was no explanation of how the appellants would be capable of doing so now that the specific circumstances of January 6 have passed. This, too, is a factor that the District Court should consider on remand.

I suspect mom, at least, will get bail on remand. And I suspect other defendants will try to argue (some with likely success) that they fit the same categories as Munchel and his mom — willing participants in an insurrection, but not key enough players to detain awaiting trial.

Among the principles it lays out:

January 6 was a Constitutional risk, but some defendants were only a threat on that day with that mob

As noted, the Circuit agrees that January 6 presented such a risk to the country that extraordinary detention authorities may be necessary. It included a list of circumstances — similar to the ones that Beryl Howell laid out — that reach this heightened level of risk. Some defendants (particularly the far right lone actors who did not engage in violence personally) will likely be able to ask for review of their own detention. But others — including some of the Oath Keepers — will have the case for their detention reinforced because of their role aiding and abetting a concerted attack on democracy.

DC District judges can review detention remotely

While dicta, a footnote complains that it took so long — until they had been transported to DC — for the two to have a detention review in DC. It asks why a District judge could not have conducted the review remotely.

While COVID-19 issues caused a delay in the appellants’ transport to the District of Columbia, the record does not indicate why a D.C. District Judge could not have heard this matter prior to February 17, even if the appellants were in another location. Ultimately, this issue, while troubling, is not presented as a ground for reversal in this appeal.

This is something that has come up in other cases, repeatedly. This panel, at least, seems to agree that a DC District judge can review detention remotely.

DC District judges don’t have to defer to the local Magistrates’ decisions if there’s new evidence

Munchel and his mother argued that once the Magistrate in Tennessee judged them not to be a danger, the District had no authority to review that determination. The Circuit disagrees, but only with regards to the circumstances of this case, where the government provides new evidence to the District.

The statute concerning review of a Magistrate Judge’s release order says nothing about the standard of the district court’s review, see 18 U.S.C. § 3145(a), and we have not squarely decided the issue.3 We need not break new ground in this case, because as the appellants maintain in their briefing, Munchel Reply Mem. 8, n.3, the government submitted substantial additional evidence to the district judge that had not been presented to the Magistrate Judge, including the 50- minute iPhone video, a partial transcript of the video, and several videos from Capitol CCTV.4 As a result, this was not an instance where the District Court made its dangerousness finding based on the same record as was before the Magistrate Judge. Here, the situation was more akin to a new hearing, and as such, the issue before the District Court was not really whether to defer (or not) to a finding made by the Magistrate Judge on the same evidentiary record.

3 This court stated long ago, in dictum, in a case arising under the predecessor Bail Reform Act that district courts review such prior determinations with “broad discretion.” Wood v. United States, 391 F.2d 981, 984 (D.C. Cir. 1968) (“Evaluating the competing considerations is a task for the commissioner or judge in the first instance, and then the judges of the District Court (where they have original jurisdiction over the offense) have a broad discretion to amend the conditions imposed, or to grant release outright, if they feel that the balance has been improperly struck.”).

Before we’re done, I wouldn’t be surprised if the DC Circuit is asked to weigh in directly on the standard of review here.

DC District judges can consider whether a defendant will abide by release conditions

Munchel and his mother had tried to limit when a District judge can consider whether they will abide by release conditions, not to reconsider bail but only to revoke it.

Second, we reject the argument that the District Court inappropriately relied on a finding that appellants were unlikely to abide by release conditions to detain them, because that factor is applicable only to revocation of pretrial release. The District Court’s finding as to appellants’ potential compliance is relevant to the ultimate determination of “whether there are conditions of release that will reasonably assure . . . the safety of any other person and the community.” 18 U.S.C. § 3142(f) and (g). Indeed, other courts have found a defendant’s potential for compliance with release conditions relevant to the detention inquiry.

[snip]

While failure to abide by release conditions is an explicit ground for revocation of release in 18 U.S.C. § 3148(b), it defies logic to suggest that a court cannot consider whether it believes the defendant will actually abide by its conditions when making the release determination in the first instance pursuant to 18 U.S.C. § 3142.

This has come up with other defendants. That said, this opinion as a whole says that a refusal to abide by release conditions by itself is not enough to detain someone. This part of the ruling will be particularly impactful for those detained because either a belief in QAnon or Nazism suggests a general disdain for our existing government.

A taser counts as a weapon

Munchel and his mother also argued that their alleged crimes don’t merit detention because the taser Munchel brought with him is not a weapon. Not only did the Circuit disagree, but it also readily applied the analysis to Eisenhart’s abetting exposure.

Third, we reject Munchel and Eisenhart’s arguments that the charged offenses do not authorize detention. Under 18 U.S.C. § 3142(f)(1)(E), detention is permitted if the case involves “any felony . . . that involves the possession or use of a . . . dangerous weapon.” (emphasis added). Two of the charges in the indictment meet this description: Count Two— entering a restricted building “with intent to impede and disrupt the orderly conduct of Government business . . . while armed with a dangerous weapon,” in violation of 18 U.S.C. § 1752(a)(1) and (a)(2) and 18 U.S.C. § 2 (aiding and abetting charge for Eisenhart); and Count Three—violent entry or disorderly conduct, again “while armed with a dangerous weapon,” in violation of 40 U.S.C. § 5104(e)(1) and (e)(2) and 18 U.S.C. § 2. Indictment, ECF No. 21 at 2. The Bail Reform Act thus explicitly authorizes detention when a defendant is charged with committing certain felonies while possessing a dangerous weapon, as is alleged in this indictment.5

5 Eisenhart’s argument that a taser is not a dangerous weapon— which Eisenhart raises for the first time in reply, and which Munchel seeks to adopt in his reply—is without merit. The relevant statute, 40 U.S.C. § 5104(a)(2)(B), defines the term “dangerous weapon” to include “a device designed to expel or hurl a projectile capable of causing injury to individuals or property. . . .” While the record contains no evidence or proffer as to how Munchel’s taser operates, a taser is commonly understood as a device designed to expel a projectile capable of causing injury to individuals. See Cantu v. City of Dothan, 974 F.3d 1217, 1224–25 (11th Cir. 2020); Mattos v. Agarano, 661 F.3d 433, 443 (9th Cir. 2011) (“[A] taser uses compressed nitrogen to propel a pair of ‘probes’—aluminum darts tipped with stainless steel barbs connected to the taser by insulated wires—toward the target at a rate of over 160 feet per second. Upon striking a person, the taser delivers a 1200 volt, low ampere electrical charge. The electrical impulse instantly overrides the victim’s central nervous system, paralyzing the muscles throughout the body, rendering the target limp and helpless.” (internal alterations and quotation marks omitted)). Thus, at this stage, the evidence sufficiently demonstrates that Munchel’s taser is a dangerous weapon under the statute.

This ruling matters specifically for Richard “Bigo” Barnett (who also brought a taser with him), but also holds that the weapons enhancement on the 1752 and 5104 charges that other defendants face will merit detention. The Circuit also readily approved Eisenhart’s exposure on account of Munchel’s taser. That matters because many defendants are charged with abetting certain conduct that merits detention.

Detention analysis remains individualized

Munchel and his mom, like virtually all defendants arguing for release, have compared their own case to that of others who got released. Because Munchel only raised this in his reply, the Circuit didn’t address the comparison per se. But said that the District Court is in better position to review such claims.

Finally, Munchel and Eisenhart argue that the government’s proffer of dangerousness should be weighed against the fact that the government did not seek detention of defendants who admitted they pushed through the police barricades and defendants charged with punching officers, breaking windows, discharging tasers at officers, and with planning and fundraising for the riot. See Munchel Reply Mem. at 9–12. Appellants did not raise this claim before the District Court and the government did not substantively respond to it on appeal because Appellants raised it for the first time in Munchel’s reply. Whatever potential persuasiveness the government’s failure to seek detention in another case carries in the abstract, every such decision by the government is highly dependent on the specific facts and circumstances of each case, which are not fully before us. In addition, those facts and circumstances are best evaluated by the District Court in the first instance, and it should do so should appellants raise the issue upon remand.

As several people watching the hearing for Connie Meggs’ attempt to get release, every detention fight going forward will have to account for this one. With its broad support for holding conspirators accountable for the violence of others, it may not help Meggs all that much. But it will crystalize these ongoing detention disputes.

Update: I’m wrong. Judge Amit Mehta just released Meggs.

John Bolton Versus Navy Versus Egan

John Bolton filed a motion opposing the government’s legal actions against him last night (it is both a memorandum in opposition to the Temporary Restraining Order as well as a motion to dismiss). It is particularly interesting because of some things Jack Goldsmith and Marty Lederman laid out in this post. As they note, the judge presiding over today’s hearing has no tolerance for Executive Branch bullshit, even on classified matters; the government’s own description of what happened raises lots of questions about regularity of the claim of classification, particularly as respects to whether there any compartmented information (SCI) remains in Bolton’s book; and the scrutiny of the government will be particularly stringent here, since it wants to censor something before publication.

This, however, might be a case in which a judge rejects or at least refuses to countenance the government’s classification decisions, at least for purposes of the requested injunction. That’s because of a confluence of unusual factors.  They include:

  • Several years ago, Judge Lamberth declared at a conference of federal employees that federal courts are “far too deferential” to the executive branch’s claims that certain information must be classified on national security grounds and shouldn’t be released to the public.  Judges shouldn’t afford government officials “almost blind deference,” said Lamberth.
  • The decision to classify material here appears to be highly irregular.  The career official responsible for prepublication review at the National Security Council determined after a long process that Bolton’s manuscript contained no classified information.  A political appointee who had only recently become a classifying authority, Ellis, then arrived at a different conclusion after only a brief review.  It is even possible that Ellis classified information in Bolton’s manuscript for the first time after Bolton was told by Knight that the manuscript contained no classified information.  At a minimum there were clearly process irregularities in the prepublication consideration of Bolton’s manuscript.
  • The D.C. Circuit in dicta in McGehee stated that the government “would bear a much heavier burden” than the usual rationality review of executive branch classified information determinations in cases where the government seeks “an injunction against publication of censored items”—i.e., in a case like this one.  Although it’s not clear whether that’s right, the First Amendment concerns raised by this case, in this setting, may affect how credulous Judge Lamberth is of the government’s classified information determinations and of the unusual way in which Bolton’s prepublication review was conducted.

Bolton’s motion answers a lot of questions that Goldsmith and Lederman asked in their post. For example, they ask whether Ellen Knight consulted with other top classification authorities before she verbally told Bolton the book had no more classified information in it; Bolton’s motion describes that on the call when Knight told Bolton the book had no more classified information, she, “cryptically replied that her ‘interaction’ with unnamed others in the White House about the book had ‘been very delicate,’ and that there were ‘some internal process considerations to work through.'”

Goldsmith and Lederman lay out a lot of questions contemplating the likelihood that Michael Ellis claimed the manuscript had SCI information after Knight informed Bolton that it had no more classified information, of any kind (remember, Ellis is likely the guy who moved Trump’s Ukraine transcript onto the compartmented server after people started raising concerns about it, so there would be precedent). Bolton’s brief lays out an extended description of why, if this indeed happened, it doesn’t matter with respect to the way his SCI non-disclosure agreement is written, because based on the record even the government presents, Bolton had no reason to believe the manuscript had SCI in it, and plenty of reason to believe it had no classified information of any type, when he instructed Simon & Schuster to move towards publication.

However, in its brief, the Government asserts for the first time that Ambassador Bolton’s book contains SCI and, therefore, that the SCI NDA applied to his manuscript and required that he receive written authorization from the NSC to publish it. See Doc. 3 at 12–14. This surprise assertion that the book contains SCI, even if true, would not alter the conclusion that the SCI NDA is inapplicable to this case.

The Government is not painting on a blank canvas when it asserts that Ambassador Bolton’s book contains SCI. Rather, the Government’s assertion comes after a six-month course of dealing between the parties that informs whether and how the NDAs apply. See RESTATEMENT (SECOND) OF CONTRACTS § 202(4) (1981); see also id. § 223. Ambassador Bolton submitted his manuscript for prepublication review on December 30, 2019. Over the next four months, he (or his counsel) and Ms. Knight exchanged more than a dozen emails and letters, participated in numerous phone calls, and sat through more than a dozen hours of face-to-face meetings, painstakingly reviewing Ambassador Bolton’s manuscript. Yet, in all that time, Ms. Knight never asserted—or even hinted—that the manuscript contained SCI, even as she asserted that earlier drafts contained classified information. 102 After conducting an exhaustive process in which she reviewed the manuscript through least four waves of changes, Ms. Knight concluded that it contains no classified information—let alone SCI—as the Government concedes. Doc. 1 ¶ 46.

Nor did Mr. Eisenberg assert in either his June 8 or June 11 letters that the manuscript contains SCI. Nor did Mr. Ellis assert in his June 16 letter that the manuscript contains SCI. Indeed, not even the Government’s complaint asserted that the manuscript contains SCI, even as it specifically alleges that it contains “Confidential, Secret, and Top Secret” information. Doc. 1 ¶ 58. The first time that anyone in the Government so much as whispered that the manuscript contains SCI to either Ambassador Bolton or the public was yesterday, when the Government filed its motion. For nearly six months, it has been common ground between the NSC and Ambassador Bolton that his manuscript does not contain SCI. Only now, on the eve of the book’s publication and in service of seeking a prior restraint, has the Government brought forth this allegation.

And here is the key point: Ambassador Bolton authorized Simon & Schuster to publish his manuscript weeks ago, not long after receiving Ms. Knight’s confirmation that the book did not contain classified information and long before the Government’s first assertion yesterday that the book contained SCI. 103 Thus, at the time Ambassador Bolton proceeded with publishing his book—a decision that has long-since become irrevocable—he had absolutely no reason to believe that the book contained SCI. Indeed, quite the opposite: the Government had given him every reason to believe that it agreed with him that the book did not contain SCI. And if the book did not contain SCI, the SCI NDA did not apply when Ambassador Bolton authorized the book’s publication.

Yet the Government now argues that the SCI NDA did apply based on its discovery of alleged SCI six months after the prepublication-review process began. If that argument is sustained—if, that is, an author may be held liable under the SCI NDA even though neither the author nor the Government believed that the author’s writing contained SCI through four months of exhaustive prepublication review—it would mean that any federal employee who signs the SCI NDA would have no choice but to submit any writing, and certainly any writing that could even theoretically contain SCI, and then await written authorization before publishing that writing. The risk of liability would simply be too great for any author to proceed with publishing even a writing that both he and the official in charge of prepublication review believe, in good faith, is not subject to the SCI NDA.

What Goldsmith and Lederman don’t address — but Bolton does at length in his brief — is the role of the President in these matters. Bolton lays out (as many litigants against the President have before) abundant evidence that the President was retaliating here, including by redefining as highly classified any conversation with him at a very late stage in this process.

Yet, the evidence is overwhelming that the Government’s assertion that the manuscript contains classified information, like the corrupted prepublication review process that preceded it, is pretextual and in bad faith:

  • On January 29, the President tweeted that Ambassador Bolton’s book is “nasty & untrue,” thus implicitly acknowledging that its contents had been at least partially described to him. He also said that the book was “All Classified National Security.”112
  • On February 3, Vanity Fair reported that the President “has an enemies list,” that “Bolton is at the top of the list,” and that the “campaign against Bolton” included Ms. Knight’s January 23 letter asserting that the manuscript contained classified information.113 It also reported that the President “wants Bolton to be criminally investigated.”114
  • On February 21, the Washington Post reported that “President Trump has directly weighed in on the White House [prepublication] review of a forthcoming book by his former national security adviser, telling his staff that he views John Bolton as ‘a traitor,’ that everything he uttered to the departed aide about national security is classified and that he will seek to block the book’s publication.”115 The President vowed: “[W]e’re going to try and block the publication of [his] book. After I leave office, he can do this.”116
  • As described in detail above, Ambassador Bolton’s book went through a four-month prepublication-review process with the career professionals at NSC, during which he made innumerable revisions to the manuscript in response to Ms. Knight’s concerns. At the end of that exhaustive process, she stated that she had no further edits to the manuscript,117 thereby confirming, as the Government has admitted, that she had concluded that it did not contain any classified information.118
  • At the conclusion of the prepublication-review process on April 27, Ms. Knight thought that Ambassador Bolton was entitled to receive the pro-forma letter clearing the book for publication and suggested that it might be ready that same afternoon.119 She and Ambassador Bolton even discussed how the letter should be transmitted to him.120
  • During that same April 27 conversation, Ms. Knight described her “interaction” with unnamed others in the White House about the book as having “been very delicate,”121 and she had “some internal process considerations to work through.”
  • After April 27, six weeks passed without a word from the White House about Ambassador Bolton’s manuscript, despite his requests for a status update.122
  • When the White House finally had something new to say, it was to assert its current allegations of classified information on June 8, in a letter that—by the White House’s own admission—was prompted by press reports that the book was about to be published.123
  • Even though the manuscript was submitted to NSC on December 30, 2019, and despite the exhaustive four-month review and the six weeks of silence that had passed since Ms. Knight’s approval of the manuscript on April 27, the White House’s June 8 letter gave itself until June 19—only four days before the book was due to be published—to provide Ambassador Bolton’s counsel with a redacted copy of the book identifying the passages the White House purported to believe were classified.
  • On the eve of this lawsuit being filed, in response to a question about this lawsuit, the President stated: “I told that to the attorney general before; I will consider every conversation with me as president highly classified. So that would mean that if he wrote a book, and if the book gets out, he’s broken the law.”124 The President reiterated: “Any conversation with me is classified.”125 The President added that “a lot of people are very angry with [Bolton] for writing a book” and that he “hope[d]” that Ambassador Bolton “would have criminal problems” due to having published the book.126
  • On June 16, the NSC provided to Ambassador Bolton a copy of the manuscript with wholesale redactions removing the portions it now claims are classified. Consistent with President Trump’s claim, statements made by the President have been redacted, as have numerous passages that depict the President in an unfavorable light.127

It is clear from this evidence that the White House has abused the prepublication-review and classification process, and has asserted fictional national security concerns as a pretext to censor, or at least to delay indefinitely, Ambassador Bolton’s right to speak.

While Goldsmith and Lederman focused, with good reason, on Ellis’ role, Bolton is focused on President Trump’s role. Bolton lays out abundant evidence that the reason this prepublication review went off the rails is because the President, knowing how unflattering it was to him, made sure it did.

And that raises entirely new issues because under a SCOTUS precedent called Navy v. Egan, the Executive has long held that the President has unreviewable authority over classification and declassification decisions. That doesn’t change contract law. And–given that the courts have already granted the President a limited authority to protect the kinds of things being called SCI here under Executive Privilege–it raises real questions about whether Trump is relying on the proper legal claim here (which may be a testament to the fact that Executive Privilege holds little sway over former government officials).

Still, courts have sanctioned a bunch of absurdity about classification under the Navy v. Egan precedent, arguably far beyond the scope of what that decision (which pertained to clearances) covered. Yet, I would argue that Bolton has made Navy v. Egan a central question (though he does not mention it once) in this litigation.

Can the President retroactively classify information as SCI solely to retaliate against someone for embarrassing him — including by exposing him to criminal prosecution under the Espionage Act? That’s the stuff of tyranny, and Royce Lamberth is not the judge who’ll play along with it.

Let me very clear however, particularly for the benefit of some frothy leftists who are claiming — in contradiction to all evidence — that liberals are somehow embracing Bolton by criticizing Trump’s actions here: Bolton’s plight is not that different from what whistleblowers claim happens to them when they embarrass the Executive Branch generally. Their books get held up in review and some of them get prosecuted under the Espionage Act.

What makes this more ironic, involving Bolton, is that he has been on the opposite side of this issue. Indeed, the Valerie Plame leak investigation focused closely on whether Dick Cheney’s orders to Scooter Libby to leak classified information — after which he leaked details consistent with knowing Plame’s covert status, as well as details from the National Intelligence Estimate — were properly approved by George Bush. Bolton was a party to that pushback and his deputy Fred Fleitz was suspected of having had a more active role in it. In that case, the President (or Vice President) retaliated for the release of embarrassing information by declassifying information for political purposes. But in that case, the details of what the President had done have remained secret, protected by Libby’s lies to this day.

In this case, Bolton can present a long list of evidence — including the President’s own statements — that suggest these classification decisions were retaliatory, part of a deliberate effort to trap Bolton in a legal morass.

So Bolton isn’t unique for his treatment as a “whistleblower” (setting aside his cowardice in waiting to say all this). He’s typical. What’s not typical is how clearly the President’s own role and abusive intent is laid out. And because of the latter fact — because, as usual, Trump hasn’t hidden his abusive purpose — it may more directly test the limits of the President’s supposedly unreviewable authority to classify information. So, ironically, someone like Bolton may finally be in a position to test whether Navy v. Egan really extends to sanctioning the retroactive classification of information solely to expose someone to criminal liability.