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On January 6, Look to the Continuances

Riley June Williams — the woman with ties to the far right who was shown on video directing people around the Capitol and is accused of abetting the theft of Nancy Pelosi’s laptop — has not yet been indicted. Normally, the Speedy Trial Act gives prosecutors a limit of time — roughly 30 days — to formally charge you after you’re arrested. But with Williams, the government has been using a series of motions to extend this timeline. They currently have until July 21 to indict Williams.

That, by itself, isn’t all that unusual. But amid an ongoing conversation about whether the January 6 investigation will hold the most powerful accountable for the insurrection, I want to point to the existing long unindicted defendants to suggest, again, we don’t really know where this investigation is going.

Tracking which January 6 defendants haven’t been indicted is one way to identify cases that might be more interesting than others. Jon Schaffer’s case got continued for months leading up to his entry into a cooperation agreement on April 16. And Christopher Kelly’s case got continued for months before the government moved to dismiss it on June 1. At least some of these weren’t the boilerplate unopposed motions for a continuance, citing the unprecedented challenge of assembling all the evidence in this case, that have been used in most defendants cases; they were more specific requests for more time to conduct the investigation. As the disparate fate of these two men suggests, you can’t really tell what is interesting about a case if the formal charging is delayed.

But such non-boilerplate continuances are one thing I track (and I know other journalists do too) for potentially interesting cases. They happen in formally charged cases, too (for example, QAnoner Doug Jensen’s case got continued until tomorrow in such a fashion after prosecutors enhanced his own legal exposure). But it is easier to track the especially interesting delays in cases, like Williams’, where the defendant hasn’t been indicted yet.

To be sure, such continuances don’t guarantee a case will be interesting. A number of these cases end up in delayed felony charges (though that’s true of the boilerplate continuances as well). Sometimes these delays are attributable to delays in attorneys getting approved to represent defendants in the DC District. In several cases, such continuances were used when either the defendant or their lawyer got COVID. Sometimes, it even seems like the system has lost defendants (with just a handful of exceptions, thankfully not those being detained). There are a couple of defense attorneys and a couple of prosecutors who just seem to like doing it this way.

Often, lawyers attribute the delay to plea discussions (though that’s generally the reason for the unopposed continuances, as well as the consent ones).

Sometimes something else seems to be going on. For example, Prosecutor Brandi Harden has twice gotten continuances in the case of Emanuel Jackson, the developmentally challenged homeless man who walked into the middle of the insurrection off the street and was handed a baseball bat which he used to assault cops, with the explanation, “There are outstanding issues related to Mr. Jackson’s case, that the parties are continuing to address.”

In several cases, such continuances seem to tie to a defendant’s other existing legal problems. For example, Bryan Betancur violated probation by lying about his purposes for going to DC on January 6, and so has been thrown back in jail because of it (though Betancur’s friend, Britney Dillon, was recently charged in the riot). In another example, when the FBI searched Adam Honeycutt’s home in association with this January 6 arrest warrant, they found guns and marijuana that exposed him to charges in Florida; DC prosecutors are delaying his January 6 prosecution until after a trial this week on the possession charges in Florida. But in at least one of those cases — that of Kash Kelly, charged with just misdemeanor trespassing — the delay comes with a defendant who was discussed in a conversation involving Rudy Giuliani and who cooperated against his fellow gang members in his drug-related prosecution in Illinois. The fact that Ryan Samsel’s then girlfriend, Raechel Genco, has had her own trespassing case continued, makes his more intriguing, though there’s a long list of reasons that readily explain why Samsel’s prosecution has been delayed, not least that he was brutally beaten by someone yet to be determined while he in the DC jail.

All that said, I wanted to point to some clusters that may suggest future developments. An easy one are the cases of Emily Hernandez, her uncle William Merry, and their friend Paul Westover all of which have been delayed with continuances. They traveled to insurrection together and show up in pictures showing off the piece of a sign from Nancy Pelosi’s office they stole.

It would be unsurprising to see these cases get combined into a conspiracy, possibly with others from St. Louis.

That said, a goodly number of defendants awaiting formal charges were in Pelosi’s office, including Williams.

Along with Williams, there are others, like Anthime Gionet, who have known ties with America First or were in the vicinity of others self-identifying as America First who are also awaiting their charges.

Then there’s the case of Brandon Straka. He’s the head of the Walkaway campaign, and was a speaker on January 5. There’s no allegation he entered the door of the Capitol, though at a time when he was on the stairs, he was involved in attempting to take a shield from an officer and for that got charged with civil disorder (in addition to the standard trespass crimes). He obviously could be charged with obstruction, but that hasn’t been charged yet. On May 24, the parties asked for a continuance and excludable delay until August, but Magistrate Judge Robin Meriweather hasn’t yet issued an order approving that. (There’s one other person that engaged in higher level organizing, but I suspect it’s the choice of her attorney.)

Update: This morning Judge Meriweather signed the Straka continuance.

Update: Doug Jensen wants to go work while he awaits resolution of his case (specifically mentioning self-surrender) so he settle his affairs and take care of his family.

Anatomy of a Potential January 6 Cooperation Agreement

I’ve written in passing about Jon Ryan Schaffer, the front man for the heavy metal band Iced Earth who was arrested for involvement with spraying bear spray during the January 6 insurrection, several times. In this post I noted that there must be something more to his case because Schaffer had been sitting, uncharged, in jail for months.

Jon Ryan Schaffer: The front man for the heavy metal band Iced Earth and an Oath Keeper lifetime member, Schaffer was arrested for spraying some police with bear spray. But two months after his arrest and detention, he has not been (publicly) indicted and only arrived in DC on March 17. The government has not publicly responded to his motion to dismiss his case on Speedy Trial grounds. All of which suggests there’s something more there that we can’t see.

Yesterday I included Schaffer among those likely to get cooperation agreements (rather than straight guilty pleas), then updated the post with yet another data point suggesting I was correct.

[A]t least some of the expected pleas may be cooperation agreements. For example, Ryan Samsel — who breached the west side of the Capitol in coordination with Proud Boys Dominic Pezzola and William Pepe, knocking out a cop along the way — asked for a continuance to discuss a plea. One of the main Oath Keeper prosecutors, Ahmed Baset, asked for a continuance before indicting Oath Keeper associate Jon Schaffer, who was among the worst treated defendants and who agreed to the continuance in spite of remaining in pre-trial detention. Kash Kelly, currently charged with trespassing but also someone raised in discussions between Proud Boys affiliate James Sullivan and Rudy Giuliani, got a continuance to discuss a plea. Bryan Betancur, a Proud Boy who got jailed for a probation violation after he lied to his probation officer to attend the event, also got a continuance to discuss a plea to resolve his trespassing charges. The aforementioned Riley Williams, who was charged with obstructing the vote count and stealing a laptop from Nancy Pelosi, was filmed directing movement inside the Capitol, and has ties with Nick Fuentes, also got a continuance to discuss pleading before indictment. All five of these people likely have information that would be of use to prosecutors. All could limit their prison time (which would likely be significant for Samsel, who is accused of assault, played a key role in the insurrection, and has a criminal record) by cooperating with prosecutors. If any of these people sign plea deals — especially Samsel — it will likely provide new insight into how the conspiracy worked. Even with a plea deal, Samsel may still face a stiff sentence.

[snip]

Update: Meanwhile, Jon Schaffer just agreed to two more weeks in jail.

So the signs suggesting the government was pursuing a cooperation agreement in this case have been pretty clear.

But yesterday, DOJ made that even more clear by posting a filing to PACER — which was supposed to be sealed — making such negotiations explicit.

As stated in the Consent Motion to Continue, the government and counsel for the defendant have conferred and are continuing to communicate about this matter. This has entailed a series of debrief interviews with the defendant that began on March 2, 2021. Based on these debrief interviews, the parties are currently engaged in good-faith plea negotiations, including discussions about the possibility of entering into a cooperation plea agreement aimed at resolving the matter short of indictment. Among the contemplated plea terms upon acceptance of a plea are the defendant’s release pending sentencing.

[snip]

[T]he parties request that this filing be docketed under seal. Such an order is appropriate because the filing relates to sensitive information about the defendant’s cooperation with the government and ongoing plea negotiations that are not public. Accordingly, disclosure may reveal the existence, scope, and direction of the ongoing and confidential investigation. If alerted to this information, investigation targets against whom the defendant may be providing information about could be immediately prompted to flee from prosecution, destroy or conceal incriminating evidence, alter their operational tactics to avoid future detection, attempt to influence or intimidate potential witnesses, and otherwise take steps to undermine the investigation and avoid future prosecution. Accordingly, these facts present an extraordinary situation and a compelling governmental interest which justify sealing of this filing pertaining to this investigation that is being submitted at this time. [my emphasis]

You’ll recall that PACER was one of the targets of the Solar Winds hack, which raised concerns that sensitive documents detailing things like cooperation agreements and investigative targets might have been compromised. The Courts’ efforts to respond have bolloxed up PACER ever since, which has contributed to an unacceptable delay in postings of non-sensitive documents as the flood of January 6 filings hit.

One of the few things that DOJ has managed to post in timely fashion is this filing, which was supposed to be sealed.

This disclosure may make it harder to negotiate a cooperation agreement (or who knows? it might make it easier!). Certainly, it may present security concerns for Schaffer when he is released, whether or not he cops a plea, because he would get such a plea deal in exchange for testimony against a highly skilled armed militia, and they’ll assume he got a deal if he is released pre-trial.

Aside from the very real concerns about how this might affect the investigation into the Oath Keepers, however, the release of the filing is useful for the details it provides.

First, this cooperation deal, if it happens, will be the first of all 350+ defendants.

The government’s ongoing plea negotiations with this defendant are the first and most advanced plea negotiations involving any of the over 300 Capitol Riot defendants.

That would mean that others — like the cooperating witness with damning information on Dominic Pezzola and the un-indicted co-conspirator in the Proud Boys conspiracy — have not been charged at all (as descriptions of them in filings imply). It also suggests that for all the reporting about imminent deals, the cooperation agreements, at least, are two weeks or more away. Every other potential cooperation deal I named in this post follows the same pattern of filings that Schaffer’s does, but they have later deadlines for their continuance, though Ryan Samsel is the only other one who is in custody for January 6 (as opposed to other things), which adds urgency to any plea deal:

  • Bryan Betancur (in MD state custody): April 27
  • Ryan Samsel (in federal custody): May 7 (after being extended from April 1, moving to swap his attorney, then unmoving to do so, though currently he is represented by both)
  • Christopher Kelly (not in custody): May 10
  • Riley June Williams (not in custody): May 28
  • Kash Kelly (in Federal prison for gang-related drug crimes which he also cooperated on): indefinite

It looks like Samsel might have been the first plea deal, but an aborted swap of lawyers suggests he may have gotten cold feet. (Recall that Rick Gates did something similar before he flipped in the Mueller investigation; because of his criminal record, Samsel faces a stiffer prison sentence than Schaffer regardless of what happens).

Schaffer’s filing explains why cooperation agreements will be weeks away, too: First, plea deals are being reviewed “at various levels of government.”

Plea terms have thus required extensive review and approval at various levels of government necessitating more time than usual to approve and negotiate.

Given that Biden doesn’t have a confirmed US Attorney in DC, this likely means that at least Acting Deputy Attorney General and former National Security Division head under Obama John Carlin is reviewing these deals, if not Merrick Garland himself. Lisa Monaco should be confirmed as Deputy Attorney General imminently, and she’s likely to be interested in all this, too. That is, the level of review this filing suggests this plea deal is getting also hints at the (unsurprisingly) high level involvement in the investigation as a whole.

Perhaps one of the most damaging disclosures by the release of this document is that Schaffer’s attorneys have admitted, non-publicly, things they’ve argued against publicly. In a filing asking for pre-trial release, Schaffer’s lawyers argued that merely possessing bear spray did not make Schaffer enough of a threat to require pre-trial detention.

The Government sought “detention based on [Mr. Schaffer] carrying a dangerous weapon inside a restricted ground.” Reporter’s Transcript of Detention Hearing, p. 7: 8- 10.2 Magistrate Judge Faruqui detained Mr. Schaffer “Upon the Motion of the Government attorney pursuant to 18 U.S.C. § 3142(f)(1).” (Doc. 12, p. 1)

Mr. Schaffer cannot be detained pursuant to 18 U.S.C. § 3142 (f)(1)(E) because the Government’s allegation Mr. Schaffer simply possessed bear spray does not support a finding his case involved a dangerous weapon. The Government cannot establish a can of bear spray is dangerous weapon when it is simply possessed.

Schaffer’s arrest warrant affidavit described him to be “among” a group of “rioters who sprayed” USCP with bear spray, but didn’t say he personally had used the bear spray to assault the cops, nor did it charge him with doing so.

SCHAFFER was among the rioters who sprayed United States Capitol Police officers with “bear spray,” a form of capsaicin pepper spray sold by many outdoors retailers, as part of their efforts to push the officers back inside the Capitol and breach the Capitol Building themselves.

According to this filing, however, Schaffer’s lawyers conceded during a closed session that he could be charged, presumably including assault for spraying the bear spray, right away.

The parties agree that maintaining the current detention posture, as well as the government forestalling return of a grand jury indictment against the defendant1 , are necessary at this stage to facilitate good-faith plea negotiations.

1 As acknowledged by the defense during the sealed portion of the April 2, 2021 status hearing, the government is in a position to rapidly obtain an indictment against the defendant should plea negotiations fail.

But the filing also suggests that the grand jury may be posing another bottleneck to this process.

Additional time may also be necessary in the event plea conditions require completion of certain requirements before entering into a formal agreement before the court, such as the defendant testifying before the grand jury.

That is, if and when a plea deal is agreed, they still may require Schaffer to provide any testimony to the grand jury before they finalize the plea and release him.

As noted, the unintentional release of this filing may undermine that process from the start. But it least it provides some clarity on how this process is working for Schaffer and others.

Update: Baked Alaska (real name Anthime Gionet) is another person in whose case the government got a consent motion to delay further proceedings. I’m less confident this would involve a cooperation agreement — it may be a way to forestall questions about whether he is media.

Politico Claims It Embarrasses Joe Biden that Non-Violent Civil Disobedience Merits Little or No Jail Time

Last week, Politico reported as news that non-violent January 6 trespassers might get little to no jail time which — it further claimed — might embarrass the Biden Administration.

Many Capitol rioters unlikely to serve jail time

The cases could embarrass the Biden administration, which has portrayed the Jan. 6 siege as a dire threat to democracy.

I have tremendous respect for the reporters involved, Josh Gerstein and Kyle Cheney. Yet the fact that experienced DOJ beat reporters could claim, as news, that non-violent civil disobedience might get no jail time made me really rethink the reporting on January 6, including my own. It’s crazier still that reporters might claim — generally, or in this situation — that a Democratic President might be embarrassed by DOJ treating civil disobedience as a misdemeanor offense.

In fact, Gerstein and Cheney are reporting on a subset of all the January 6 defendants, fewer than 60 of the 230 who had been formally charged by the time they wrote this, which they nevertheless describe as “many” of them.

A POLITICO analysis of the Capitol riot-related cases shows that almost a quarter of the more than 230 defendants formally and publicly charged so far face only misdemeanors. Dozens of those arrested are awaiting formal charges, even as new cases are being unsealed nearly every day.

Then, four paragraphs later, Politico explains why (they say) this might embarrass the Biden Administration: because both Biden himself and Merrick Garland called the larger event — in which 1,000 people, including 200 for assault and 100 for roles in a militia conspiracy, many still at large, must now be suspects — as a heinous attack.

The prospect of dozens of Jan. 6 rioters cutting deals for minor sentences could be hard to explain for the Biden administration, which has characterized the Capitol Hill mob as a uniquely dangerous threat. Before assuming office, Biden said the rioters’ attempt to overturn the election results by force “borders on sedition”; Attorney General Merrick Garland has called the prosecutions his top early priority, describing the storming of Congress as “a heinous attack that sought to disrupt a cornerstone of our democracy, the peaceful transfer of power to a newly elected government.”

Nowhere in the article do they provide any evidence that the assault on the Capitol wasn’t a heinous attack.

They base their claim that Biden might be embarrassed on expectations that DOJ prosecutors set, without noting that the first charges were filed before Biden was inaugurated and long before Garland was confirmed.

Justice Department prosecutors sent expectations sky-high in early statements and court filings, describing elaborate plots to murder lawmakers — descriptions prosecutors have tempered as new details emerged.

Jacob “QAnon Shaman” Chansley was arrested on January 8 and indicted on January 11. Eric “Zip Tie Guy” Munchel was arrested on January 10 and indicted, with his mother, on February 12. Thomas Caldwell was arrested on January 19 and indicted along with Oath Keepers Jessica Watkins and Donovan Crowl on January 27. They (including Caldwell but not Watkins and Crowl) are the main defendants, of more than 350, about whom prosecutors can fairly be said to have tempered “sky-high” expectations. Their arrests and that expectation-setting happened under Jeffrey Rosen and Michael Sherwin, not under Biden and definitely not under Merrick Garland (under whom DOJ referred Sherwin to OPR for investigation after he did some expectation-setting on 60 Minutes). Even still, for all four (as well as other edge cases about whom the press set high expectations, like Riley June Williams), the investigation remains ongoing and there are reasons, including ties to the militia conspiracies, to believe there was some basis for the original suspicions about these people.

Likewise, the decision to arrest first and investigate later, a decision that led to the flood of arrests before prosecutors really knew who had done the most egregious things during the attack, also occurred under the prior Administration.

Indeed, under Garland (though not necessarily because of Garland or the departure of Sherwin), DOJ seems to have focused more of their ongoing misdemeanor arrests on suspects who might have video footage of interest to prosecutors or defense attorneys, with far more of a focus in recent weeks on arresting assault and militia suspects. And one of the reasons for the delays described in the story is that after Garland came in, DOJ asked for 60 days to catch up on discovery. We may yet learn that he and his subordinates decided to change the “arrest first, investigate later” approach adopted before he came in.

Sure, the press has claimed that the government has backed off some of its claims in the militia conspiracies. They did so, for example, when prosecutors backed off certain claims solely for the purpose of an Ethan Nordean detention hearing that, filings submitted weeks later suggested, may have been an effort to protect a pending conspiracy indictment and, probably, a cooperating witness. They’ve done so with the Oath Keepers, even though recent developments suggest even Jessica Watkins’ lawyer may now understand her role in what appears to be a larger conspiracy coordinated in Signal leadership chats is more damning than Watkins originally claimed. If anything, the Oath Keeper and Proud Boy conspiracies may be more sophisticated tactically than originally claimed, and that’s before any explanation about things like who paid for vans of Proud Boys to travel from FL and what happened at twin events in DC and Florida in December, in which conspirators (and key Trump figures) played central roles. That’s also while the person who laid a pipe bomb the night before the the attack remains at large.

To further back its claim that Biden might be embarrassed, Politico implies that all the plea deals expected in weeks ahead will be misdemeanor pleas without jail time, which will be “awkward” for DOJ to defend.

Prosecutors have signaled that plea offers for some defendants will be coming within days and have readily acknowledged that some of the cases are less complicated to resolve than others.

“I think we can work out a non-trial disposition in this case,” Assistant U.S. Attorney Emory Cole told Judge Dabney Friedrich last week in the case of Kevin Loftus, who was charged with unlawful presence and disrupting official business at the Capitol, among other offenses that have become the boilerplate set lodged against anyone who walked into the building that day without authorization.

The Justice Department will soon be in the awkward position of having to defend such deals, even as trials and lengthy sentences for those facing more serious charges could be a year or more away. [my emphasis]

Politico makes this claim even though at least some of the expected pleas may be cooperation agreements. For example, Ryan Samsel — who breached the west side of the Capitol in coordination with Proud Boys Dominic Pezzola and William Pepe, knocking out a cop along the way — asked for a continuance to discuss a plea. One of the main Oath Keeper prosecutors, Ahmed Baset, asked for a continuance before indicting Oath Keeper associate Jon Schaffer, who was among the worst treated defendants and who agreed to the continuance in spite of remaining in pre-trial detention. Kash Kelly, currently charged with trespassing but also someone raised in discussions between Proud Boys affiliate James Sullivan and Rudy Giuliani, got a continuance to discuss a plea. Bryan Betancur, a Proud Boy who got jailed for a probation violation after he lied to his probation officer to attend the event, also got a continuance to discuss a plea to resolve his trespassing charges. The aforementioned Riley Williams, who was charged with obstructing the vote count and stealing a laptop from Nancy Pelosi, was filmed directing movement inside the Capitol, and has ties with Nick Fuentes, also got a continuance to discuss pleading before indictment. All five of these people likely have information that would be of use to prosecutors. All could limit their prison time (which would likely be significant for Samsel, who is accused of assault, played a key role in the insurrection, and has a criminal record) by cooperating with prosecutors. If any of these people sign plea deals — especially Samsel — it will likely provide new insight into how the conspiracy worked. Even with a plea deal, Samsel may still face a stiff sentence.

In other places, Politico conflates the discussions about the fate of misdemeanor defendants with discussions about detention (which prosecutors have only requested with a few accused trespassers), discussions about discovery, and Speedy Trial, all different things, many more urgent issues for misdemeanor defendants not included among those the story is purportedly about.

After I went on a rant about this story on Twitter, Gerstein defended the story by saying that people (none of whom were quoted in the story) seem to be surprised.

I agree with Gerstein that people have certain expectations. But that was clear before the end end of January. The record laid out here shows that such expectations did not come from Garland or Biden. Even Sherwin, with his totally inappropriate 60 Minutes interview, also explained from the start that DOJ was arresting the low hanging fruit at first while further investigating more serious suspects.

The fault, instead, lies with journalists, myself and these Politico journalists included, for not consistently and repeatedly explaining the various different roles people played on January 6, including that there were a number — though currently a shrinking fraction of the total set of defendants — who neither pre-meditated any effort to stop the vote count nor assaulted cops. I have tried to engage in this nuance (I included a list of such posts below), but given the sheer amount of court filings, much of the focus is currently on the militia conspiracies, suggesting a gravity that the MAGA tourists don’t merit. But in this article, rather than simply laying out the full range of defendants, describing how the MAGA Tourists played a key role in the success of the more serious conspirators (explicitly so for the Proud Boys, who talked about getting “normies” to do stuff they otherwise wouldn’t have done), describing how violence spread among participants and often as not among people who aren’t militia members, this Politico piece further distorts the record, not least by using this subset of “MAGA Tourists” — calling them “many” even though they represent just a quarter of defendants who have been formally charged — to stand in for the larger investigation, while minimizing the import of those charged with obstruction (likening that role to a CodePink interruption of a congressional hearing) because, evidence shows, they premeditated an attempt to undermine the election outcome.

So even while the piece describes how both judges and prosecutors understand that the mob as a whole posed a grave threat while some individual defendants did no more than provide cover for the more dangerous defendants (and many of the DC judges presiding over these cases have made such comments), Politico claims that there’s some embarrassment to this, including some kind of political risk for Biden.

Judges are also attempting to reckon with separating the individual actions of rioters from the collective threat of the mob, which they have noted helped inspire and provide cover for violent assaults, property destruction and increased the overall terror and danger of the assorted crimes committed.

That reckoning is coming sooner rather than later, lawyers say, putting prosecutors in the position of wrist-slapping many participants in the riot despite framing the crimes as part of an insurrection that presented a grave threat to American democracy.

If the MAGA tourists provided cover and helped overwhelm cops, thereby serving a useful role in the plans of those who had a more nefarious and organized purpose, then that’s the story that should be told, not some kind of both-sides political spin, particularly one that pits Biden’s claims about the seriousness of this on the footing as Trump’s outright lies about it. In spite of the overwhelming number of defendants, the record shows, DOJ is still assessing each one on the merits, which is what should happen. Declaring that politically embarrassing is an abdication of fair reporting on the legal system.

I believe DOJ has gotten it wrong, in both directions, in some cases. In addition to those listed above, I think DOJ has gone too harshly on some people who have openly supported far right, even Nazi views. But I also think DOJ has only considered whether militia members were members of premeditated conspiracies, focusing less on localized activist networks that have been implicated in violent (often anti-mask) pro-Trump actions in the past, taken on leadership roles at the riot, and engaged in ongoing communications about plans to shut down the vote, just like militias did. I think DOJ hasn’t come to grips with the organizational import of QAnon even while arguing that individual adherents of the cult must be jailed because they are delusional. And until DOJ decides how it will treat Trump’s actions and those of some close associates — something they likely cannot do without more investigation and cooperation deals from key participants — parts of this investigation will remain unsettled.

There are definitely things DOJ has reason to be embarrassed about: Gerstein has written more than any journalist about the unforgivable delays in moving defendants around the country and getting them arraigned. This piece also focuses on one of the handful of misdemeanor defendants who has been detained since being charged. While I understand the complexity of an investigation in which so much of the evidence — both exculpatory and inculpatory — remains in the hands of participants, defendants have a right to complain about the delay, especially those in detention. Defendants — particularly those in detention — are entitled to a Speedy Trial, even if DOJ moved too quickly to arrest them. While many of these things were exacerbated by COVID, they also largely arise from a decision to arrest first on those trespassing charges, and investigate later (which also has led to more defendants being charged with obstruction after the fact).

But none of those things have to do with Biden or Garland’s views about the investigation, or even the prosecutors who made decisions that created some of these problems in the first place (in part, probably, to avoid their own embarrassment at missing all warning signs, in part because they hadn’t investigated these threats aggressively enough and so had to make mass arrests to mitigate any immediate follow-on threats).

In short, this piece is an (uncharacteristic) mess, shoehorning complexity into a simplistic claim of political conflict, one inventing embarrassment out of thin air for Biden. If Politico has evidence that this wasn’t an unprecedented disruption to Congress, one that could have had a far worse outcome, including a threat to our democracy, or that this right wing violence is less of a threat than FBI says it is, by all means they should present that. At the same time, they can reveal the identity of the pipe bomber and the role (if any) that person played in the plot, without which no one can claim to actually know how serious this was.

Until then, they and all experienced DOJ beat reporters would be far better off by simply laying out a description of the different kinds of defendants we’re seeing, the different roles they played in disrupting the vote count and assaulting or undermining law enforcement, and explaining how those defendants are the same or different from defendants that have gone before them, on a spectrum of severity that stretches from CodePink to ISIS terrorists.

If people are going to be surprised when the subset of participants in January 6 who engaged in non-violent civil disobedience are treated as misdemeanor offenders, it’s not Joe Biden’s fault. It is a failure of journalism, my own included, for not making that more clear starting in January and reiterating it since then.

Update: Meanwhile, Jon Schaffer just agreed to two more weeks in jail.

Update: Corrected Munchel’s arrest date, which was January 10.

Update: Christopher Kelly (no relation to Kash) is another person with a consent continuance to discuss what would almost certainly be a cooperation agreement. He drove to and from the insurrection with some Proud Boys.


Posts attempting to contextualize the investigation

Here are some past attempts I’ve made at explaining how the parts of the January 6 investigation fit together:

Were Proud Boys Using Livestream for Command and Control … and Other Operational Questions

Mapping out both the four charged conspiracy indictments against the Proud Boys as well as some — not all — of those with links to the groups who have not been included in the conspiracy indictments, has raised specific questions for me about how the Proud Boys operated that day and how they’re being prosecuted.

Were the Proud Boys using livestreams for command and control?

I’ve had this question more generally: whether someone offsite from the Capitol was providing Command and Control guidance for the assault on the Capitol. But the new “Leadership conspiracy” indictment against Ethan Nordean and Joe Biggs mentions that Gabriel Garcia — along with Joshua Pruitt — were among those who charged on the Capitol in the first wave, along with Dominic Pezzola.

That, by itself, makes me wonder if DOJ is going to expand that “Front Door” conspiracy to include Garcia and Pruitt.

But the content of Garcia’s charging document raises more questions for me.

Garcia is a former Army Captain, so one of the higher ranking former veterans among the Proud Boy defendants. He may have been IDed by what we now know was a request that Facebook provide the IDs associated with all the livestream video uploaded during the insurrection from inside the Capitol (indeed, it was Garcia’s complaint that first led me to suspect the FBI had used one).

Based on information provided by Facebook, Facebook User ID (“UID”) 100000183142825 has a Facebook account under the name “GABRIEL GARCIA.” GARCIA uploaded to his Facebook account at least two “Facebook live” videos taken inside of the Capitol building on January 6, 2021. Additionally, GARCIA uploaded at least one video before entering the Capitol building.

[snip]

In the video, GARCIA is walking east on Constitution Avenue towards the Capitol building with a large group of people. 2

Approximately 20 minutes later, at 19:19:08 UTC, or 02:19pm, GARCIA uploaded to Facebook a video filmed from inside the Capitol building:

If you were following Garcia’s livestreams in real time — even from a remote location — you would have visibility on what was going on inside almost immediately after the first group of the Proud Boys breached the Capitol.

In a later livestream, Garcia narrated what happened in the minutes after the Proud Boys had breached the Capitol.

GARCIA states, “We just went ahead and stormed the Capitol. It’s about to get ugly.” Around him, a large crowd chants, “Our house!”

Then, as a standoff with some cops ensued, Garcia filmed himself describing, tactically, what was happening, and also making suggestions to escalate violence that were heeded by those around him.

At minute 1:34, a man tries to run through the line of USCP officers. The officers respond with force, which prompts GARCIA to shout, “You fucking traitors! You fucking traitors! Fuck you!” As the USCP officers try to maintain positive control of the man that just rushed the police line, GARCIA yells, “grab him!” seemingly instructing the individuals around him to retrieve the man from USCP officers. GARCIA is holding a large American flag, which he drops into the skirmish in an apparent attempt to assist the individuals who are struggling with the USCP officers.

USCP officers maintain control of the line, holding out their arms to keep the crowd from advancing. At least one USCP officer deploys an asp. GARCIA turns the camera on himself and offers tactical observations regarding the standoff. [my emphasis]

Garcia’s livestream was such that you would obtain crowd size estimates from it, as well as specific names of officers on the front line, as well as instructions to “keep ’em coming,” seemingly asking for more bodies for this confrontation.

At minute 3:26, GARCIA, who is still in extremely close proximity to the USCP officer line again yells, “Fucking traitors!” He then joins the crowd chanting “Our house!” At minute 3:38, GARCIA states, “You ain’t stopping a million of us.” He then turns the camera to the crowd behind him and says, “Keep ‘em coming. Keep ‘em coming. Storm this shit.” GARCIA chants with the crowd, “USA!”

Soon after, GARCIA stops chanting and begins speaking off camera with someone near him. At minute 4:28, GARCIA says, “do you want water?” Though unclear, GARCIA seems to be asking the person with whom he is speaking. GARCIA is so close to an officer that, as the camera shifts, the only images captured are those of the officer’s chest and badge. [my emphasis]

Remarkably, Garcia filmed himself successfully ordering the rioters to hold the line — which they do — and then filmed them charging the police.

GARCIA yells, “Back up! Hold the line!” Shortly thereafter, the crowd begins advancing, breaching the USCP officer line. GARCIA says, “Stop pushing.” The last moments captured in the video are of the crowd rushing the USCP officers.

In the arrest affidavit for the Kansas City Proud Boys, a footnote describes how Nicholas Ochs and Nicholas DeCarlo were similarly filming what was going on as the Kansas City Proud Boys successfully thwarted police efforts to shut down access to the tunnels.

Proud Boys Nicholas Ochs and Nicholas DeCarlo can be seen in the background recording the unlawful conduct with their phones and other devices.

While their arrest documents don’t show the two livestreaming on Facebook (and Ochs would later complain about the connectivity inside the Capitol), if they were livestreaming somewhere, it would mean live video of tactically important moments from the siege would have been available to someone outside the Capitol or even someone watching more remotely, from a hotel room or even Florida.

Certainly, Garcia’s stream would be operationally useful if someone were providing command and control remotely. Was someone?

Does DOJ now have a list of all the teams from the Telegram channels?

The latest detention motions for Ethan Nordean and Joe Biggs (as well as the Leadership Conspiracy indictment) describe the process of divvying up the Proud Boys in attendance into teams, which process involves an unindicted co-conspirator who presumably is cooperating.

January 4, 8:20 PM, unindicted co-conspirator: “We had originally planned on breaking the guys into teams. Let’s start divying them up and getting baofeng channels picked out.”

January 5, 9:30 to 9:32 AM, Biggs: “What are the teams. I keep hearing team [sic] are picked already.” A few minutes later, [Biggs] stated “Who are we going to be with. I have guys with me in other chats saying teams are being put together.”

January 5, 9:17 to 9:20 PM, Biggs: “We just had a meeting woth [sic] a lot of guys. Info should be coming out” … “I was able to rally everyone here together who came where I said” … “We have a plan. I’m with [Nordean]. [my emphasis]

The replication of these Telegram chats, from two different channels, stops at 10AM on January 6 (they presumably continued after that time, but we know that Nordean’s phone was turned off during the day).

That suggests DOJ is likely to know what the various teams were and who led them. There were 60 people on the participants’ Telegram channel from that day, which means they may have a lot more teams to indict.

Who paid for the vans from Florida to DC?

The detention memo for Christopher Worrell, a Proud Boy who sprayed law enforcement with pepper spray, reveals that he and his girlfriend traveled to DC on vans paid for by someone else and stayed in hotels also paid for by someone else.

According to Worrell’s live-in girlfriend, who was interviewed by law enforcement on March 12, 2021, she and Worrell traveled to Washington D.C. in the days leading up to January 6, 2021, with other Proud Boys in vans paid for by another individual. Their hotel rooms were also paid for by another individual.

Particularly given that these vans were from Florida — where Tarrio, Biggs, and the key figures from the Oath Keepers all hung out (and hung out with Roger Stone) — the person that paid for these things may be on the hook for any conspiracy ultimately charged as a whole.

What kind of cooperation will DOJ get from the Front Door co-conspirators?

As of right now, just Dominic Pezzola and William Pepe are charged in what I call the “Front Door” conspiracy — the group of people who first breached the Capitol on the west side of the building. As noted above, DOJ itself identified Garcia and Pruitt to have some tie to this group (which makes me wonder if an expanded conspiracy obtained Friday will be released before I’m done with this post!).

But DOJ has not included Robert Gieswein or Ryan Samsel, who were also part of this initial assault. Neither is described as a Proud Boy in their charging documents, but both were with the Proud Boys before the operation. Both men are also on the hook for fairly serious assault charges (a cop that Samsel pushed over got a concussion and Gieswein brought a bat he used). Samsel has not been indicted and the joint request for a continuance (filed way back on February 17) explaining why explicitly states the two sides are seeking a “resolution,” (that is, a plea deal).

The government and counsel for the defendant have conferred, and are continuing to communicate in an effort to resolve this matter.

As to Gieswein, he has been indicted. But his docket has none of the proceedings that cases moving towards trial would have, such as a motion for a protective order (though given the delays on PACER postings that doesn’t definitely mean anything). And well after his magistrate docket in Colorado was closed, he submitted several sealed filings to it.

If I were someone that the government had dead to rights with not just brutal assault, but assault that was tactically important to the success of the entire operation, particularly if I had a criminal record that would add to prison time at sentencing (as Samsel does), I would sure want to help prosecutors assign some responsibility for those assaults to those who guided my actions on that day. Thus far, assault is not included in any of the conspiracy indictments (it is individually charged against Pezzola and a threatened assault was charged against William Chrestman), but if it were, it would raise the stakes of them significantly.

I’m also interested in the case of Chris Kelly. He’s not a Proud Boy. But in advance of his trip, he made it public that he was traveling to DC from NY with some members of the Proud Boys.

I’ll be with ex NYPD and some proud boys. This will be the most historic event of my life.

Kelly also made it clear the NYPD officer was his brother.

The Kelly Facebook Account also shows on January 2, 2021 KELLY messaged another user and stated, “Me and [NAME] plus a couple of others are headed down the 5th and staying 2 nights. Ill be frequency 462.662 on a ham radio if cell service goes down.” Public records databases also revealed Christopher M Kelly has a brother (“S1”) of New City, New York with the same first name used in the above statement. New York City Police Department records confirm S1 is a retired police officer. Based on this statement, and the statement above about traveling with “ex NYPD and some proud boys” your affiant believes that this comment indicated that KELLY planned to travel to Washington, D.C. with S1.

We still don’t know who a cooperating witness against Pezzola and Pepe is, who described to the FBI, almost immediately, a conversation promising that the Proud Boys would have killed Mike Pence had they found him that day. Pezzola had suspected that it was the guy who first recruited him into the Proud Boys and further speculated the conversation reported by the witness occurred on the trip home (which would help to explain how Pepe, also from NY, got included in conspiracy charges with Pezzola). That is, Pezzola believed that the cooperating witness must have been in a car with him from DC to NY.

But the government revealed that they are not prosecuting this cooperating witness.

The defendant speculates that W-1 is a “cooperating witness” with deeper ties to the Proud Boys than the defendant. The defense is incorrect. W-1 has not been charged with a crime in connection with the events of January 6, 2021, and the government is unaware of any affiliation between W-1 and the Proud Boys or any indication that W-1 knew the defendant prior to January 5, 2021.

Kelly can’t be that witness. He had already been charged at the time. But unless I missed his arrest, Kelly’s brother might be. And if his brother were cooperating (which would require honest testimony about what brother Chris had done), then it would raise the chances that Chris Kelly would be too. And why not? If I had traveled to DC with the people who initiated the entire insurrection, I’d want to make damned clear that I wasn’t part of that. Like Samsel, Kelly has not been indicted (publicly) yet.

For some time, the government had been saying they weren’t prepared to make plea deals yet. The inclusion of Co-Conspirator 1 in the Leadership indictment strongly suggests that’s done. And if Samsel and the government were discussing a plea over a month ago, you can be sure he has already proffered testimony to the government.

So the government likely has some cooperators in the “Front Door” conspiracy. The question is only, how much?

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

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

Both may be true.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Most People Suspected of Assaulting Officers in the January 6 Attack Remain at Large

There continue to be efforts to make grand judgments about the January 6 insurrectionists base off a review of the ~207 people who have been charged federally thus far. In my opinion, that’s a mistaken effort, unless the analysis breaks the current arrestees up into groups, first by excluding the 100 or so people just charged with trespassing crimes, who will appropriately be treated as people who engaged in civil disobedience.

Of the rest, there are maybe 25 who are members of an identified militia group. But that group is just a fraction of the total numbers of militia members we should expect will be arrested, because anyone in the Capitol or who planned to halt the vote certification can be charged, and we know of the people who joined Jessica Watkins’ Oath Keepers’ formation, as well as a busload of others from North Carolina. Plus, there are at least 10 more Proud Boys — probably significantly more — identifiable from videos as active participants. In other words, the number of militia members will continue to grow.

There’s another set of people — like Zip Tie Guy (Eric Munchel) and his mother — not known to have ties to militia (though definitely friendly to them), but who took actions that DOJ seems to treat more seriously. So, too, are the people — many of them women — who directed and instigated the crowd.

But there are another two sets of people that the FBI is clearly pursuing, of whom just a fraction have been arrested and identified so far. One is the group of people wanted for assaulting the media (AOM in the FBI’s wanted pictures), which is reportedly being led by a special group at DOJ. There are about 27 people identified in this group right now, none of whom have yet been arrested).

A more obvious one are people who’ve assaulted cops (just three of whom so far have ties to militia groups), identified by AFO at the FBI site. Multiple reports say that around 139 cops were assaulted on January 6. Just 26 people have been charged with either 18 USC 111 for assaulting a cop, or in closely related charges. Meanwhile, there are roughly 134 BOLO images of people who are suspected of assaulting cops, meaning there may be over 100 people suspected of assaulting cops on January 6 at large right now. All told, they would make up over a third of Federal suspects, yet most haven’t been arrested yet.

Here’s my running list of the people who, as of 2/22, had been charged with intimidating or assaulting police. I’ve also tracked how the FBI found them — whether by a tip based off Social Media, a law enforcement tip (this group includes several felons), those FBI BOLO posters, or some other means.

  1. Daniel Page Adams, whose arrest affidavit describes engaging in a “direct struggle with [unnamed] law enforcement officers” (his cousin, Cody Connell, described the exchange as a “civil war”). Tip SM
  2. Zachary Alam, who pushed cops around as he was trying to break into the Speaker’s Lobby. BOLO 79
  3. Wilmar Alvarado, who pushed cops in the mob trying to get in from the West Terrace. BOLO 65
  4. David Blair, who poked a cop with a lacrosse stick with a Confederate flag attached.
  5. Matthew Caspel, who was filmed charging the National Guard. Tip SM
  6. William Chrestman, who is accused of threatening a cop as Proud Boys pushed their way past the original line of defense (charged with 18 USC 115). NM
  7. Bruno Cua, who was filmed shoving a cop to be able to get into the Senate. Tip LE
  8. Nathan DeGrave, whom security cameras caught threatening to fight cops. Network Sandlin
  9. Daniel Egdvedt, a large man who took swipes and grabbed at several officers as they tried to remove him from the Capitol. BOLO 76
  10. Scott Fairlamb, who was caught in multiple videos shoving and punching officers (one who whom is identified but not named); Cori Bush has said she was threatened by him last summer. Tips, including SM
  11. Kyle Fitzsimons, who charged officers guarding the doorway of the Capitol. BOLO 139
  12. Michael Foy, a former Marine who was caught on multiple videos beating multiple cops with a hockey stick. Tip SM
  13. Robert Giswein, who appears to have ties to the Proud Boys and used a bat to beat cops. NM
  14. Alex Harkrider, who after being filmed fighting with police at the door of the Capitol, posted a picture with a crowbar labeled, “weapon;” he was charged with abetting Ryan Nichols’ assault. Tip SM
  15. Emanuel Jackson, whom videos caught punching one officer, and others show beating multiple officers with a metal baseball bat. BOLO 31
  16. Douglas Jensen, the QAnon who chased Officer Goodman up the stairs, got charged with resisting him.
  17. Taylor Johnatakis, charged with 111.
  18. Chad Jones, who used a Trump flag to break the glass in the Speaker’s Lobby door just before Ashli Babbitt was shot and may have intimidated three officers who were pursuing that group. Tip NM
  19. Vitali Gossjankowski, who was interviewed about whether he had tased MPD officer Michael Fanone, causing a heart attack; instead he was charged with tasing CPD officer MM (BOLO 98 — with a second one mentioned)
  20. Edward Jacob Lang, who identified himself in a screen cap of a violent mob attacking cops and who was filmed slamming a riot shield into police and later fighting them with a red baseball bat. Tip SM
  21. Mark Jefferson Leffingwell, whom a Capitol Police officer described in an affidavit punching him. Onsite arrest
  22. Joshua Lollar, who described fighting cops and was caught in pictures showing himself in the front lines confronting cops. Tip SM
  23. Michael Lopatic, who allegedly assaulted some cops with Stager and Sabol, then took a BWC to hide the assault. BOLO 133
  24. Patrick Edward McCaughey III, who was filmed crushing MPD Officer Daniel Hodges in one of the doors to the Capitol. BOLO 62
  25. Jonathan Mellis, who used some kind of stick to try to jab and beat police. Tip SM
  26. Matthew Ryan Miller, who released fire extinguisher in close quarters. Tip SM
  27. Aaron Mostofsky, possibly for stripping a cop of his or her armored vest and riot shield. NM
  28. Ryan Nichols, who was filmed wielding a crowbar and yelling, “This is not a peaceful protest,” then spraying pepper spray against police trying to prevent entry to the Capitol. Tip SM
  29. Jose Padilla, who shoved cops at a barricade, then helped use a Donald Trump sign as a battering ram against them. Tip SM
  30. Dominic Pezzola, a Proud Boy who stole a shield from cops. NM (BOLO 43)
  31. Jeffrey Sabol, helped drag a cop from the Capitol and beat him while prone. LE arrest (erratic driving)
  32. Ryan Samsel, who set off the riot by giving a cop a concussion; he appears to have coordinated with Joe Biggs. BOLO 51 (though not IDed by BOLO)
  33. Robert Sanford, who was filmed hitting Capitol Police Officer William Young on the head with a fire extinguisher. Tip NM
  34. Ronald Sandlin, who tried to wrestle cops to keep the door to the Senate open. MPD tip
  35. Peter Schwartz, a felon who maced several cops. Tip NM (BOLO 120)
  36. Christian Secor, a UCLA self-described fascist who helped shove through some cops to break into the Capitol and then sat in the Senate chamber. Tip NM
  37. Barton Wade Shively, who pushed and shoved some police trying to get into the Capitol, punched another, then struck one of those same cops later and kicked another. BOLO 55
  38. Peter Francis Stager, who was involved in beating a prone cop with a flagpole. Tip SM
  39. Tristan Stevens, who fought cops with a shield and baton. Video
  40. Thomas Webster, who attacked a cop with a flagpole (BOLO 145)

One reason I made this effort was to show that many of these people were identified via other means, and really a big number of people remain on the FBI’s BOLO list.

Unsurprisingly, more people on this list have tried to destroy evidence or flee, meaning it will likely take more time to find them all. There’s also reason to believe that the FBI would prefer to wait to charge these people until they’ve shored up their case.

There are a few more cases that were originally charged as 18 USC 231 that I suspect may get charged as 111 after indictment (which has happened with DeGrave, Sandlin, and Miller), including these.

Craig Bingert (BOLO 105)

Hughes brothers (BOLO 42 and others)

Here are some other notable arrests for which the FBI released a BOLO. Note that the first 30 or so of those posters weren’t targeted to a particular crime, but some — like bullhorn lady Rachel Powell — were identified as AFO in their BOLO but not charged that way.

Joshua Black (BOLO 6)

Steve Malonado (BOLO 20)

William Pepe (BOLO 4)

Matthew Perna (BOLO 73)

Rachel Powell (BOLO 110)

Kevin Seefriend (BOLO 30)

Joshua Wagner (BOLO 34)

Some Key Gaps in the January 6 Story [Updated]

DOJ continues to roll out arrests of people involved in the January 6 coup attempt.

But there are some obvious gaps in the (public) story so far.

Arrests relating to over 100 police assaults

In a filing submitted over the weekend, the government asserted that 139 cops were assaulted during the insurrection.

In the course of the insurrection, approximately 81 Capitol Police and 58 MPD officers were assaulted,

In its website tracking the people arrested so far, DOJ describes assault charges being filed against 12 people (updated on 2/1 to total 17 people):

  1. Daniel Page Adams, whose arrest affidavit describes engaging in a “direct struggle with [unnamed] law enforcement officers” (his cousin, Cody Connell, described the exchange as a “civil war”).
  2. Zachary Alam, who pushed cops around as he was trying to break into the Speaker’s Lobby.
  3. Matthew Caspel, who charged the National Guard.
  4. Scott Fairlamb, who was caught in multiple videos shoving and punching officers (one who whom is identified but not named); Cori Bush has said she was threatened by him last summer.
  5. Kyle Fitzsimons, who charged officers guarding the doorway of the Capitol.
  6. Alex Harkrider, who after being filmed fighting with police at the door of the Capitol, posted a picture with a crowbar labeled, “weapon;” he was charged with abetting Ryan Nichols’ assault.
  7. Michael Foy, a former Marine who was caught on multiple videos beating multiple cops with a hockey stick.
  8. Robert Giswein, who appears to have ties to the Proud Boys and used a bat to beat cops.
  9. Emanuel Jackson, whom videos caught punching one officer, and others show beating multiple officers with a metal baseball bat.
  10. Chad Jones, who used a Trump flag to break the glass in the Speaker’s Lobby door just before Ashli Babbitt was shot and may have intimidated three officers who were pursuing that group.
  11. Edward Jacob Lang, who identified himself in a screen cap of a violent mob attacking cops and who was filmed slamming a riot shield into police and later fighting them with a red baseball bat.
  12. Mark Jefferson Leffingwell, whom a Capitol Police officer described in an affidavit punching him.
  13. Patrick Edward McCaughey III, who was filmed crushing MPD Officer Daniel Hodges in one of the doors to the Capitol.
  14. Ryan Nichols, who was filmed wielding a crowbar and yelling, “This is not a peaceful protest,” then spraying pepper spray against police trying to prevent entry to the Capitol.
  15. Dominic Pezzola, a Proud Boy who stole a shield from cops.
  16. Ryan Samsel, who set off the riot by giving a cop a concussion; he appears to have coordinated with Joe Biggs.
  17. Robert Sanford, who was filmed hitting Capitol Police Officer William Young on the head with a fire extinguisher.
  18. Peter Schwartz, a felon who maced several cops.
  19. Barton Wade Shively, who pushed and shoved some police trying to get into the Capitol, punched another, then struck one of those same cops later and kicked another.

While a number of these men — Fairlamb, Jackson, Nichols, Shively, among others — allegedly assaulted multiple cops, that’s still far below the total of 139 alleged assaults.

That says the FBI is still looking for a significant number of people in assaults on police. Over the weekend, the FBI released BOLO posters showing 12 other men believed to have assaulted police — including two targeting individuals specifically.

The murder of Brian Sicknick

Of particular note, while the FBI has released a BOLO poster focused on the men who assaulted MPD Officer Michael Fanone, no such post has identified suspects as those suspected of killing Brian Sicknick (though note that Robert Sanford did assault a different officer with a fire extinguisher). There are many possible explanations for why his murder might be treated differently (not least that the culprits are more likely to flee).

But we haven’t seen anything to suggest who assaulted Sicknick badly enough to lead to his death.

The DNC and RNC bomber

On January 21, the FBI increased their reward for information leading to the guy believed to have planted pipe bombs at the DNC and RNC. But there’s no sign they’ve found the guy yet.

Rudy’s interlocutors

On January 15, Rudy Giuliani posted texts involving “James Sullivan” claiming he was going to blame the riot on “John,” that he had gotten “my agent out of trouble along with three other” Utahans, and mentioning “Kash.”

“John” is James’ brother, John Sullivan, someone long ago IDed by leftist activists as a provocateur who had been charged two days earlier. He was arrested on January 14, but bailed the next day.

“Kash,” is Kash Lee Kelly, whose parole officer IDed him at the scene. His bail in the gang-related drug conviction he was awaiting sentencing for in IL was revoked on January 14.

John Sullivan is the only Utahan that GWU identifies as being from Utah, meaning the three Utahans, in addition to James Sullivan, he claims to have gotten out of trouble thus far are (publicly at least) still not in trouble. No one yet arrested is identifiable as his “agent,” either.

That means, key people who might be a pivot between the rioters and Rudy Giuliani, who was coordinating events in Congress with an eye to how much time the rioters would give him, remain (again, publicly at least) at large.

There are around 73 sealed cases in the DC District, many of which probably having nothing to do with the January 6 insurrection and some of which are surely defendants already publicly charged whose cases have not yet been unsealed in the DC docket. The reasons for unsealing could vary — though the most common would be that someone hasn’t been arrested yet). Still, some of these sealed cases may be people who’ve already moved to cooperate.

Update, 2/1: I’ve updated the list of those charged with assault.