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“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.

6. 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.

7. 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.

8. 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.

9, 10, 11. 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).

12. 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.

13. 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.

14. 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.

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

16. 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.

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.

Rosemary Collyer Responds to the DOJ IG Report in Fairly Blasé Fashion

Judge Rosemary Collyer just released a four page order responding to the DOJ IG Report showing problems with Carter Page’s FISA applications.

Before I explain the letter further, let me just explain for those who haven’t followed my FISA work. Collyer is the presiding judge of the court. Traditionally, it falls to the presiding judge to scold DOJ when things go haywire, and so it was to be expected that Collyer would write this. Collyer is nowhere near the most aggressive presiding judge in the court’s history (that honor might go to Reggie Walton, though Royce Lamberth was presiding when the Woods Procedures that weren’t followed here were introduced after he bitched about systematic problems). As an example, she wrote what I consider to be among the worst programmatic FISA opinions not written by a Dick Cheney flunkie, and she was reluctant to implement the new amicus mandated by Congress in the USA Freedom Act.

Predictably, while this is a sharp opinion, it’s not that onerous. She starts by spending a page explaining why candor is so important for the FISC, language that is probably for the benefit of those unfamiliar with the court. She cites three prior opinions complaining about lack of candor, just one of which I consider among the greatest hits.

She then reviews the problems laid out in the IG Report she considers most important, citing:

  • The failure to explain Carter Page’s past relationship with the CIA
  • Exaggerations about the degree to which Christopher Steele’s reporting had been corroborated
  • Contradictions of Steele’s claims made by his sub-source
  • Page’s denials he had worked closely with Paul Manafort
  • Page’s denials he knew the two Russians described in the Steele dossier
  • Details suggesting claims attributed to Sergei Millian in the dossier were unreliable

In addition, Collyer dedicates a paragraph to describing Kevin Clinesmith’s alteration of an email to hide Page’s prior CIA relationship, alluding to a prior order in which she seems to have ordered a review of everything he had touched.

In addition, while the fourth electronic surveillance application for Mr. Page was being prepared, an attorney in the FBI’s Office of General Counsel (OGC) engaged in conduct that apparently was intended to mislead the FBI agent who ultimately swore to the facts in that application about whether Mr. Page had been a source of another government agency. See id. at 252-56. The information about the OGC attorney’s conduct in the OIG report is consistent with classified submissions made to the FISC by the government on October 25, 2019, and November 27, 2019. Because the conduct ofthe OGC attorney gave rise to serious concerns about the accuracy and completeness of the information provided to the FISC in any matter in which the OGC attorney was involved, the Court ordered the government on December 5, 2019, to, among other things, provide certain information addressing those concerns.

In addition to ordering the declassification of that December 5 order, Collyer also ordered the FBI to explain, by January 10, what they’re going to do to fix the more general problem.

THEREFORE, the Court ORDERS that the government shall, no later than January 10, 2020, inform the Court in a sworn written submission of what it has done, and plans to do, to ensure that the statement of facts in each FBI application accurately and completely reflects information possessed by the FBI that is material to any issue presented by the application. In the event that the FBI at the time of that submission is not yet able to perform any of the planned steps described in the submission, it shall also include (a) a proposed timetable for implementing such measures and (b) an explanation of why, in the government’s view, the information in FBI applications submitted in the interim should be regarded as reliable.

So she’s not calling for the FISC itself to do anything different. FBI will likely provide a plan implementing the FISC-based recommendations made by Michael Horowitz, as well as additional updates to the Woods Procedures.

This is, in the grand scheme of things, an order deferring to the government to fix the problem, not an order designed to impose new requirements (of the kind Lamberth himself ordered years ago) from the court until FBI proves it has cleaned up its act.

Which leaves it up to Congress to impose any more substantive fixes.

The FISA Court’s Uncelebrated Good Points

I’m working on a post responding to this post from Chelsea Manning calling to abolish the FISA Court. Spoiler alert: I largely agree with her, but I think the question is not that simple.

As background to that post, I wanted to shift the focus from a common perception of the FISC — that it is a rubber stamp that approves all requests — to a better measure of the FISC — the multiple ways it has tried to rein in the Executive. I think the FISC has, at times, been better at doing so than often given credit for. But as I’ll show in my larger post, those efforts have had limited success.

Minimization procedures

The primary tool the FISC uses is in policing the Executive is minimization procedures approved by the court. Royce Lamberth unsuccessfully tried to use minimization procedures to limit the use of FISA-collected data in prosecutions (and also, tools for investigation, such as informants). Reggie Walton was far more successful at using and expanding very detailed limits on the phone — and later, the Internet — dragnet to force the government to stop treating domestically collected dragnet data under its own EO 12333 rules and start treating it under the more stringent FISC-imposed rules. He even shut down the Internet dragnet in fall (probably October 30) 2009 because it did not abide by limits imposed 5 years earlier by Colleen Kollar-Kotelly.

There was also a long-running discussion (that involved several briefs in 2006 and 2009, and a change in FISC procedure in 2010) about what to do with Post Cut Through Dialed Digits (those things you type in after a call or Internet session has been connected) collected under pen registers. It appears that FISC permitted (and probably still permits) the collection of that data under FISA (that was not permitted under Title III pen registers), but required the data get minimized afterwards, and for a period over collected data got sequestered.

Perhaps the most important use of minimization procedures, however, came when Internet companies stopped complying with NSLs requiring data in 2009, forcing the government to use Section 215 orders to obtain the data. By all appearances, the FISC imposed and reviewed compliance of minimization procedures until FBI, more than 7 years after being required to, finally adopted minimization procedures for Section 215. This surely resulted in a lot less innocent person data being collected and retained than under NSL collection. Note that this probably imposed a higher standard of review on this bulky collection of data than what existed at magistrate courts, though some magistrates started trying to impose what are probably similar requirements in 2014.

Such oversight provides one place where USA Freedom Act is a clear regression from what is (today, anyway) in place. Under current rules, when the government submits an application retroactively for an emergency search of the dragnet, the court can require the government to destroy any data that should not have been collected. Under USAF, the Attorney General will police such things under a scheme that does not envision destroying improperly collected data at all, and even invites the parallel construction of it.

First Amendment review

The FISC has also had some amount — perhaps significant — success in making the Executive use a more restrictive First Amendment review than it otherwise would have. Kollar-Kotelly independently imposed a First Amendment review on the Internet dragnet in 2004. First Amendment reviews were implicated in the phone dragnet changes Walton pushed in 2009. And it appears that in the government’s first uses of the emergency provision for the phone dragnet, it may have bypassed First Amendment review — at least, that’s the most logical explanation for why FISC explicitly added a First Amendment review to the emergency provision last year. While I can’t prove this with available data, I strongly suspect more stringent First Amendment reviews explain the drop in dragnet searches every time the FISC increased its scrutiny of selectors.

In most FISA surveillance, there is supposed to be a prohibition on targeting someone for their First Amendment protected activities. Yet given the number of times FISC has had to police that, it seems that the Executive uses a much weaker standard of First Amendment review than the FISC. Which should be a particularly big concern for National Security Letters, as they ordinarily get no court review (one of the NSL challenges that has been dismissed seemed to raise First Amendment concerns).

Notice of magistrate decisions

On at least two occasions, the FISC has taken notice of and required briefing after magistrate judges found a practice also used under FISA to require a higher standard of evidence. One was the 2009 PCTDD discussion mentioned above. The other was the use of combined orders to get phone records and location data. And while the latter probably resulted in other ways the Executive could use FISA to obtain location data, it suggests the FISC has paid close attention to issues being debated in magistrate courts (though that may have more to do with the integrity of then National Security Assistant Attorney General David Kris than the FISC itself; I don’t have high confidence it is still happening). To the extent this occurs, it is more likely that FISA practices will all adjust to new standards of technology than traditional courts, given that other magistrates will continue to approve questionable orders and warrants long after a few individually object, and given that an individual objection isn’t always made public.

Dissemination limits

Finally, the FISC has limited Executive action by limiting the use and dissemination of certain kinds of information. During Stellar Wind, Lamberth and Kollar-Kotelly attempted to limit or at least know which data came from Stellar Wind, thereby limiting its use for further FISA warrants (though it’s not clear how successful that was). The known details of dragnet minimization procedures included limits on dissemination (which were routinely violated until the FISC expanded them).

More recently John Bates twice pointed to FISA Section 1809(a)(2) to limit the government’s use of data collected outside of legal guidelines. He did so first in 2010 when he limited the government’s use of illegally collected Internet metadata. He used it again in 2011 when he used it to limit the government’s access to illegally collected upstream content. However, I think it likely that after both instances, the NSA took its toys and went elsewhere for part of the relevant collection, in the first case to SPCMA analysis on EO 12333 collected Internet metadata, and in the second to CISA (though just for cyber applications). So long as the FISC unquestioningly accepts EO 12333 evidence to support individual warrants and programmatic certificates, the government can always move collection away from FISC review.

Moreover, with USAF, Congress partly eliminated this tool as a retroactive control on upstream collection; it authorized the use of data collected improperly if the FISC subsequently approved retention of it under new minimization procedures.

These tools have been of varying degrees of usefulness. But FISC has tried to wield them, often in places where all but a few Title III courts were not making similar efforts. Indeed, there are a few collection practices where the FISC probably imposed a higher standard than TIII courts, and probably many more where FISC review reined in collection that didn’t have such review.

Center for Democracy and Technology’s James Dempsey on “the Wall,” Then and Now

Remember “the wall” that used to separate intelligence from criminal investigations and was used as an excuse for intelligence agencies not sharing intelligence they were permitted to share before 9/11?

It was demolished in 2001 — when the PATRIOT Act explicitly permitted what had been permitted before, sharing of intelligence information with the FBI — and 2002 — when the FISA Court of Review overruled presiding FISA Judge Royce Lamberth’s efforts to sustain some Fourth Amendment protections in criminal investigations using minimization procedures.

Nevertheless, the specter of a wall that didn’t prevent the Intelligence Committee from discovering 9/11 rising again is one of the things lying behind PCLOB’s weak recommendations on back door searches in its report on Section 702.

Of particular note, that’s what the Center for Democracy and Technology’s James Dempsey cites in his squishy middle ground recommendation on back door searches.

It is imperative not to re-erect the wall limiting discovery and use of information vital to the national security, and nothing in the Board’s recommendations would do so. The constitutionality of the Section 702 program is based on the premise that there are limits on the retention, use and dissemination of the communications of U.S. persons collected under the program. The proper mix of limitations that would keep the program within constitutional bounds and acceptable to the American public may vary from agency to agency and under different circumstances. The discussion of queries and uses at the FBI in this Report is based on our understanding of current practices associated with the FBI’s receipt and use of Section 702 data. The evolution of those practices may merit a different balancing. For now, the use or dissemination of Section 702 data by the FBI for non-national security matters is apparently largely, if not entirely, hypothetical. The possibility, however, should be addressed before the question arises in a moment of perceived urgency. Any number of possible structures would provide heightened protection of U.S. persons consistent with the imperative to discover and use critical national security information already in the hands of the government.546 

546 See Presidential Policy Directive — Signals Intelligence Activities, Policy Directive 28, 2014 WL 187435, § 2, (Jan. 17, 2014) (limiting the use of signals intelligence collected in bulk to certain enumerated purposes), available at http://www.whitehouse.gov/the-press-office/2014/01/17/presidential-policy-directive-signals-intelligence-activities.  [my emphasis]

Dempsey situates his comments in the context of the “wall.” He then suggests there are two possible uses of back door searches: “national security matters,” and non-national security matters, with the latter being entirely hypothetical, according to what the FBI self-reported to PCLOB.

Thus, he’s mostly thinking in terms of “possible structures [that] would provide heightened protection of US. persons,” to stave off future problems. He points to President Obama’s PPD-28 as one possibility as a model.

But PPD-28 is laughably inapt! Not only does the passage in question address “bulk collection,” which according to the definition Obama uses and PCLOB has adopted has nothing to do with Section 702. “[T]he Board does not regard Section 702 as a ‘bulk’ collection program,” PCLOB wrote at multiple points in its report.

More troubling, the passage in PPD-28 Dempsey cites permits bulk collection for the following uses:

(1) espionage and other threats and activities directed by foreign powers or their intelligence services against the United States and its interests;

(2) threats to the United States and its interests from terrorism;

(3) threats to the United States and its interests from the development, possession, proliferation, or use of weapons of mass destruction;

(4) cybersecurity threats;

(5) threats to U.S. or allied Armed Forces or other U.S or allied personnel;

(6) transnational criminal threats, including illicit finance and sanctions evasion related to the other purposes named in this section;

Ultimately, this represents — or should — an expansion of permissible use of Section 702 data, because its discussion of  terrorism and cybersecurity do not distinguish between those with an international nexus and those without. And the discussion of transnational crime might subject any petty drug dealer selling dope from Mexico to foreign intelligence treatment.

That this is what passes for the mushy middle on PCLOB is especially curious given that Dempsey was one of the first PCLOB member to express concern about back door searches. He did so in November’s Section 215 hearing, and even suggested limiting back door searches to foreign intelligence purposes (which is not the standard for FBI, in any case) was inadequate. Nevertheless, in last week’s report, he backed only very weak protections for back door searches, and did so within the context of national security versus non-national security, and not intelligence versus crime.

Now, I don’t mean to pick on Dempsey exclusively — I’ll have a few more posts on this issue. And to be clear, Dempsey does not represent CDT at PCLOB; he’s there in his private capacity.

But I raised his affiliation with CDT because in that capacity, Dempsey was part of an amicus brief, along with representatives from ACLU, Center for National Security Studies, EPIC, and EFF, submitted in the In Re Sealed Case in 2002, in which the FISA Court of Review reversed Lamberth and permitted prosecutor involvement in FISA warrants. That brief strongly rebuts the kind of argument he adopted in last week’s PCLOB report.

Read more

Judge Lamberth Takes DOJ to Woodshed; DOJ Moves Peas Under Different Pods

CryingJusticeThere was an interesting, albeit little noticed, order issued about ten days ago in the somewhat below the radar case of Royer v. Federal Bureau of Prisons. Royer is a federal inmate who has served about half of his 20 year sentence who in 2010 started bringing a mandamus action complaining that he was improperly classified as a “terrorist inmate” causing him to be wrongfully placed in Communication Management Unit (CMU) detention. The case has meandered along ever since.

Frankly, beyond that, the root case facts are not important to the January 15, 2014 Memorandum and Order issued by Judge Royce Lamberth in the case. Instead, Lamberth focused, like a white hot laser, on misconduct, obstreperousness and sheer incompetence on the part of the United States Department of Justice (DOJ) who represents the Defendant BOP in the case.

Here are some samples straight off of Royce Lamberth’s pen:

Plaintiff’s discovery requests were served on June 19, 2013. Defendant failed to respond on July 19, 2013, as required, nor did defendant file a motion for extension of time. Defendant’s first error, therefore, was egregious—arrogating to itself when it would respond to outstanding discovery.

and

Defendant’s fourth error was on August 5, 2013, when it filed its responses to interrogatories and produced a few additional documents. The answers to interrogatories contained no signature under oath, with untimely objections signed by counsel. Even novices to litigation know that answers to interrogatories must be signed under oath. Any attorney who practices before this Court should know that this Court does not tolerate discovery responses being filed on a “rolling” basis

Lamberth then goes on to grant the inmate plaintiff pretty much all his discovery motion and hammers the DOJ by telling plaintiff to submit its request for sanctions in the form of award of Read more

Why Has John Bogdan Not Yet Been Relieved of Command at Guantanamo?

Bogdan was clearly put out by having to host Special Envoy Clifford Sloan, the new leader of the U.S. State Department's Office of Guantanamo Closure when he visited on July 2. I'm guessing he's upset at the whole idea of closing Gitmo.

Bogdan was clearly put out by having to host Special Envoy Clifford Sloan, the new leader of the U.S. State Department’s Office of Guantanamo Closure, when he visited on July 2. I’m guessing he’s upset at the whole idea of closing Gitmo. (Defense Department photo)

It has been clear for some time that the current hunger strike crisis at Guantanamo can be laid squarely at the feet of John Bogdan, who heads the Joint Task Force Guantanamo Detention Group. In other words, he is the head of the guard force. As I noted in this post, Shaker Aamer’s attorney, in a statement to Andy Worthington, clearly blamed Bogdan for the actions that precipitated the hunger strike.

Yesterday, Judge Royce Lamberth dealt a severe setback to Bogdan, striking down one of his most needlessly abusive practices. From Charlie Savage at the New York Times:

A federal judge on Thursday ordered the military to stop touching the groins of detainees at the prison at Guantánamo Bay, Cuba, when they are moved from their cells to speak with lawyers. The procedure had led some prisoners to stop meeting with or calling their lawyers.

In a 35-page opinion, Judge Royce C. Lamberth, the chief judge of the Federal District Court for the District of Columbia, called the searches — which included guards wedging their hands between the genitals and thighs of the detainees as many as four times when moving them to a meeting and back to their cells — “religiously and culturally abhorrent” to Muslims. He portrayed the procedure as unnecessary and intended to “actively discourage” meetings with lawyers.

He said the warden, Col. John Bogdan, must return to a longtime procedure in which guards shake the underwear of detainees by the band to dislodge any contraband, but do not to touch their buttocks or genitals.

Savage goes on:

He also directed the military to allow detainees who are weak from hunger strikes to meet with their lawyers in the same buildings in which they are housed, and to stop using new transport vans that have low roofs that detainees had said required them to be painfully crouched while shackled.

Julie Tate at the Washington Post has more:

Lawyers for detainees had argued that the motivation for the search procedure was not to enhance security but to isolate detainees from their attorneys in an effort to crush a growing hunger strike at the base. The hunger strike began in February as a reaction to guards searching detainees’ Korans. More than two-thirds of the 166 detainees at Guantanamo are participating in the protest, with more than 40 being force-fed.

Lamberth said the military’s action had to be judged in light of previous actions that limited the ability of attorneys to meet with their clients.

“As petitioners’ counsel correctly noted during this Court’s hearing, ‘[t]he government is a recidivist when it comes to denying counsel access,’ ” Lamberth wrote.

Recall that when public pressure finally got high enough over the abusive treatment of Bradley Manning at the Quantico Brig (where he was forced to stand naked) the government replaced the Brig Commander and then transferred Manning from Quantico to Leavenworth, where his treatment dramatically improved.

In the case of Guantanamo, many of the hunger-striking prisoners Bogdan is abusing (see this post from Marcy for more abusive practices) are already cleared for release, so the government should move quickly to release them to get them away from further abuse. However, considering Bogdan’s shaky background (I have mused that he may well have trained death squads in Iraq) and the public attention generated by the ICRC showing up at Guanantamo ahead of its scheduled date due to widespread knowledge of the latest round of abusive practices, it is clear that one of the most affirmative actions the US could take toward diffusing the situation would be to relieve Bogdan of command immediately.

Do Barack Obama and Chuck Hagel have the courage to the right thing and send Bogdan packing? I’m not holding my breath.

Update July 14: I am very embarrassed to have missed this important development Jason Leopold reported on May 23:

Military attorneys representing former CIA captives detained in a top secret camp at Guantanamo have called on Secretary of Defense Chuck Hagel to examine whether the head of the prison’s guard force is fit for command.

Col. John Bogdan, the commander of Guantanamo’s Joint Detention Group, has been singled out by the defense lawyers for revamping dormant policies, such as inspections of Qurans and genital patdowns, that gave rise to a hunger strike, now entering its fourth month.

“Although we represent so-called ‘high value detainees, many of our concerns relate to the treatment of all prisoners, to include men whose internment appears to be indefinite” states a 13-page letter and signed by nineteen attorneys, including several who represent self-professed 9/11 mastermind Khalid Sheikh Mohammed and Abd al Rahim al Nashiri, the alleged architect behind the USS Cole bombing, sent to Hagel on Monday. “There has been a serious degradation in the quality of life for detainees in Guantanamo Bay over the past year. This change appears to have coincided with the arrival of the new Joint Detention Group Commander, Col. John V. Bogdan.”

The letter was also reported on by MSNBC, where their article also cited a Seton Hall study and made the suggestion that Bogdan has perjured himself.