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OATH KEEPER SEDITIOUS CONSPIRACY CONVICTIONS WERE THE BATTLE; APPEALS MAY BE WAR

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From emptywheel: Thanks to past support from readers, we can bring you Brandi’s preview of sedition appeals. To support Brandi’s larger book project on sedition, you can donate at the link here.

With the Oath Keepers’ historic seditious conspiracy trials now in the rearview, a new fight with significant implications is on the horizon. Almost all of the defendants—including and perhaps most unsurprisingly of all, Oath Keeper founder Elmer Stewart Rhodes are appealing their convictions.

Between two respective Oath Keeper trials involving seditious conspiracy that played out late last year and early into this one, prosecutors and defense attorneys spent an excess of 16 weeks duking it out in court, poring over mountains of evidence and examining dozens of witnesses including cooperating Oath Keepers. The Proud Boys seditious conspiracy trial stretched for more than 60 days and with verdicts reached in May, sentencing is expected in late August and early September. 

It is often repeated and rightfully so: seditious conspiracy is one of the gravest charges that can be brought in the U.S., and it is very rarely prosecuted. When it is, it is not often a successful endeavor. The bar is high and narrow given that the line between First Amendment-protected activities and sedition can be razor-thin.

The U.S. has endured major setbacks in prosecuting sedition cases before, so with two sets of juries delivering guilty verdicts on this count for most of the Oath Keepers indicted on it, (and then later for the Proud Boys), these were huge victories for the Justice Department. 

Huge but tempered.

Tempered because a conviction can also merely mark the end of one chapter and the start of another very tricky one once appeals are in the mix.

In a recent interview with NPR analyzing the Oath Keepers sedition verdicts, extremism expert and author Kathleen Belew pointed out that seditious conspiracy prosecutions can be a useful tool to combat extremist violence in society. She argues that it sends the message to extremist and militia groups, or other groups who use force as a movement, that they won’t be treated with kid gloves or prosecuted as lone actors. The risk of prosecuting extremists includes violent retaliation but as Belew also noted, these same prosecutions have the power to rouse people to the realization that their conduct is risky and potentially quite expensive to cope with legally. 

Perhaps most eloquently, Belew underlined that the only way to tamp down on extremism is to confront it, not look away from it.  

Recently, a report by The Washington Post suggested none of the sedition charges may have even come to pass if a reported skittishness to bring them had persisted at upper levels of the Justice Department at the outset of the Jan. 6 investigations. To read it, it would seem that many felt sedition was a bridge much too far or too risky politically. Marcy picked that WaPo report apart already and exposed key gaps and blind spots in the story so I won’t belabor those points here. 

I will, however, belabor others. 

First, Marcy’s unwinding of the Post story isn’t just context for context’s sake nor is it to browbeat a reporter like Carol Leonnig who is esteemed for good reason. (I have a lot of respect for her work and that of others at the Post, for the record). But Marcy does provide useful context by raising questions that, it would appear, the Washington Post seemed to miss or perhaps failed to appreciate when relying on its sources and then sharing those findings with a public largely unversed in the nuances of Jan. 6 and its related investigations. 

In the same way that Belew suggests sedition trials and convictions can act as an important deterrent to possible criminal extremists, it would seem just as vital that non-criminal, non-seditious Americans accurately grasp these serious proceedings, too. Being empowered with the ability to cut through the bullshit being spun by the far right, or Jan. 6 conspiracy theorists, hinges considerably on having a clear understanding, or at least a thorough consideration, of the historical evidence at the trials themselves.  

For my purposes, perhaps most striking in that Post piece was a detail that later needed to be corrected. In the first iteration of its story, the Post incorrectly stated that the Justice Department attempted to prosecute those involved in the kidnapping plot of Michigan governor Gretchen Whitmer with the sedition statute. 

But they did not use it in that case; so the comparison wasn’t just incorrect but it wasn’t apt at its inception. What would be more apt would be to mention how prosecutors used it in the Hutaree Christian militia case from 2010. This is a critical distinction because the Hutaree case is deeply relevant as Oath Keepers appeals are underway. With the Hutaree militia, the judge acquitted the defendants of seditious conspiracy after the government closed its case. U.S. District Judge Victoria Roberts felt prosecutors had failed to sufficiently prove the militia members intended to forcibly resist the U.S. government. It was a just lot of vile talk, she found, but it didn’t rise to seditious conspiracy. 

I will broach more about this later in this piece but first, let’s return to some baseline details on the appeals in progress. 

OATH KEEPERS ON APPEAL 

At his sentencing in May, Rhodes puffed up his chest to deliver a self-aggrandizing diatribe extremely short on remorse and extraordinarily heavy on claims of political persecution by the U.S. government and the “weaponization” of free speech by the Justice Department. His attorneys said early into the trial that if they lost, an appeal would certainly follow. 

And it has. 

Rhodes’ lawyers, James Lee Bright and Phillip Linder, did not return a request for comment to emptywheel this week but for the moment, according to the docket at the U.S. Court of Appeals for the D.C. Circuit, Rhodes and almost all of his co-defendants from the first trial group including Kelly Meggs, Kenneth Harrelson, and Jessica Watkins, have consolidated their efforts to attempt an appeal.

Another batch of Oath Keepers tried, charged, and convicted of seditious conspiracy include Roberto Minuta, David Moerschel, Edward Vallejo, and Joseph Hackett. They were split off into a second trial group for logistical reasons. 

The only Oath Keepers convicted of seditious conspiracy as of Thursday who have yet to officially indicate whether they will appeal are Ed Vallejo and Joseph Hackett.

Vallejo’s attorney, Matthew Peed, wrote in an email to emptywheel this week that he felt it was “likely” his client would appeal. Hackett’s lawyer, Angie Halim, did not return multiple requests for comment. (Key to note: An appeal cannot be formally entered until a defendant’s final judgment makes it onto the docket and neither Vallejo nor Hackett’s final judgment has appeared yet.) 

Rhodes’ attorney Phil Linder told CBS recently he expects it will take months to craft an appeal and one can only assume the same would apply to Kelly Meggs’ attorney Stanley Woodward given the demands on his schedule of late. Woodward also represents Waltine Nauta, former President Donald Trump’s valet and alleged co-conspirator in the Mar-a-Lago classified documents case. Woodward also represents Ryan Samsel, a Jan. 6 defendant who figures prominently in most “fedsurrection” conspiracy theories and he represents Frederico “Freddie” Klein, a former Trump-era State Department official. Klein faces a number of charges including assaulting police on Jan. 6, and he goes to trial in October. Woodward will also represent Trump’s former trade adviser Peter Navarro once Navarro’s trial for criminal contempt gets underway in September. Navarro, prosecutors say, defied a subpoena issued to him by the House Select Committee to Investigate the Jan. 6 Attack on the U.S. Capitol. 

Over the next 30 days, the Oath Keepers will continue to get their houses in order. Rhodes’ lawyers, according to a recent letter from the court clerk, have not yet been admitted to practice before the appeals court in but they have until July 12 to get admitted. 

 THE DEVIL IN THE DETAILS

After the massive unraveling of evidence and testimony at trial, it is hard to imagine a scenario in which an appeal, especially one from Rhodes, will contain, well, anything particularly novel. But the far more important factor will be whether his appeal will convince an appellate judge that his speech was not seditious.

Another one of his attorneys, Ed Tarpley, said after Rhodes was sentenced to 18 years in prison that the former far-right leader wouldn’t stop speaking up because it was a matter of principle. 

The Justice Department had “weaponized” the First Amendment and used Rhodes’ own words against him to secure a conviction, Tarpley said. 

Rhodes’ words were “used against him” technically speaking. But it wasn’t just his words that helped get him convicted though jurors did see mind-boggling amounts of evidence featuring his communications. 

They heard speeches and reviewed texts and phone calls as well as a recorded meeting where he called for revolution days after the 2020 election. He decried the election as unconstitutional and fraudulent and promoted disinformation to rile up his group or to entice them to act in concert with him. He directed Kelly Meggs, a Florida division leader, to coordinate operations in advance of the 6th and on the 6th. He oversaw the coordination of the gigantic weapons stash, or a quick reaction force (QRF) with the help of his co-defendants. The cache was set up at a hotel in Virginia, just over the Potomac River from the Capitol. Aware of the gun laws in D.C., Oath Keepers, from points all over the U.S., understood and received directions to drop their weapons at the QRF. Rhodes’ future co-defendant Ed Vallejo would stand by awaiting Rhodes’ orders to haul the weapons in if asked. 

The beginnings of Rhodes’ intent were aired out in trial courtesy of a recorded GoTo Meeting with fellow Oath Keepers on Nov. 9, 2020.. Rhodes didn’t mince words and in fact, his fury was so complete, he scared one Oath Keeper into eventually reporting the call to the authorities. 

They would have to fight to keep Trump in office and this wasn’t a metaphorical “fight.”

“Let’s make no illusion about what’s going on in this country. We’re very much in exactly the same spot that the founding fathers were in like March 1775. Now—and Patrick Henry was right. Nothing left but to fight. And that’s true for us too. We’re not getting out of this without a fight. There’s going to be a fight. But let’s just do it smart and let’s do it while President Trump is still Commander in Chief and let’s try to get him to do his duty and step up and do it,” Rhodes said. 

Trump would not urge his supporters to descend on D.C. until Dec. 19, but prosecutors demonstrated that the Oath Keepers’ seditious conspiracy didn’t simply or only start to exist once Trump called for the “wild” event. 

During that Nov. 9 call, Rhodes’ told members they would need to be willing to travel to Washington and prepare to war with “antifa.” This was something he explained had multiple benefits. 

If they were there to stop “antifa” from attacking Trump supporters, it would give Trump a reason to invoke the Insurrection Act and raise Oath Keepers to his side.

“I’m willing to sacrifice myself for that. Let’s start the fight there, OK? That would give President Trump what he needs frankly,” Rhodes said.

Getting Trump to invoke the Insurrection Act so the “fraudulent” election could be stopped was ideal for Rhodes and as the weeks after the election passed and Trump lost lawsuit after lawsuit challenging the results, his desperation grew. 

On Jan. 6, Rhodes never stepped foot inside the Capitol. He stalked its grounds as he communicated with Oath Keepers on site and just moments before Oath Keepers breached, cell phone data showed Rhodes had called Meggs in what prosecutors argued was an order to get inside the Capitol and plow ahead. Prosecutors said the defendants understood, even without it being said explicitly, that this was a means to stop Congress from doing its duty.  At trial, footage after this call in question appears to show Meggs entering the Capitol as if on cue. 

Rhodes wasn’t indicted for propagandizing. He wasn’t indicted for having an opinion contrary to fact. He wasn’t indicted for wanting Trump to be in office even after Trump lost the election and then lost dozens of lawsuits seeking to overturn the results.

Rhodes wasn’t indicted for writing public letters and posting them online urging Trump to invoke the Insurrection Act in order to stop the “fraudulent” election of Joe Biden, a man Rhodes proclaimed was a “puppet” for communist China. (For the record, Rhodes wrote two of these letters; one was published on Dec. 14 and another on Dec. 23, 2021.) 

And Rhodes certainly wasn’t indicted for merely traveling from Texas to D.C. on Jan. 6 to attend a rally with thousands of other people who showed up to support Trump’s Big Lie. 

Rhodes was charged and convicted of seditious conspiracy, obstructing an official proceeding, and tampering with evidence because his words, when coupled with his conduct and the conduct of the men he oversaw, far exceeded the protections the First Amendment has to offer. 

Rhodes didn’t simply oversee a bunch of loudmouth oafs hand-painting protest signs in a hotel in Virginia before sauntering over to the Capitol to chant outside of it peacefully. 

When he was en route to D.C. from Texas,  bank statements and receipts showed. Rhodes spent more than $10,000 on firearms and gear like sights, scopes, ammunition, and night vision equipment. On their return to Texas after the 6th, Rhodes didn’t stop spending. In fact, he spent at least another $30,000 on weapons and equipment. Jurors saw maps and cell extraction reports that showed how, when, and where Rhodes coordinated these purchases and communications. Jurors saw how Rhodes coordinated with Oath Keeper Joshua James while returning to Texas and how they worked together to collect firearms and tactical gear. And all the while, Rhodes angled to conceal his movements, using his then-girlfriend Kellye SoRelle as a cutout to communicate with Oath Keepers via text through her and her phone. It was revealed to jurors also that James, who pleaded guilty to seditious conspiracy, sent a message to Rhodes as late as Inauguration Day saying, “After this… if nothing happens, it’s Civil War 2.0.” 

When former Oath Keeper Terry Cummings, who traveled with other members to D.C. for the 6th, testified against Rhodes in court, he said not since his time in the military had he ever seen so many guns in one place. 

Rhodes’ defense hinged on the argument that Oath Keepers came to Washington merely to serve as a security force for Trump VIPs attending speeches or rallies. One of those VIPs was ratfucker Roger Stone. Oath Keepers Joshua James and Roberto Minuta were tasked to guard him. Yet they would leave Stone at the hotel and speed towards the Capitol on golf carts as soon as Rhodes called them to his side. Meanwhile, Stone hightailed it out of D.C. 

At other times, the defense claimed Oath Keepers came to Washington to provide medical support as needed. Defendant and former Army medic Jessica Watkins had medical training, that was true, but her defense was undercut by her own admission on the witness stand: She did impede police when she forced her way into the Capitol and pushed past them. 

At sentencing, she wept when she recalled memories of the police officer who was overrun thanks to her conduct.

It seemed at trial the defense’s goalposts shifted depending on which defendant was under questioning or how a witness performed. The disclosed purpose for amassing the weapons cache or going to the Capitol regularly shifted around its edges in the Rhodes trial, and so many stories simply didn’t hold up under the scrutiny of cross-examination or redirect.

Memorably, assistant U.S. Attorney Jeffrey Nestler remarked to jurors during closing arguments in the first Oath Keepers trial that for all the claims of Oath Keepers being an organized security force on Jan. 6,  not one defendant was licensed or insured to provide security services and no one held any contracts for these supposed clients. 

And if the evidence from before Jan. 6 or the day of didn’t sink him, what followed proved Rhodes wanted to overthrow a government where Joe Biden was its executive. On Jan. 10, 2021, while downtown D.C. was still bustling with National Guard left over to protect the Capitol and nearby federal buildings, Rhodes took a meeting in a parking lot in Texas with U.S. veteran Jason Alpers. 

Alpers testified that he had “indirect” ties to the Trump White House but no further description was offered in court. Alpers said he linked up with Rhodes through an associate of Allied Security Operations Group, the same group that led an “audit” of voting machines in Antrim County, Michigan. (Michigan, of course, was one of several battleground states where Trump’s lawyers, including Sidney Powell and others, claimed fraud was pervasive. Powell was sanctioned for her role in pursuing such baseless claims in the courts last week.)

The meeting was set so Rhodes could pass a message to Trump. Alpers would secretly record the exchange. Rhodes was furious. He wouldn’t condemn the violence on the 6th but he had other regrets.

If Trump was going to just let himself be removed illegally, Rhodes remarked, “then we should have brought rifles.”

“We could have fixed it right then and there,” he said on the recording before adding that he would “hang fucking [then Speaker of the House Nancy] Pelosi from the lamppost.”

Furious, he tapped out a message into Alpers’ phone because he expected Alpers would pass it along to his Trump contact. 

Trump would be killed by his enemies if he didn’t act now, Rhodes warned.

‘You must use the Insurrection Act… if you don’t, you and your family will be imprisoned or killed. You and your children will die in prison… you must do as Lincoln did. He arrested congressmen, state legislators and issued a warrant for SCOTUS Chief Justice Taney. Take command like Washington would… Go down in history as a savior of the Republic, not the man who surrendered it… I’m here for you and so are all of my men. We will come help if you need us,” Rhodes wrote. 

He claimed he had 40,000 Oath Keepers backing him and millions of others who felt as they did.

He added: “There’s gonna be combat here on U.S. soil no matter what” and warned that the Biden administration would “disarm us all,” if allowed to take office. 

The message was too extreme for Alpers to pass along. It didn’t help, the veteran testified, that Rhodes’ then-lover Kellye SoRelle, who was also there, was drunk. It put  Alpers off. It was all too unprofessional and his confidence was shaken. On cross-examination, Alpers said he delayed reporting the meeting to the FBI because he didn’t want to get involved any further. 

All of these elements are just slivers of what jurors heard in the weeks-long trial.

There were also several intense days where emotions ran high, including those where the parties started to dig into claims that Oath Keepers went to help Capitol Police after getting inside. 

Meggs, Harrelson, and Watkins attorneys insisted their clients “assisted” U.S. Capitol Police Officer Harry Dunn who was stationed outside then-House Speaker Nancy Pelosi’s office. Armed with a rifle, Dunn told jurors he knew it wouldn’t take much for someone to grab it off him and make a bad situation worse. He told Oath Keepers to leave, he told them they were hurting police; he told them police were “getting the shit kicked out of them.”

The Oath Keepers wouldn’t leave right away though, they hung around him a bit longer instead. When prosecutors asked Dunn on redirect at trial what would have helped him that day, the officer was succinct: if they left, or never come in, that would help. 

So, to review, here are the convictions from the Oath Keepers sedition cases. (It is worth noting that if Rhodes manages to pull off an appeal, he could also be resentenced.)

On seditious conspiracy:

  • Elmer Stewart Rhodes, Kelly Meggs, Roberto Minuta, David Moerschel, Joseph Hackett

On conspiracy to obstruct an official proceeding: 

  • Kelly Meggs, Jessica Watkins, Roberto Minuta, David Moerschell, Edward Vallejo, Joseph Hackett

On obstruction of an official proceeding: 

  • Elmer Stewart Rhodes, Kelly Meggs, Jessica Watkins, Kenneth Harrelson, Thomas Caldwell, Roberto Minuta, David Moerschel, Edward Vallejo

On conspiracy to prevent officials from discharging their duties: 

  • Kelly Meggs, Jessica Watkins, Kenneth Harrelson, David Moerschel, Edward Vallejo, Joseph Hackett

On tampering or destruction of evidence: 

  • Elmer Stewart Rhodes, Kelly Meggs, Kenneth Harrelson, Thomas Caldwell, Roberto Minuta, Joseph Hackett

Impeding officers during a civil disorder:

  •  Jessica Watkins

IS EVERYTHING OLD NEW AGAIN?

When the federal judge presiding over the Hutaree matter tossed all of the sedition charges against those defendants, she explained that prosecutors had failed to prove beyond a reasonable doubt that the Christian militia members took concrete steps to violently revolt against the federal government with the aid of weapons of mass destruction.

The Hutarees were recorded discussing how police were their enemies and how they wanted to kill them. They discussed how a war against the U.S. government was necessary, too. But Judge Victoria Brown ruled that a conspiracy required a specific plot or a knowing agreement to break the law or a knowing intent to join that effort. Guilt by association was not enough, she said, and neither was repugnant conversation.

A Hutaree defense attorney noted in an interview with The Guardian last October when the Oath Keepers went on trial, that when it came to the Hutaree militia, beyond a lack of a plan, there was also “no action taken.” Hutarees may have shared disdain for law enforcement, communications showed, but, he argued, it pretty much stopped there. 

After the sedition acquittals for the Hutarees in 2012, a law professor from Wayne State University noted to the New York Times that the outcome just went to show how difficult it is to prosecute cases involving groups engaged in political speech. The professor also noted how  Hutarees were “a fairly disorganized group” who may have “talked big” but didn’t seem to be doing much otherwise. 

At the Oath Keepers trial, the defense was insistent that because there was not a concrete plan laying out the Oath Keepers’ precise efforts up to, on, or after Jan. 6, the government’s case was overcharged and amounted to a gross infringement on their First Amendment rights. 

But neither Judge Mehta nor the jury believed that was the case for the Oath Keepers who were ultimately convicted of seditious conspiracy. At Rhodes’ sentencing, Judge Mehta was unequivocal on this point, telling Rhodes he posed an “ongoing peril to democracy.” 

He was the one giving orders, Mehta said. 

“He was the one organizing teams that day. He was the reason they were, in fact, in Washington, D.C. Oath Keepers wouldn’t have been there but for Stewart Rhodes, I don’t think anyone contends otherwise. He was the one who gave the order to go, and they went,” he said. 

When the jury was instructed before deliberations, they were told that a conspiracy was defined as two or more people trying to accomplish some unlawful purpose and in order to sustain a seditious conspiracy charge, they must agree that a defendant conspired with at least one other person to oppose the government by force to delay and impede it; or they reached an agreement to use force in the ordinary sense of the word; or simply that they contemplated using force while at least one defendant actually used it. 

The government had no burden, Mehta said, to prove beyond a reasonable doubt that there was an express agreement or an implied one. They just had to prove that the members of the conspiracy met, talked about unlawful objectives, and agreed to some of the details or what the means were by which objectives could be accomplished. The success of that aim was irrelevant. 

Jurors deliberated for three days in the Rhodes trial; jurors in the second trial group took just over a week to reach a verdict. The end results were a mixed bag of verdicts, suggesting that jurors meticulously reviewed each defendant’s conduct. 

Watkins was acquitted of sedition but convicted of conspiracy to obstruct a proceeding, obstructing an official proceeding, conspiracy to prevent officials from discharging their duties, and impeding officers during a civil disorder. She recruited Oath Keepers and coordinated with them to breach the building and disrupt police on Jan. 6, but the jury, in the end, wasn’t fully convinced her role was central to that of a seditious conspiracist. 

The bar to convict remained high even for someone who recorded themselves breaching the building while actively and repeatedly encouraging others to “push, push, push” because the police “can’t hold us.” Before sentencing her to 8.5 years, Judge Mehta remarked that no one would suggest she is Rhodes or even Kelly Meggs. 

“But your role in those events is more than that of a foot soldier. I think you can appreciate that,” he said. 

Will these words haunt an appeal to come? 

When sentencing Rhodes and Meggs, Judge Mehta was far harder on them than their co-defendants also convicted of seditious conspiracy. He handed down an 18-year sentence to Rhodes and 12 years to Meggs with terrorism enhancements applied. The maximum on seditious conspiracy alone is  20 years. Minuta was sentenced to just 4.5 years; Joseph Hackett to 3.5 years. Vallejo and Moerschel received just 3 years. And again, that would include all of the convictions weighed in. 

Mehta emphasized to Rhodes at his sentencing that there was no question he “took up arms and fomented a revolution” on Jan. 6.

“That’s what you did. Those aren’t my words. Those are yours,” Mehta said. “You are not a political prisoner, Mr. Rhodes. You are not here for your beliefs.”

Perhaps this encapsulates the very reason why it matters that the sedition charge was used instead of abandoned early on. The evidence would indicate this wasn’t merely a First Amendment matter. Perhaps it may have been easier for Rhodes or Meggs or other Oath Keepers charged and convicted of seditious conspiracy to wriggle out of an obstruction charge if the focus on sedition wasn’t also on the table to start. 

But whatever the case may be, that’s the recent past. And while important, there’s now an equally if not more important future to ponder just ahead. 

At a time when the U.S. is awash in far-right extremism; when the man who incited the insurrection on Jan. 6 is now twice-indicted yet still running for president and running on a vengeance platform; at a time when he and other right-wing politicians vow to pardon all Jan. 6 defendants if ever given power by the body politic to do it—it will matter what happens with these appeals. 

Will the Oath Keepers convicted of sedition appeal their sentences? Or will they appeal the conviction? Appealing the conviction would seem the likely route given Mehta’s light touch at sentencing for most. And as part of his tough-guy-patriot-against-the-Deep-State-routine, Rhodes has already said he’s willing to do prison time for his beliefs. An appeal on the conviction that could potentially humiliate the U.S. government would seem too tantalizing for a man like Stewart Rhodes to pass up. 

If terabytes of evidence weren’t enough, if hours and hours of video footage weren’t enough, if proclamations and concerted efforts to foment an armed rebellion live on television aren’t enough to maintain the Oath Keepers seditious conspiracy convictions, then one must wonder, what will happen if history repeats itself?

What Sedition Looks Like: Lots of Stewart Rhodes, but Key Uncharged Others

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When DOJ first unrolled the seditious conspiracy charges against Oath Keeper Stewart Rhodes and others on January 13, I noted that one goal of that indictment was to pressure those with the most important information to flip.

It worked.

Less than fifty days later, Joshua James pled guilty to seditious conspiracy and obstruction as part of a cooperation deal.

James’ statement of offense, as all statements of offense must, lays out the things DOJ would have used to prove not just the crimes charged, but the enhancements, which in James’ case includes the following for both the seditious conspiracy and obstruction charges:

Particularly because he’s the first to plead to the sedition charge, the government lays that out carefully, bookending the description of January 6 with an explanation of James’ intent both to obstruct the vote count and to attack the government.

James agreed to take part in a plan developed by Rhodes to stop the lawful transfer of presidential power by January 20, 2021, by deploying force to prevent, hinder, and delay the execution of the laws of the United States governing the transfer of presidential power. They used encrypted and private communications, equipped themselves with a variety of weapons, donned combat and tactical gear, and were prepared to answer Rhodes’s call to take up arms. James and others amassed firearms on the outskirts of Washington, D.C.—some distributed across hotels and “quick reaction force” (“QRF”) teams—and planned, if called upon, to use them in support of the plan to halt the lawful transfer of presidential power.

[snip]

In advance of and on January 6, 2021, James and others agreed to take part in the plan developed by Rhodes to use any means necessary, up to and including the use of force, to stop the lawful transfer of presidential power.

[snip]

James intended to use force and did, in fact, use force in the Capitol and when engaging in physical altercations with law enforcement, in order to prevent, hinder, and delay the execution of the laws governing the transfer of power. James corruptly obstructed, influenced, and impeded an official proceeding, that is, a proceeding before Congress, specifically, Congress’s certification of the Electoral College vote as set out in the Twelfth Amendment of the Constitution of the United States and 3 U.S.C. §§ 15-18.

In taking such actions, James intended to influence or affect the conduct of the United States government or to retaliate against the United States government. He accomplished this by intimidating and coercing government personnel who were participating in or supporting the Congressional proceeding, including Members of Congress, Congressional staff, and law enforcement officers with the Capitol Police and Metropolitan Police Department.

But much of the rest of the statement implicates others, making them more likely to plead, as well.

Most of the new detail in this statement describes actions of Stewart Rhodes, many of which James would be one of, or the only, witness to. That starts with the detail that, after James came out of the Capitol and then again days later, after Rhodes reviewed video of James’ fight with a cop, Rhodes expressed his approval of James’ actions.

After exiting the Capitol, James gathered with Rhodes and other co-conspirators approximately 100 feet from the Capitol, near the northeast corner of the building. Rhodes told James he was glad James and others had gone inside the Capitol.

[snip]

On January 8, 2021, James met with Rhodes and others at a restaurant in Alabama. There, James showed Rhodes a video of James’s physical altercation with law enforcement officers inside the Capitol on January 6, 2021.

DOJ will use this as evidence that Rhodes ratified the violence that James, at least, engaged in (and is proof that James always knew there was evidence of the confrontation with the cops, even though it took some time after James’ arrest for DOJ to find it).

There are a great many details in the statement about the immediate response after the riot. Almost immediately, it seems, Rhodes came to believe they were being pursued (DOJ is coy about whether he had reason to believe, which may prove interesting later). And so almost immediately, they left town.

At Rhodes’s instruction, James, Vallejo, and others met Rhodes that evening at a restaurant in Vienna, Virginia. Rhodes discussed saving “the Republic” by stopping the transfer of presidential power and began to make plans to oppose the Inauguration on January 20, 2021, including by having people open-carry firearms at state capitols around the country.

While at the restaurant, Rhodes and James came to believe that law enforcement was searching for Rhodes and others after their attack on the Capitol. The group immediately returned to their hotel, collected their belongings, and met at a nearby gas station. There, James saw what he estimated to be thousands of dollars’ worth of firearms, ammunition, and related equipment in Rhodes’s vehicle. Rhodes divvied up various firearms and other gear among James and others who occupied a total of three cars. Rhodes left his mobile phone with one person and departed with another person in that person’s car so that law enforcement could not locate and arrest him. The three cars departed in separate directions.

James returned to Alabama with some of Rhodes’s gear, including firearms and other tactical equipment.

This explains the behavior of some others, such as Graydon Young’s decision to drive back to Florida from his sister’s house in North Carolina rather than flying.

Rhodes continued to provide James orders to obscure his actions.

Rhodes expressed gratitude for James’s actions and told James to alter his physical appearance to conceal his identity.

[snip]

Rhodes gave James a burner phone—a cell phone used for concealing the identity of the user through a false registration and/or temporary use before discarding it for another cell phone. Rhodes instructed James to manufacture a false identity— including a false name and address—for the phone. James subsequently wrote the false name and address, “John Smith, 201 Oak Street, Albie, NE 68001,” along with a phone number and “Signal pin” on a sticky note placed inside the back of the phone’s battery case. Rhodes did not allow James and others to have their mobile phones powered on or nearby any time they discussed the Presidential Election and next steps.

But it wasn’t just Rhodes. One paragraph describes someone James “understood to be an attorney for the Oath Keepers” instructing them all to delete their communications. After this instruction, James in turn told Mark Grods and Brian Ulrich to delete their own communications.

On January 8, 2021, James received a Signal message, in a group chat that included Rhodes, from an individual he understood to be an attorney for the Oath Keepers that stated, “STEWART: YOU ALL NEED TO DELETE ANY OF YOUR COMMENTS REGARDING WHO DID WHAT. You are under zero obligation to leave them up. You/we have not yet gotten a preservation order instructing us to retain those chat comments. So DELETE THEM. I can’t delete them because this is a legacy Signal chat that doesn’t let me delete comments. Only the comment author can delete a comment. So GET BUSY. DELETE your self-incriminating comments or those that can incriminate others. Start now …”

Thereafter, on January 8, 2021, James forwarded to Grods the message from the attorney and instructed him to “make sure that all signal comms about the op has been deleted and burned.” James also messaged Ulrich on Signal and instructed him to delete messages with photographs that included their faces.

It’s unclear who this person is — Kelly SoRelle is one possibility. Whoever it is, DOJ has described this in such a way as to remain ambiguous about the lawyer’s actual role, which is important because, as part of the later investigation, DOJ got another Oath Keeper to disavow SoRelle’s role as an attorney (meaning they wouldn’t have to treat her communications as privileged). In any case, whoever this lawyer is, the person is now implicated in James, Grods, and Ulrich’s efforts to obstruct the investigation, and as such becomes a candidate to be charged as a co-conspirator him or herself.

The other actions implicating Rhodes serve to show that Rhodes and James (as well as Kelly Meggs, though the evidence against him is weaker), started pursuing sedition before January 6 and continued it even after the inauguration.

In advance of and on January 6, 2021, James and others agreed to take part in the plan developed by Rhodes to use any means necessary, up to and including the use of force, to stop the lawful transfer of presidential power.

[snip]

On January 8, 2021, James collected his firearms and Grods’s shotgun, and he traveled to Texas where he met and stayed with Rhodes and others to, in part, serve as Rhodes’s security and be prepared to carry out Rhodes’s next instructions. James remained with Rhodes in Texas until February 2021.

While with Rhodes in Texas, and before the Inauguration on January 20, 2021:

[snip]

b. James accompanied Rhodes on multiple trips where Rhodes purchased thousands of dollars’ worth of firearms and tactical equipment, including scopes, ammunition, magazines, bipods, duffel bags, holsters, and firearm-maintenance equipment.

c. While in a vehicle together, Rhodes gave James an AR-platform firearm and explained that Rhodes would not be taken by law enforcement without a fight. James understood Rhodes to be ordering him to help defend Rhodes against law enforcement with force in the event of an arrest.

[snip]

James departed Texas in February 2021. At Rhodes’s instruction, James took with him multiple firearms, thousands of rounds of ammunition, multiple burner phones, scopes, magazines, night-vision equipment, and other tactical gear. Rhodes told James to be prepared to transport and distribute the equipment to others upon Rhodes’s instruction and to be prepared for violence in the event of a civil war. James stored this equipment in a storage shed in Alabama and awaited Rhodes’s instructions.

In short, the first person DOJ got to flip after the sedition charges was probably the most important witness against Rhodes as the leader of a seditious conspiracy.

But it’s not just Rhodes endangered by James’ cooperation. DOJ has included new details about what happened to James’ and others’ guns (including that they remained at the Hilton Garden Inn in Vienna, rather than in the Ballston Comfort Inn) — the significance of which I laid out here.

James and others amassed firearms on the outskirts of Washington, D.C.—some distributed across hotels

[snip]

On January 4, 2021, James traveled with Ulrich, Grods, and others to the Washington, D.C., metropolitan area. James brought a semi-automatic handgun, and Ulrich, Grods, and others brought firearms, including a rifle, a shotgun, a semi-automatic handgun, and ammunition. James stored their firearms at the Virginia hotel where he, Rhodes, Minuta, and others had rooms.

The statement of offense makes it clear that James has told DOJ about his conversations during the riot with Mike Simmons (but not what they included).

Between 2:00 p.m. and 4:05 p.m., James exchanged multiple phone calls with the operation leader Rhodes had appointed for January 6.

The statement implicates Roberto Minuta directly in James’ violence.

At 3:16 p.m., while inside the Capitol lobby outside the Rotunda, James asked Minuta, “Want to keep pushing in?” Minuta responded, “yup.” James then pushed toward the Rotunda, yelling, “Keep fucking going!”

[snip]

Other members of the mob, including Minuta, began pushing James forward into the Rotunda while James yelled, “Keep going!” James and Minuta breached the Capitol Rotunda, and then James was expelled by at least one officer who aimed chemical spray directly at James. Multiple officers pushed James out from behind.

And in a really interesting passage, the statement describes planning that happened on November 14 and 15 in the DC area and VA.

On November 14 and 15, 2020, James met with Rhodes and others in the Washington, D.C., metropolitan area and at Caldwell’s Virginia farmhouse and learned about the start of their plans to oppose by force the lawful transfer of presidential power.

As WO noted yesterday, there may have been an earlier reference to Thomas Caldwell removed in this draft (in which his first name was used), which might have described some reconnaissance Caldwell did on or before November 9, as described in the indictment. The November 14 planning is important, however, because it suggests broader coordination with “others” at the MAGA March. It may reflect Jon Schaffer’s cooperation; his arrest affidavit is one of the few, among all January 6 defendants, that mentions that march. DOJ now has a witness to that planning.

Perhaps the most interesting detail of the statement describes a plan to report to White House grounds and secure the perimeter.

In the weeks leading up to January 6, 2021, Rhodes instructed James and other coconspirators to be prepared, if called upon, to report to the White House grounds to secure the perimeter and use lethal force if necessary against anyone who tried to remove President Trump from the White House, including the National Guard or other government actors who might be sent to remove President Trump as a result of the Presidential Election.

The “if called upon” language reflects some of what we’ve seen in Rhodes’ (and the Oath Keepers’) ideology generally — that they believed they would become a legal militia once the President called on them. It reflects the contingent nature of the preparedness, something Rhodes has already tried to use to undercut the charges. But it also raises questions about why James and others, after having “provided security” for Roger Stone at the Willard the morning of the riot, hung around the Mayflower Hotel until the Capitol was breached. That is, they may have remained close to the White House that day until Rhodes decided there were more immediate objectives. All of which makes me more interested in whether the Oath Keepers brought weapons into DC that day.

Finally, there are the interesting details that aren’t in this statement, but which surely are key aspects of James’ cooperation. As noted above, the statement describes James’ contacts with Mike Simmons after 2:00PM. But we know those communications started earlier, at least by 10:06AM, when James was with Roger Stone.

Then there’s a comment from the indictment that doesn’t show up in this statement, in which James shares his opinion with “another individual” that Joe Biden’s inauguration would lead to “Civil War 2.0.”

On Inauguration Day, January 20, 2021, JAMES messaged another individual, “After this .. .if nothing happens .. .its war … Civil War 2.0.”

This statement has far more details showing that James was taking steps to prepare for such a civil war. But this detail of reflecting intent doesn’t appear in it.

Which is to say, there’s a lot here for Stewart Rhodes and others to see, to entice them to follow James’ lead in pleading.

But there’s a lot left unsaid to make others worry.

Bennie Thompson to Ivanka: Come In from the Conspiracy

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Even though you read this site, you may not recognize the names Brad Smith or Marshall Neefe. Even though I’ve focused some attention to his case, you may not remember the significance of Ronnie Sandlin. You might not even remember that the Oath Keeper conspiracy was named after retired Navy officer Thomas Caldwell before he was spun off into the sedition conspiracy named after Stewart Rhodes.

But those are all references of import to understand this footnote in the letter Bennie Thompson sent to Ivanka Trump, inviting her to testify voluntarily.

The Select Committee is aware of the motivation of many of the violent rioters from their posts on social media, from their contemporaneous statements on video, and from the hundreds of filings in federal court.11

11 For example, many defendants in pending criminal cases identified President Trump’s allegations about the “stolen election” as a motivation for their activities at the Capitol; a number also specifically cited President Trump’s tweets asking that supporters come to Washington, D.C. on January 6th. See, e.g., United States of America v. Ronald L. Sandlin https://www.justice.gov/opa/page/file/1362396/download: “I’m going to be there to show support for our president and to do my part to stop the steal and stand behind Trump when he decides to cross the rubicon.” United States of America v. Marshall Neefe and Charles Bradford Smith https://www.justice.gov/usao-dc/case-multi-defendant/file/1432686/download: “Trump is literally calling people to DC in a show of force. Militias will be there and if there’s enough people they may fucking storm the buildings and take out the trash right there.” United States of America v. Caldwell et al. https://www.justice.gov/usao-dc/case-multi-defendant/file/1369071/download: “Trump said It’s gonna be wild!!!!!!! It’s gonna be wild!!!!!!! He wants us to make it WILD that’s what he’s saying. He called us all to the Capitol and wants us to make it wild!! ! Sir Yes Sir!!! Gentlemen we are heading to DC pack your shit!!”

The Select Committee could have chosen any number of individual defendants to support the claim that Trump was the motivating force for the participants of the mob that stormed the Capitol on January 6.

It did not.

Instead, without saying that it had, it cited three conspiracy indictments: a conspiracy that involved totally random guys who met online coming armed to DC and assaulting officers to break open the East doors and break into the Senate chamber, a conspiracy where guys armed themselves to come to DC based on a motivation that, “Why shouldn’t we be the ones” to kick off war, and a conspiracy that has now officially been charged as sedition.

What the Select Committee just said to Ivanka, very subtly (and without the hotlinks to these court filings to make it easy) is that multiple organizers across multiple conspiracies — all involving arming themselves before traveling to DC — acted on Trump’s comments in December and January as instructions.

What the Select Committee has laid out in this footnote is that key members of conspiracies that led to violent assaults on January 6 entered into an agreement with Donald Trump to engage in violence.

Other coverage of this letter has focused on the many other scathing details included in it:

  • Proof that Trump knew he was making an illegal request of Mike Pence (and that Ivanka knew such pressure was wrong)
  • Proof that multiple people attempted to get Trump to call off the violence (and that staffers repeatedly asked Ivanka to intercede to get him to do so)
  • Proof that advisors including Kaleigh McEnany and Sean Hannity attempted to get Trump to disavow these efforts

In response to the letter, Ivanka issued a statement making it clear that on January 6 she disavowed the violence caused by her father.

Ivanka Trump just learned that the Jan. 6 Committee issued a public letter asking her to appear. As the Committee already knows, Ivanka did not speak at the January 6 rally. As she publicly stated that day at 3:15pm, “any security breach or disrespect to our law enforcement is unacceptable. The violence must stop immediately. Please be peaceful.”

But that doesn’t account for another detail of the letter that has gotten far less attention than the eye-popping new details about Trump’s actions: Chairman Thompson reminded Ivanka (in a paragraph that seemingly addresses another topic) not just of the requirements of the Presidential Records Act, but also that she got formal notice of those requirements in 2017.

The Select Committee would like to discuss this effort after January 6th to persuade President Trump not to associate himself with certain people, and to avoid further discussion regarding election fraud allegations. We also wish to share with you a memorandum from former White House Counsel Donald McGahn (attached), regarding the legal requirements on White House personnel to turn over to the National Archives any work-related messages from personal devices. We wish to be certain that former White House staff are fully aware of these obligations.

Ivanka, of course, is not just the former President’s daughter. She’s also someone legally obliged to share all the communications conducted while performing whatever role it is she played in the White House — up to and including begging her Daddy to call off a violent mob — with the National Archives.

Thompson would not have mentioned this if the committee had been able to obtain Ivanka’s side of many of these communications from the Archives (or at least seen them in documents Trump was attempting to claim privilege over). Thompson seems to know that Ivanka is not in compliance with the Presidential Records Act specifically as it pertains to her role on January 6.

Here’s the thing about conspiracies. Once you join them, you’re in them — you’re on the hook for what all other co-conspirators do, from acquiring weapons to bring to DC, to assaulting cops, to planning to overthrow the government — unless you make an affirmative effort to leave the conspiracy.

Ivanka might well point to that comment in her statement — The violence must stop immediately — as an effort to leave a conspiracy.

Except if she is covering up some of the things she knows by withholding records from the Archives, she’s going to have a hard time arguing that she didn’t remain in the conspiracy with all those people plotting violence by helping to cover it up.

Judge Tim Kelly Releases Opinion on Obstruction Affecting as Many as Two Dozen Proud Boys

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Judge Tim Kelly released his order denying Ethan Nordean’s motion to dismiss the Proud Boys’ conspiracy indictment, a challenge largely focused on DOJ’s application of the obstruction statute to January 6 (here’s my Twitter thread on the opinion). The opinion cites Dabney Friedrich’s opinion in Sandlin seven times, Amit Mehta’s opinion in Caldwell three times, and Trevor McFadden’s opinion in Couy Griffin (on one of the trespassing charges) ten times, suggesting that DC District judges (three of them Trump appointees) are coming to a consensus approving the way DOJ has charged these January 6 cases.

Perhaps the most notable language in the opinion rejects a comparison Nordean tried to make with the Brett Kavanaugh Supreme Court protests.

Arguing that the statute invites discriminatory enforcement, Defendants repeatedly point to charging decisions and plea deals related to other January 6 defendants, see ECF No. 226 at 12– 13, and the uncharged protestors on the Capitol steps during Justice Kavanaugh’s confirmation hearings, see ECF No. 113 at 13–16. But neither provides evidence of vagueness. Both merely show “the Executive’s exercise of discretion over charging determinations.” United States v. Fokker Servs. B.V., 818 F.3d 733, 741 (D.C. Cir. 2016). And “Supreme Court precedent teaches that the presence of enforcement discretion alone does not render a statutory scheme unconstitutionally vague.” Kincaid v. Gov’t of D.C., 854 F.3d 721, 729 (D.C. Cir. 2017); see also United States v. Griffin, — F. Supp. 3d —- , 2021 WL 2778557, at *7 (D.D.C. July 2, 2021) (rejecting argument that defendant’s prosecution was discriminatory given large numbers of similarly situated, uncharged individuals from January 6 and uncharged protestors at Justice Kavanaugh’s confirmation hearings). “As always, enforcement requires the exercise of some degree of police judgment, but, as confined, that degree of judgment here is permissible.” Grayned v. City of Rockford, 408 U.S. 104, 114 (1972).

That’s because eventually Kavanaugh will get to weigh in on this issue, and because DOJ’s response to Nordean’s comparison was weaker than it should have been.

In a feat of procedural wizardry, Nordean already appealed today’s decision, yesterday, by sticking it onto an appeal of Kelly’s refusal to reopen bail.

The denial of his motion to dismiss normally would not be appealable until after trial (at which point Kavanaugh can have his say).

One reason Nordean may have done that is to attempt to stave off a flood of Proud Boys rushing to join Matthew Greene in pleading out. That’s because Judge Kelly’s decision will also apply to the following groups of Proud Boys and Proud Boy adjacent defendants whose cases he is also presiding over, as well as a number of others who might get added in if — as I expect — DOJ consolidates its Proud Boy conspiracy cases in the weeks ahead:

  • Nordean (4 defendants)
  • Pezzola (2 remaining defendants after Greene’s change of plea)
  • Chrestman (6 defendants)
  • Jackman (5 defendants charged individually with obstruction, but not with conspiracy)
  • Hughes (2 defendants)
  • Pruitt
  • Samsel (2 defendants)*

All defendants charged with obstruction have been waiting for these opinions. But as it happens, almost two dozen people currently or potentially charged with obstruction will be covered by this opinion. And if the attorneys are seeing the same signs of an imminent superseding Proud Boy indictment, if they don’t think there’ll be any fresh uncertainty from another judge, they may rush for the exits before that happens.

Thus far, with assistance from Enrique Tarrio, the Proud Boys have prevented the kinds of (visible) defections we’ve seen from the Oath Keepers. But this decision — coming at the same time as Greene’s plea deal — may change that.

*DOJ has been talking about consolidating Samsel’s case with that of Paul Johnson and Stephen Chase Randolph, along with another not-yet arrested defendant. If they do that, it would normally be kept under Judge Paul Friedman since he had the case first.

Update: Corrected McFadden’s first name.

Update: Judge Randolph Moss has also issued his opinion, similarly upholding the application of obstruction. Here’s my thread on it.

DOJ Gets Closer to Arguing Terrorizing Congress Amounts to Obstruction

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In August, I wrote about how one of Brady Knowlton’s lawyers got up to claim that because there could be no miscarriage of justice in the January 6 vote certification, his client could not have obstructed it under the statute DOJ is using to charge the more serious January 6  perpetrators, 18 USC 1512. I noted that the lawyer, Brent Mayr, was actually suggesting that Joe Biden and the 81 million voters who voted for him would suffer no injury if Biden’s vote certification had never taken place.

Up until that moment, the hearing before Judge Randolph Moss was an admittedly close question. Knowlton’s other lawyer made a robust argument that vote certifications weren’t the kind of official proceeding that could be obstructed. And AUSA John Pearse focused on the word “corruptly” distinguishing other First Amendment protected activities, such as those who protested the Brett Kavanaugh hearing, from those who stormed the Capitol.

Something similar just happened in the Oath Keeper case. After David Fischer made the same argument that Knowlton’s lawyers made — that this was not an official proceeding, to much skepticism from Judge Amit Mehta — Carmen Hernandez got up to argue that her client could not have known that he would risk a 20 year sentence for forcing his way into the Capitol as part of a stack.

Before I explain what happened next, four details are worth noting. First, Hernandez is, in my opinion, a smart and passionate lawyer. Her briefs on this case (surely helped by other public defenders, as they have so many clients facing this charge) were probably the most cogent I’ve read, and I’ve read virtually all of these challenges. That said, Hernandez submitted a 30-page brief, this morning which (Judge Mehta made a point of telling her) he had read by the time of the 2PM hearing. Also, she interrupted Mehta several times. Those things really pissed him off. Finally, of all the Oath Keepers, I think Donovan Crowl may have the best argument that he did not willfully enter into a conspiracy and did not intend to interrupt the vote count. That is, I think Crowl might beat the obstruction charge Hernandez was challenging in court, even if his co-defendants might not, but that’s an evidentiary issue, not a constitutional one.

Still, it was a robust argument. Hernandez made as good a First Amendment argument as has been made about this, that this was just about influence Congress. “Influencing Congress, going to Congress and shouting and making a fool of yourself? That’s what Americans do.”

Mehta challenged prosecutor Jeffrey Nestler why under Yates v. US, in which SCOTUS ruled that destroying fish to avoid prosecution for catching undersized fish was not tantamount to obstruction for a statute envisioning the destruction of documents, this kind of obstruction is not obviously obstruction.

Nestler also made a point that hasn’t been made enough by DOJ — one I noted in my post on Knowlton’s challenge. To argue that the rioters obstructed justice, rather than Trump or those who orchestrated the mobs, you really need to argue that it’s a kind of witness tampering, an attempt to terrify members of Congress not just to flee, but also to vote against the lawful winner of the election. There is abundant evidence that not only occurred on the day of the vote certification, but that the terror of the event led some Republicans to vote against impeachment. This is a classic case of witness tampering, a case where Congress was held hostage in an attempt to terrify them to not do their jobs. And it nearly succeeded. And the after effects remain.

So Nestler argued that the object of the conspiracy was to scare Congress to stop the proceedings. Judge Mehta rightly responded, “Where do I look in the indictment for that?”

But like the Moss hearing, this one ended up with a hypothetical. If someone burst into his courtroom with the specific intention of preventing these proceedings from taking place, Judge Mehta asked Hernandez, would that amount to obstruction. Yes, she responded, resorting immediately to the far weaker argument that Fischer had tried to make, that the vote certification is not an official proceeding.

That may ultimately be the hook on which Mehta starts to unravel this question.

Whatever happens, that will not be the end of this question, because until DOJ makes a much stronger argument, both about how the terror was designed to function here and what distinguishes not only January 6 defendants from Kavanaugh protestors, but also the January 6 obstruction defendants from those charged with parading, judges will continue to face this difficult question. And at some point, a defense attorney will avoid providing the judge the obvious way to answer the question.

“One if By Land, Two if By Sea:” What We Know of the Oath Keepers’ January 6 Quick Reaction Force

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On Twitter yesterday, some folks asked me whether there’s any credibility to the government’s claims that the Oath Keepers had an armed Quick Reaction Force ready to rush to DC in case things devolved to armed battles on January 6.

At first, it appeared that the government might just be unduly crediting the wild boasts of Thomas Caldwell, who spoke repeatedly of arranging such a force in the days leading up to January 6. But over the course of a series of filings, the government has shown that after a sustained discussion about whether Oath Keepers should come armed to DC for the insurrection, it was decided to instead amass guns in (at a minimum) the Ballston, VA Comfort Inn. The evidence thus far submitted shows that multiple participants knew of the stash, called it the QRF, and deposited their own weapons at the stash. The record is less certain about what plans the Oath Keepers had to transport that arsenal to DC, but in a remarkable comment on January 3, Kelly Meggs — who appears to have played a key role in organizing security for Roger Stone, inter-militia negotiations, and The Stack that pushed into the Rotunda on January 6, and who may have paid for two rooms to use for the QRF — suggested two rally points to receive the weapons: “1 if by land North side of Lincoln Memorial 2 if by sea Corner of west basin and Ohio is a water transport landing !!”

This post will pull together the evidence shown to date.

On December 25, according to the Fourth Superseding indictment and other filings, Kelly Meggs noted on Facebook what a lot of other militia members were at the time: guns are prohibited in DC. “We are all staying in DC near the Capitol we are at the Hilton garden inn but I think it’s full. Dc is no guns. So mace and gas masks, some batons. If you have armor that’s good.”

But within days, on December 30, Thomas Caldwell (who is not a member of the Oath Keepers but who coordinated closely with, at least, contingents from Ohio and North Carolina) told Jessica Watkins that an Oath Keeper from North Carolina had committed to serve as the Quick Reaction Force in Virginia — he was aiming to get reservations at the Comfort Inn in Ballston. The idea was he’d bring weapons into Virginia in his truck.

As we speak he is trying to book a room at Comfort Inn Ballston/Arlington because of its close-in location and easy access to downtown because he feels 1) he’s too broken down to be on the ground all day and 2) he is committed to being the quick reaction force anf bringing the tools if something goes to hell. That way the boys don’t have to try to schlep weps on the bus. He’ll bring them in his truck day before

Over the course of that same conversation, Caldwell updated Watkins that the North Carolina Oath Keeper had indeed gotten reservations at the Ballston Comfort Inn. “Just got a text from him he WAS able to book a room in that hotel I recommended which is on Glebe Road in Arlington.”

The next day, Meggs seems to have come to the same understanding. On December 31, he asked someone else if they were bringing weapons to DC. “You guys Gonna carry?” After the other person said, “No,” they weren’t, Meggs explained that the Oath Keepers had a Quick Reaction Force 10 minutes away. “Ok we aren’t either, we have a heavy QRF 10 Min out though.”

The Comfort Inn in Ballston would be a 7-minute drive without traffic.

That same day, December 31, someone offered up to Joshua James assistance from friends close to DC if the Oath Keepers got in trouble. “i have friends not far from DC with a lot of weapons and ammo if you get un trouble i ca. Coordinate help.” James suggested they might not need it on account of the QRF, “That might be helpful, but we have a shitload of QRF on standby with an arsenal.” The next day an Oath Keeper asked James how to get the guns to VA if the Alabaman Oath Keepers were staying in DC. “Hey we told to bring guns and maybe stage them in VA?? But you are showing hotels in DC for Alabama. Are we bring guns or no if so how will that work?” James suggested a farm might still be in play. “Were working on a Farm location Some are bringing long rifles some sidearms… I’m bringing sidearm.” By that point, then, it appears the Oath Keepers had committed to keeping weapons in VA with a QRF. But the logistics of it remained uncertain.

On January 2, Kelly Meggs texted a Leadership Signal chat with those two proposed meeting points for the QRF in DC: the Lincoln Memorial if the bridge was still open, and south of there at Ohio and West Basin if the bridges did get shut. “1 if by land North side of Lincoln Memorial 2 if by sea Corner of west basin and Ohio is a water transport landing !! QRF rally points Water of the bridges get closed.” The next day, Caldwell sent out a text message to a Three Percenter looking for a boat to ferry weapons.

Can’t believe I just thought of this: how many people either in the militia or not (who are still supportive of our efforts to save the Republic) have a boat on a trailer that could handle a Potomac crossing? If we had someone standing by at a dock ramp (one near the Pentagon for sure) we could have our Quick Response Team with the heavy weapons standing by, quickly load them and ferry them across the river to our waiting arms. I’m not talking about a bass boat. Anyone who would be interested in supporting the team this way? I will buy the fuel. More or less be hanging around sipping coffee and maybe scooting on the river a bit and pretending to fish, then if it all went to shit, our guy loads our weps AND Blue Ridge Militia weps and ferries them across. Dude! If we had 2 boats, we could ferry across and never drive into D.C. at all!!!!

But the next day, January 3, Caldwell sent an email with maps to the person in charge of the QRF with the subject line, “NEW MAPS RELATIVE TO HOTEL AND INGRESS FOR QRF,” that seemed to assume he would drive from the hotel to “the target area,” via a route that went nowhere near the Lincoln Memorial. “These maps walk you from the hotel into D.C. and east toward the target area on multiple roads running west to east including M street and P street, two of my favorites . . . .”

Similarly, it remained unsettled whether or not individual participants would contribute their own weapons to the stash. On January 2, for example, Mark Grods asked Joshua James if he should bring weapons to insurrection. “So, I guess I am taking full gear less weapons? Just reading through all the posts. Would rather have it and not need it.” James instructed him to leave his weapons home, because the QRF would have weapons. “Yeah full gear… QRF will have weapons Just leave em home.”

On January 3, Jessica Watkins told Bennie Parker that they didn’t need to bring weapons because the QRF would be there. “We are not bringing firearms. QRF will be our Law Enforcement members of Oathkeepers.”  But then that same day she reversed the instruction. “Weapons are ok now as well. Sorry for the confusion.”

On January 4, Stewart Rhodes made the Oath Keepers’ plan to have a QRF nearby public.

As we have done on all recent DC Ops, we will also have well armed and equipped QRF1 teams on standby, outside DC, in the event of a worst case scenario, where the President calls us up as part of the militia to to assist him inside DC. We don’t expect a need for him to call on us for that at this time, but we stand ready if he does (and we also stand ready to answer the call to serve as militia anytime in the future, and anywhere in our nation, if he does invoke the Insurrection Act).

Both Watkins and Grods appear to have brought their own weapons. On January 4, before she got to the Comfort Inn, Watkins asked the Florida Signal list where to drop weapons off before any operations. “Where can we drop off weapons to the QRF team? I’d like to have the weapons secured prior to the Op tomorrow.” According to Mark Grods’ Information, he “brought firearms to Washington, D.C.” — which may have exposed him to further criminal liability — “and eventually provided them to another individual to store in a Virginia hotel.”

Kenneth Harrelson also appears to have dropped guns at the Ballston Comfort Inn. On the 5th, Harrelson asked for the location of the “QRF hotel.” Kelly Meggs responded by asking for a DM. Three hours later, Harrelson showed up at the Comfort Inn for an hour.

Caldwell, too, appears to have dropped off a weapon to the QRF room, as this surveillance video from mid-afternoon on January 5 suggests (the government alleges he is holding the long sheet-wrapped item).

After Caldwell returned from the Capitol on January 6, the North Carolina Oath Keeper brought a similarly blanket-wrapped long item to Caldwell’s room.

The newly accused alleged Stack participant David Moerschel also appears to have left a gun at the Comfort Inn. Early on January 7, according to his complaint, Moerschel made two comments on the Oath Keepers’ “OK FL DC OP Jan 6″ Signal chat about leaving stuff for others at the QRF — the Ballston Comfort Inn.

“We have your bag, We will leave it with Kane at the QRF. We are en route there now.”

“Anyone else leave anything in the white van? We can leave it for you at QRF.”

Moerschel sent the first text, saying “we are en route” at 6:35AM. Twenty-four minutes later, a person that the government alleges is Moerschel appeared in Comfort Inn surveillance video carting a gun case around.

According to a detention memo for Joseph Hackett, he and Kelly Meggs, along with another person, showed up shortly thereafter.

Kenneth Harrelson got a later start than the others. At 8:55 on January 7, he texted to the Florida Signal chat, asking where his “shit” was at.

So we’re just leaving DC and I would like to know where my shits at since it seems everyone’s gone already.

In response, someone replied,

We are headed out now. Did you leave it [his shit] at Comfort Inn in that room?

Starting twenty minutes later, Harrelson was at the Comfort Inn along with Jason Dolan, with whom Harrelson drove in a rental car.

In Moerschel’s complaint, the North Carolinians alleged to have watched this QRF room while others were at insurrection are described without comment as co-conspirators. None have been charged (at least not publicly). But if and when they are, I imagine we’ll see still more video of weapons being moved around the Ballston Quality Inn.

Again, the precise plan for all these weapons remains unclear. But the government has provided evidence that at least six people already charged (Caldwell, Watkins, Moerschel, Harrelson, Grods, and Dolan) dropped off weapons. Given that Kelly Meggs paid for two hotel rooms there even though he stayed in DC, the implication may be that the same guy planning, “1 if by land, 2 if by sea,” paid for the rooms in question.

Update, August 18: Added footage with Hackett and Meggs.

The Oath Keepers Dilemma: The Government Has Threatened Yet Another Indictment

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The remaining 15 Oath Keeper conspiracy defendants have a status hearing today.

A lot has happened since the last status hearing the bulk of them had on June 1, 2021. Most notably, Graydon Young — co-defendant Laura Steele’s brother — pled guilty on June 23, just over a week ago. His cooperation with prosecutors will implicate the entire Stack, especially Joseph Hackett, Jessica Watkins, his sister, as well as the participants on a OK FL DC OP Jan 6 listserv (in addition to Watkins and Hackett, Kelly Meggs, Kenneth Harrelson, Jason Dolan, and William Isaacs).

Then, on Wednesday, Mark Grods pled guilty. His cooperation will implicate fellow Alabaman Joshua James (who got Grods to delete some files), Meggs, Watkins, Robert Minuta, Stewart Rhodes, and others who were on chats Grods was part of, as well as everyone involved in the Golf Cart chase and prior events at the Willard Hotel, adding Jonathan Walden to the mix.

Yesterday (or today, depending on which defendant you ask) was a deadline that Judge Amit Mehta set on June 1 for all motions unrelated to discovery (with the expectation that the late added defendants would probably need more time).

Thomas Caldwell (who can be implicated primarily by the Ohioans, the still unindicted Person Three, Grods, and possibly some other VA militia members not charged in this conspiracy) has been filing motions. He filed a marginally serious motion to dismiss everything on June 15, and filed a frivolous motion to transfer venue yesterday.

Yesterday, the deadline, both Joshua James and Kenneth Harrelson filed some motions. The former filed a motion to dismiss an assault charge and an obstruction charge against himself, as well as for a Bill of Particulars. The latter filed a motion to dismiss the counts of the indictment charged against him. The Meggses had earlier filed a motion for a Bill of Particulars.

But thus far, almost everyone is asking for an extension to file their own motions. Here’s a summary of what’s on the books thus far (Dolan, Hackett, Isaacs, and Walden would have an extension in any case, on account of their late addition):

  1. Thomas Caldwell: Motion to Dismiss, Motion to Change Venue, Motion for Extension
  2. Dominick Crowl: Motion for 60 Day Extension, Motion to Adopt
  3. Jason Dolan: Motion for Extension
  4. Joseph Hackett
  5. Kenneth Harrelson: Motion to Adopt Caldwell and James Motions, Motion for Extension, Motion to Dismiss Charges against Him
  6. William Isaacs
  7. Joshua James: Motion to Adopt, Motion to Dismiss Counts 8 and 13, Motion for Bill of Particulars, Motion for Extension
  8. Connie Meggs: Motion to Join Caldwell’s Motion, Motion for 60 Day Extension
  9. Kelly Meggs: Motion to Adopt Caldwell’s Motion (including a cursory adoption of his obstruction charge)
  10. Roberto Minuta (Minuta’s attorney has had some health limitations so would need an extension anyway): Motion for 30 Day Extension
  11. Benny Parker: Motion for at least 60 Day Extension, Motion to Adopt Harrelson and Caldwell, though not adopting Caldwell’s “partisan surplusage”
  12. Sandi Parker: Motion to Join Caldwell Motion, Motion for Extension
  13. Laura Steele: Motion to be able to go on vacation, Motion to Join Caldwell, Motion for at least 60-Day Extension
  14. Jonathan Walden
  15. Jessica Watkins: Motion to Join Caldwell’s Dismissal, Motion for 60 Day Extension

Between these requests, the government has gotten defendants to waive Speedy Trial for at least 30 more days as they contemplate the legal dilemma they’re facing.

It’s true that most defendants cite the voluminous discovery before them. A few claim they have not yet had an adequate tour of the Capitol. Harrelson’s motion quotes several paragraphs of boilerplate from the government.

But a comment from James’ Motion for Extension is perhaps the most telling. It asserts that defendants have been told there’s still yet another indictment on the way.

Because the government has made clear that an additional indictment (which could include more charges or more defendants) is possible, and because Mr. James is unaware of which, if any, currently charged defendant will be proceeding to trial, it is impossible to assess, prepare, and file motions regarding severance of counts or defendants at this time.

It also suggests that it’s possible none of the currently charged defendants will actually proceed to trial.

Short of adding Stewart Rhodes, there are few places this indictment will go except to make the terrorism or insurrection claims more explicit.

Which may explain why James, one of the remaining key players who would be able to trade a lesser sentence for a cooperation deal, suggests no one may go to trial.

Tucker Carlson and Glenn Greenwald Are Outraged that Bill Barr Set Up Antifa!!!! [Just Kidding]

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You’ve no doubt seen the conspiracy theory championed by Tucker Carlson and Glenn Greenwald claiming that the unnamed Oath Keeper associates described in those indictments are actually FBI informants.


As happened with earlier propaganda campaigns (notably the one downplaying Brian Sicknick’s death), the conspiracy theory started with Revolver News, got magnified by Tucker Carlson, and got normalized by Glenn Greenwald (the latter of whose central role largely escaped attention because commentators don’t identify him, yet, as a right wing propagandist).In his first appearance, Carlson grotesquely accused Sharon Caldwell, who was described in later Oath Keeper documents as Person Two but was identified clearly in earlier documents by her first name and as Thomas Caldwell’s spouse, of being an informant who framed her husband.

Person Two and Person Three were organizers of the riot. The government knows who they are. But the government has not charged them. Why is that? You know why. They were almost certainly working for the FBI. So FBI operatives were organizing the attack on the Capitol on January 6, according to government documents. And those two are not alone! In all Revolver News reported there were, quote, “upwards of 20 unindicted co-conspirators in the Oath Keepers indictments, all playing various roles in the conspiracy, who have not been charged for virtually the exact same activities — and in some cases much, much more severe activities — as those named alongside them in indictments.”

Huh????

So it turns out that this white supremacist insurrection was, again, by the government’s own admission in these documents organized at least in part, by government agents.

This little campaign has led compromised members of Congress to embrace this excuse for the insurrection they previously have claimed was not an insurrection at all.

Thomas Caldwell’s wife, Sharon, is Person Two

To show that “Person Two,” whom Tucker Carlson alleges for framing Thomas Caldwell, is actually his wife, Sharon, you can compare this filing, where her name is not redacted, with this one, where “Person Two” has substituted for her name.

1. Sharon Caldwell is Thomas’ wife:

2. “Sharon and I are setting up shop there” (at the Comfort Inn Ballston) and then “Sharon and I are going our way.”

3. “Sharon was right with me!”

Later filings over release conditions confirm the selfies posted to Facebook were of Thomas’ wife, describe Thomas agreeing to be accompanied by his wife, Sharon, to Sunday Mass starting on Easter, expressing concern that his wife has to do all the chores on their 30-acre farm which has led to the loss of farm income, and describing that he rarely travels anywhere without his wife, Sharon Caldwell, and she’s willing to go with him every time he does leave their property.

Glenn and Tucker must be outraged that Billy Barr set up Antifa

Parts of this campaign are pathetic, even for the men involved, and may reflect a desperate attempt to repackage their own past claims.

For example, after parroting a bunch of obviously self-serving PR from Parler in the days after the attack (such as that the insurrectionists organized on Facebook, not Parler), Glenn now shows that Parler was actually sharing threats of violence with the FBI in advance, without noting that that undermines several things he said in the past, such as that the insurrectionists didn’t plan on Parler. This must be dizzying and embarrassing for Glenn.

And because Glenn has to package this — like he did his never-ending obsession with Hunter Biden’s laptop — as a failure of Democrats and liberal media, he remarkably claims that the left — which has so relentlessly asked why the FBI was caught unawares that Glenn even screen caps an example of Ryan Goodman linking to Carolyn Maloney doing so — is resistant to questioning the FBI’s role in the riot.

What accounts for this furious liberal #Resistance to questioning the FBI’s role in the January 6 riot and asking whether there are vital facts that are being concealed?

Maybe Glenn has a harder time getting CSPAN in Brazil than I do in Ireland, because when I’ve watched the multiple hearings Democratic Chairs of various committees (including Maloney) have had with FBI Director Chris Wray or now-National Security Branch EAD Jill Sanborn, they question the FBI about it over and over and over. Glenn literally made up this hash-tagged resistance out of thin air because he needs it to be true, when in fact the opposite is true.

But it’s important to look at what this propaganda campaign obscures.

Probably, this campaign got started because a number of people implicated in the investigation, now realizing that it won’t go away, are trying to absolve themselves of any responsibility. It has already happened with those charged for crimes committed on January 6. Dominic Pezzola suggested that a key witness against him was actually more involved in the riot than he was, only to learn he guessed wrong and that the government was going to invoke a terrorism enhancement with him. Similarly, top Proud Boys were hinting at challenges to the UCC-1 described in their indictment, before they grew conspicuously silent about it, as if they learned something that undercut such claims. [see update below]

The other reason people are talking about informants is that (FBI’s failure to respond notwithstanding) it’s not that far-fetched. Importantly, multiple Proud Boys have claimed to be informants, though Glenn only mentions Enrique Tarrio. Maybe that’s because the implication of the claims from the others leads to a place Glenn and Tucker don’t want to go. Of the four Proud Boys that Aram Rostom described as being FBI informants prior to January 6, three claimed to be sharing information about Antifa.

Reuters interviewed two Proud Boys members who spoke on the condition of anonymity about some members’ interactions with the FBI. Reuters also interviewed Proud Boys leader Enrique Tarrio, examined court records and interviewed sources close to the federal investigation.

The reporting showed:

– One Proud Boy left the group in December after telling other members he was cooperating with the FBI by providing information about Antifa, say Tarrio and two other Proud Boy sources. The former member, whom Reuters was unable to identify, insisted to group leaders that he had not revealed information about the Proud Boys, these people say.

– A second Proud Boy leader bragged in 2019 about sharing information with the FBI about Antifa, according to private chats leaked on social media. The chats’ authenticity was confirmed by a source familiar with the Proud Boys and the Jan. 6 case.

– A third Proud Boy leader, Joseph Biggs, who was indicted and charged with conspiracy in the January attack, has said in court papers he reported information to the FBI about Antifa for months. Reuters spoke to Biggs two days before the riot. In that interview, he said he had specific plans for Jan. 6, but declined to disclose them. But, he volunteered to Reuters in that call, he was willing to tell his FBI contact of his plans for the coming rally, if asked. Reuters wasn’t able to determine whether such a contact took place. [my emphasis]

What this suggests is not that the FBI set up the Proud Boys with paid informants, but the opposite: that under a President who “denounced” the Proud Boys by saying they should “Stand back and stand by,” and under an Attorney General who dismissed threats against a judge involving the Proud Boys as a technicality, the Proud Boys were viewed not as an equivalent (or greater) threat than Antifa, but instead were able to disguise their use of Antifa as a foil to sow violence by serving as informants against them.

If these three self-proclaimed informants are right (there’s good reason to doubt them), then it means under Bill Barr, the FBI was using informants not to set up the Proud Boys, but instead to set up Antifa.

If Tucker and Glenn were good faith actors and not paid propagandists, you would fully expect them to be outraged that the FBI set up Antifa.

Especially because of the possibility that the FBI didn’t take the Proud Boys threat seriously because (on top of being endorsed by the President and downplayed by the Attorney General), they prioritized investigating Antifa over investigating the Proud Boys. With that possibility in mind, read the framing of Glenn’s Substack post:

The original report, published by Revolver News and then amplified by Fox News’ Tucker Carlson, documented ample evidence of FBI infiltration of the three key groups at the center of the 1/6 investigation — the Oath Keepers, the Proud Boys, and the Three Percenters — and noted how many alleged riot leaders from these groups have not yet been indicted. While low-level protesters have been aggressively charged with major felonies and held without bail, many of the alleged plot leaders have thus far been shielded from charges.

The implications of these facts are obvious. It seems extremely likely that the FBI had numerous ways to know of any organized plots regarding the January 6 riot (just as the U.S. intelligence community, by its own admission, had ample advanced clues of the 9/11 attack but, according to their excuse, tragically failed to “connect the dots”).

[snip]

What would be shocking and strange is not if the FBI had embedded informants and other infiltrators in the groups planning the January 6 Capitol riot. What would be shocking and strange — bizarre and inexplicable — is if the FBI did not have those groups under tight control.

It is fucking insane that Glenn claims to be mystified by the possibility that a group endorsed in the President’s first Presidential debate and dismissed by the Attorney General would not get the proper scrutiny by the FBI. Trump very effectively punished people — especially at the FBI — for investigating entities close to him. And on September 29, 2020, Donald Trump made it quite clear the Proud Boys should get special treatment. That’s all the explanation you need. Though it is, indeed, reason for closer scrutiny, the kind of scrutiny that Democrats have been demanding, Glenn’s false claims to the contrary notwithstanding.

But if you want to raise the possibility that FBI had informants in the group, then the explanation may be equally as damning: That the FBI didn’t see January 6 coming because it was too busy treating Antifa as a terrorist threat.

Indeed, everything we know about the threat reporting on that day — which claimed the big risk of violence arose from the possibility of clashes between counter-protestors and right wing militias — suggests that may be what happened: that the FBI was looking the other way, possibly in conjunction with the militia that played a key role in planning the attack. That certainly accords with Acting Secretary of Defense Christopher Miller’s claim that Trump told him to use the National Guard to protect Trump supporters.

Since Glenn claims to be very familiar with the role of informants, surely he knows that multiple terrorists — definitely David Headley and allegedly Tamerlan Tsarnaev and Omar Mateen — have planned attacks under the cover of serving as informants (or in the case of Mateen, his father doing so). There were also at least two former FBI informants that played key parts in the Russian operation in 2016. The most logical answer to the questions that Glenn pretends to entertain is that the FBI didn’t look too closely at what Joe Biggs was planning (as part of a Kelly Meggs-brokered Florida alliance of militia groups with ties to Roger Stone), because they treated him as a credible source of reporting on Antifa.

The propaganda that goes unnoticed

The absurdity of accusing Sharon Caldwell of entrapping her spouse has, justifiably, gotten all the attention from this campaign.

But there’s a piece of propaganda that it incorporates — one parroted by Members of Congress — that deserves focus of its own: in framing his piece, Glenn not only claims that the plot leaders have been shielded from charges, he also states as fact that, “low-level protesters have been aggressively charged with major felonies and held without bail.”

While low-level protesters have been aggressively charged with major felonies and held without bail, many of the alleged plot leaders have thus far been shielded from charges.

In making this claim, Glenn is mindlessly parroting something that appears in the original Revolver piece.

The first category is the group of mostly harmless tourists who walked through already opened doors and already-removed barricades, and at most were guilty of minor trespassing charges and light property offenses. The second group consists of those who were violent with police officers, broke down barricades, smashed windows, belonged to a “militia” group engaged in military-style planning prior to the event, discussed transporting heavy weaponry, and so forth.

Up until now, the overwhelming (perhaps exclusive) share of counter-establishment reporting on 1/6 has focused on absolving the first group. And this is a valuable thing. The notion that these harmless “MAGA moms” wandering around the Capitol were domestic terrorists engaged in an insurrection is absurd. That many of these people are being held in prison, without bail, under harsh conditions, amounts to an unacceptable and outrageous abuse of basic human rights.

The only way to sustain a claim that “low-level protestors” have been charged with major felonies and held without bail is to claim that alleged plot leaders — people like Ethan Nordean, Joe Biggs, Billy Chrestman, and Kelly Meggs — were actually just protestors.

That’s because with perhaps two exceptions (people like Karl Dresch whose criminal records were cited as the reason for their detention), the only people who remain in jail are either those charged with planning the insurrection, or people who engaged in violence or came armed. And even many of those people were released. Just going in alphabetical order, Christopher Alberts brought a gun and a magazine to the insurrection but was released on bail. John Anderson is accused of assault but is out on bail. Richard Barnett, who entered Nancy Pelosi’s office with a high voltage stun gun, was initially jailed but has since been released. Bradley Bennett, whom the government argued went on the lam for weeks and destroyed his phone, got released on bail. Craig Bingert, involved in one of the conflicts with cops at a barricade, was released on bail. Gina Bisignano, accused of inciting violence and destruction with a bullhorn, was released on bail. Joshua Black, who was involved in confrontations with cops before heading to the Senate Chamber and said God ordered him to riot, was released on bail. James Breheny, an Oath Keeper who allegedly lied to the FBI and attended a key inter-militia planning event, is out on bail. Both men who brought zip ties to the Senate Chamber on the day of the riot, Eric Munchel and Larry Brock, are out on bail (and Brock isn’t even charged with a felony).

Even Brandon Fellows, charged with obstruction and present when Jeff Merkley’s office was trashed and laptop stolen, thus far remains out on bail, even after several bail violations.

Perhaps the only two people who remain in custody who weren’t either associated with a group being treated as a militia or involved in assault are Doug Jensen and Jacob Chansley. Both, though, played a kind of leadership role during the attack, both brought blades with them to the insurrection, both had direct confrontations with cops, and the government has argued (Jensen, Chansley) both exhibit the kind of fervor in their QAnon beliefs that pose a particular danger.

Given that QAnon had better success placing bodies where they were useful during the insurrection, I’m not sure it even makes sense to treat them differently than the more traditional militia.

Other than that, the men detained pre-trial are accused of leading the insurrection, precisely the people that this conspiracy theory falsely claims have been shielded from charges. Among the Proud Boys, Ethan Nordean, Joe Biggs, Charles Donohoe, Zack Rehl, and Kansas City cell leader Billy Chrestman remain jailed. Among the Oath Keepers, Kelly Meggs, Kenneth Harrelson, and Jessica Watkins remain jailed. All are accused of playing key leadership roles in the insurrection.

There were some questionable detention decisions early on. At this stage, however, there are no cases where people still detained are simply protestors on the wrong side of the law.

And yet even Glenn makes that false claim without any evidence.

Donald Trump’s FBI Director and Bill Barr’s hand-picked US Attorney called these defendants terrorists

There’s one more aspect of this conspiracy that is confounding.

Tucker Carlson and Glenn Greenwald suggest this is a Deep State plot to harm Trump and his supporters. Even Andrew McCarthy, who wrote a long and worthwhile piece debunking Tucker and Glenn’s conspiracies, nevertheless claims the prosecutorial decisions in this case reflect Democratic politicization.

Although Schaffer is plainly a member of the Oath Keepers conspiracy, the Biden Justice Department did not have him plead guilty to the conspiracy charge in the Oath Keepers indictment. That’s undoubtedly because, for the purposes of helping Democrats hype a white-supremacist terrorism narrative, the conspiracy charge is too minor. Although that charge has been portrayed by the media and the Justice Department as if it were a terrorism allegation, it actually involves a statute that criminalizes comparatively minor conspiracy offenses, fit for a maximum penalty of just five years’ imprisonment (with the possibility of no jail time at all).

So instead, DOJ had Schaffer plead guilty to a two-count criminal information, charging him with the substantive crimes of obstructing Congress and illegally carrying a dangerous weapon (bear spray) on restricted federal grounds. That allowed government officials to bray that Schaffer could be looking at 30 years in prison, which sure sounds a lot worse than five years. But it’s a feint. The 30-year level is just an aggregation of the maximum sentences prescribed by the two statutes in Schaffer’s guilty plea — i.e., the highest possible sentence that could potentially apply to anyone who violated these laws. The sentence a judge actually imposes within that 30-year range depends on the circumstances, with only the worst offenders getting the maximum sentence. Realistically, then, what matters in Schaffer’s case are the federal sentencing guidelines that apply specifically to him. In the plea agreement’s fine print, prosecutors concede that the guidelines call for a relatively paltry 41- to 51-month term, which may be reduced if his cooperation proves to be valuable.

I suspect that Schaffer is one of the unnamed, numbered “Persons” referred to in the Oath Keepers indictment.

[snip]

To be clear, Carlson is right that it is ridiculous for Attorney General Merrick Garland to portray the Capitol riot as if it were a terrorist attack and the people behind it as the most dangerous national-security threat we face. As noted above, the conspiracy allegation is not a terrorism charge: It carries a penalty of no more than five years. Carlson is right to point out that, despite the government’s and the media’s claims to the contrary, there is no indication that racism motivated the riot (the Oath Keepers, for example, are not a white-supremacist organization, and the indictment does not even hint that race had anything to do with January 6). Carlson is right that, even as congressional Democrats posture about the supposed need for a commission to fully expose the events of January 6, the government is withholding mounds of information — including the identity of the security official who killed rioter Ashli Babbitt, a concealment that would be unfathomable in a case where a police officer killed an African-American criminal suspect or a Black Lives Matter rioter. And Carlson was right to call out the ludicrous suggestion by Frank Figliuzzi, a former top FBI national-security official, that congressional Republicans who cynically supported Trump’s scheme to overturn the election result are the equivalent of a terrorist organization’s “command and control element.”

Christopher Wray — the FBI Director chosen by Donald Trump — has, from day one, called this a terrorist attack.

More importantly, the person leading this investigation for the first two months was the US Attorney Bill Barr installed with no input from Congress, Michael Sherwin. If Sherwin had his way, these people would be charged with seditious conspiracy. Under Sherwin, Proud Boy Dominic Pezzola’s crimes were labeled terrorism. Under Michael Sherwin, Jessica Watkins’ crimes were labeled terrorism. And while the Jon Schaffer cooperation agreement that McCarthy disdains was finalized after Sherwin left, signs of it were already evident before Sherwin left (note, McCarthy is probably wrong in his belief that Schaffer is one of the people identified thus far in the Oath Keepers conspiracy, and he misunderstands why prosecutors charged Schaffer like the did). A Sherwin-friendly article written after his departure quotes him stating these were not close cases (and also taking credit for making the bulk of the cases).

“These were not complicated cases,” Sherwin said of the Capitol breach probe. “What made these cases so unusual were the scope and scale of the crime,” reaching into almost every state in the country, including Florida.

Sherwin’s tour of duty as acting U.S. Attorney ended soon after the Biden administration took over the Justice Department. He was asked to stay on as the lead prosecutor in the Capitol breach probe, but Sherwin said it was time to move on after making the bulk of the cases in the investigation.

If you have a problem with the way this investigation unfolded, you have a problem not with Joe Biden’s DOJ, but instead with the guy Bill Barr installed into a politicized US Attorney role with no input from Congress.

Which may be why those who need to downplay the seriousness of the attack have instead resorted to baseless conspiracy theories.

Update: Because some dead-enders still don’t believe that Tucker Carlson has accused Sharon Caldwell of entrapping her husband Thomas, I’ve done an entire section showing how the same references to Person Two in a later filing show up as Thomas’ wife Sharon in an earlier one. I also describe all the efforts Sharon is making to keep her husband out of jail.

Update, July 25: Above, I noted that the Proud Boy leaders seem to have learned something that sated their curiosity about whether UCC-1 was an FBI informant. Indeed they did. At a recent hearing, one of the AUSAs on the case revealed that they had been provided this person’s identity and confirmation he was not an informant.

Several more relevant updates: First, Larry Brock has since been charged with obstruction, a felony, but remains out on bail. Doug Jensen, one of the last remaining people who wasn’t either a leader or charged with assault still being detained, was released on bail. Michael Curzio, one of just a few exceptions who got jailed because of past crimes, got released after serving a six month time served sentence for his misdemeanor trespass charge. Two non-violent defendants — Brandon Fellows and Thomas Robertson — have since had pretrial released revoked for violating their conditions.

Finally, the friend of former DEA officer Mark Ibrahim — who may himself serve as an FBI informant — not only debunked Ibrahim’s excuse for being at the insurrection, but made it clear that the FBI did not formally ask him to attend the event.

IBRAHIM said he went along with his friend, who had been asked by the FBI to document the event, and that he went along with his friend to assist with that effort.

Your affiant also interviewed IBRAHIM’s friend. According to the friend, IBRAHIM crafted this story about how his friend was at the Capitol to assist the FBI and that IBRAHIM was there helping him. IBRAHIM’s friend told your affiant that he was not there in any formal capacity for the FBI and that the FBI was not giving him directions or marching orders. He said that IBRAHIM crafted this story in an effort to “cover his ass.” According to IBRAHIM’s friend, IBRAHIM went to the rally in order to promote himself—IBRAHIM had been thinking about his next move after leaving the DEA and wanted the protests to be his stage for launching a “Liberty Tavern” political podcast and cigar brand.

Ibrahim, who brought another of the guns that Glenn claims no one brought to January 6 and displayed it publicly, is out on bail.

A New Emphasis on Threats of Violence in the Latest January 6 Conspiracy Indictment

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As I laid out the other day, the government charged six Three Percenters from California — American Phoenix Project founder Alan Hostetter, Russell Taylor, Erik Warner, Tony Martinez, Derek Kinnison, and Ronald Mele — with conspiracy. As I described, the indictment was notable in that just one of the men, Warner, actually entered the Capitol. But it was also notable for the way it tied Donald Trump’s December 19 call for a big protest on January 6 with their own public calls for violence, including executions, as well as an explicit premeditated plan to “surround the capital” [sic].

That’s one reason I find the slight difference in the way this conspiracy got charged to be of interest.

As I’ve been tracking over time, the now-seven militia conspiracies are structured very similarly, with each including coordinated plans to get to DC, some kind of plans to kit out for war, and some coordinated effort to participate in the assault on the Capitol. These conspiracies intersect in multiple ways we know of:

  • Thomas Caldwell’s communication with multiple militia to coordinate plans
  • Kelly Meggs’ formation of an alliance between Florida militias
  • Joe Biggs’ decision to exit the Capitol after the first breach, walk around it, and breach it again with two other Proud Boys in tow just ahead of the Oath Keeper stack
  • The attendance of James Breheny (thus far only charged individually), apparently with Stewart Rhodes (thus far not charged), at a leadership meeting of “multiple patriot groups” in Quarryville, PA on January 3, which Breheny described as “the day we get our comms on point with multiple other patriot groups”

All three militias mingled in interactions they’ve had with Roger Stone, as well, but thus far Stone only shows up in the Oath Keepers’ conspiracy.

In other words, while these represent seven different conspiracies (along with around maybe 15 to 20 identified militia members not charged in a conspiracy), they’re really one networked conspiracy that had the purpose of preventing the democratic replacement of Donald Trump.

Of particular note, what is probably the most serious case of assault charged against a militia member, that charged against Proud Boy Christopher Worrell, has not been included in any conspiracy. So while individual members of these conspiracies — including Joshua James, Dominic Pezzola, and William Isaacs, have been charged for their own physical resistance to cops — the conspiracies as a whole don’t yet hold conspirators accountable for the violence of their co-conspirators. The conspiracies only allege shared responsibility for damage to the Capitol, not violence against cops.

That said, the purpose and structure of the Three Percenter conspiracy is slightly different than the other six. The other six (Oath Keeper, Proud Boy Media, Proud Boy Leadership, Proud Boy Kansas City, Proud Boy North Door, Proud Boy Front Door) are all charged under 18 U.S.C. §371, conspiracy against the US. While the timeline of each conspiracy varies and while some of the Proud Boy conspiracies also include the goal of impeding the police, all six include language alleging the conspirators,

did knowingly combine, conspire, confederate, and agree with each other and others known and unknown, to commit an offense against the United States, namely, to corruptly obstruct, influence, and impede an official proceeding, that is, the Certification of the Electoral College vote, in violation of Title 18, United States Code, Section 1512(c)(2).

The purpose of the conspiracy was to stop, delay, and hinder the Certification of the Electoral College vote.

That is, those six conspiracies are charged (at least) as a conspiracy to violate the obstruction statute.

The Three Percenter SoCal conspiracy, however, is charged under the obstruction itself, 18 U.S.C. §1512(k).

Between December 19, 2020 and January 6, 2021, within the District of Columbia and elsewhere, the defendants … together with others, did conspire to corruptly obstruct, influence, and impede an official proceeding, to wit: the Certification of the Electoral College vote.

The object is the same — to impede the vote certification. But it is charged differently.

I’m still thinking through what the difference might mean. It might mean nothing, it might reflect the preference of the prosecutors, or it may reflect a rethinking at DOJ.

Nick Smith claims there’s no evidence Ethan Nordean corruptly influenced anyone else to violate their duty

But there are two things that may factor into it. First, since the government first started structuring its conspiracies this way, some defense attorneys have started challenging the applicability of the obstruction statute to the vote certification at all. For this discussion, I’ll focus on the argument as Nick Smith laid it out in a motion to throw out the entire indictment against Ethan Nordean. Smith makes two arguments regarding the conspiracy charge.

First, Smith argues that Congress only intended the obstruction statute to apply to proceedings that involve making factual findings, and so poor Ethan Nordean had no way of knowing that trying to prevent the vote certification might be illegal.

As indicated above, § 1512(c)(2) has never been used to prosecute a defendant for the obstruction of an “official proceeding” unrelated to the administration of justice, i.e., a proceeding not charged with hearing evidence and making factual findings. Moreover, there is no notice, much less fair notice, in § 1512(c)(2) or in any statute in Chapter 73 that a person may be held federally liable for interference with a proceeding that does not resemble a legal tribunal.

Of course, that argument ignores that Ted Cruz and the other members who challenged the vote claim they were making factual findings — so Nordean’s co-conspirators may sink this legal challenge.

Smith also argues that the obstruction charge fails under the findings of US v. Poindexter, in which John Poindexter’s prosecution for lying to Congress about his role in Iran-Contra was reversed, in part, because the word “corruptly” as then defined in the obstruction statute was too vague to apply to Poindexter’s corrupt failure to do his duty. Smith argues that the language remains too vague based on his claim that the government is trying to prosecute Nordean for his “sincerely held political belief that the 2020 presidential election was not fairly decided,” which prosecutors have no business weighing.

Here, the FSI’s construction on § 1512(c)’s adverb “corruptly” fails this Circuit’s Poindexter test. First, the FSI does not allege that Nordean obstructed the January 6 joint session “to obtain an improper advantage for himself or someone else. . .” Poindexter, 951 F.2d at 386. Instead, it contends he allegedly obstructed the session in support of the sincerely held political belief that the 2020 presidential election was not fairly decided. Such an interpretation of § 1512(c) is unconstitutionally vague because it leaves to judges and prosecutors to decide which sincerely held political beliefs are to be criminalized on an ad hoc basis. Dimaya, 138 S. Ct. at 1223-24. Second, the FSI neither alleges that Nordean influenced another person to obstruct the January 6 proceeding in violation of their legal duty, nor that Nordean himself violated any legal duty by virtue of his mere presence that day.

As I noted in my post on this challenge, this might be a nifty argument for a defendant who hadn’t — as Nordean had — started calling for revolution on November 27,  well before the state votes were counted. But Nordean had already made his intent clear even before the votes were counted, so Smith’s claims that Nordean was reacting to the election outcome is fairly easily disproven. (As with this entire challenge, it might work well for other defendants, but for a long list of reasons, it is far less likely to work with Nordean.)

There’s another, far more important, aspect to this part of the argument though. Smith claims, without any discussion, that Nordean didn’t “influence” any other person to violate their legal duty. Smith wants Judge Timothy Kelly to believe that Nordean did not mean to intimidate Congress by assembling a violent mob and storming the Capitol and as a result of intimidation to fail to fulfill their duty as laid out in the Constitution, whether by refusing to certify Joe Biden as President, or by running away in terror and simply failing to complete the task.

Unlike conspiracy, obstruction has a threat of violence enhancement

As I understand it (and I invite actual lawyers to correct me on this), the other difference between charging this conspiracy under 18 USC 371 and charging it under 1512(k) is the potential sentence. While defendants can be sentenced to 20 years under their individual obstruction charges (the actual sentence is more likely to be around 40 months, or less if the defendant pleads out), 18 USC 371 has a maximum sentence of five years.

If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.

But 18 USC 1512(k) says that those who conspire to obstruct shall be subject to the same penalty as they’d face for the actual commission of the offense.

(k)Whoever conspires to commit any offense under this section shall be subject to the same penalties as those prescribed for the offense the commission of which was the object of the conspiracy.

And obstruction has special penalties tied to murder, attempted murder, and the threat of physical force.

(3) The punishment for an offense under this subsection is—
(A) in the case of a killing, the punishment provided in sections 1111 and 1112;
(B) in the case of—
(i) an attempt to murder; or
(ii) the use or attempted use of physical force against any person;
imprisonment for not more than 30 years; and
(C) in the case of the threat of use of physical force against any person, imprisonment for not more than 20 years.

Thus, anyone charged along with a co-conspirator who threatened to kill someone may be exposed to twenty or even thirty years in prison rather than just five years.

As noted, there are several things about the overt acts charged in the Three Percenter conspiracy that differentiate it from the other militia conspiracies. They were even more explicit about their intent to come armed to the Capitol than the Oath Keepers were with their QRF (and their stated excuses to be armed relied even less on what I call the Antifa foil, the claim they had to come armed to defend against people they fully planned to incite).

And Hostetter twice publicly threatened to execute people. He posted a YouTube on November 27 in which he said, “some people at the highest levels need to be made an example of with an execution or two or three.” And he gave a speech on December 12 in which he demanded, “There must be long prison terms, while execution is the just punishment for the ringleaders of the coup.”

In other words, I think by charging this conspiracy under the obstruction statute rather than the conspiracy one, the government has exposed all of Hostetter’s co-conspirators, along with Hostetter himself, to far longer sentences because he repeatedly threatened to execute people.

The Three Percenter conspiracy makes threats to intimidate Mike Pence and members of Congress an object of the conspiracy

My guess is that the government is going to argue that, of course, Nordean was trying to corruptly influence others to violate their legal duty to certify the electoral results. Every single militia includes at least one member who made explicit threats against Mike Pence or Nancy Pelosi, and the Proud Boys, especially, have no recourse by claiming they showed up to listen to Donald Trump, since instead of attending his speech, they were assembling a violent mob to march on the place where Mike Pence was going to enact his official duties.

The Proud Boys were there to intimidate Mike Pence and members of Congress in hopes they would fail to fulfill their duty as laid out in the Constitution. If these charges make it to trial, I think prosecutors will be able to make a very compelling argument that assembling a mob in anticipation of Pence’s official acts was designed to intimidate him corruptly.

But, if I’m right about the criminal penalties, with the Three Percenter conspiracy, the government is going one step further. This conspiracy is structured to hold each member of the conspiracy accountable for the threats of murder made by Hostetter, the threat posed by planning to be armed at the Capitol, as well as the violence of others in their networked conspiracy. And even for those who didn’t enter the Capitol but instead egged on violence from some rally stage or behind some bullhorn, this conspiracy seems to aspire to expose co-conspirators accountable to a twenty year sentence for their (unsuccessful) efforts to intimidate Mike Pence to renege on his duty.

Update: I should add that someone with no prior convictions who goes to trial and is found guilty would face closer to 7-9 years with a full threats of violence enhancement. It would not be the full 20 years.

Update: Thanks to harpie for helping me count to seven (I had the wrong total number originally).

Crystalizing Conspiracies: Fourth Superseding, James Breheny, Puma’s GoPro, [Redacted], and the Willard Hotel

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Since I’ve acquired new readers with my January 6 coverage and since the financial stress of COVID is abating for many, it seems like a good time to remind people this is not a hobby: it is my day job, and I’d be grateful if you support my work.

In this post, I used the imminent guilty plea of Paul Allard Hodgkins to illustrate that we really don’t know what evidence of conspiracy prosecutors are looking at, which means that we can’t really say whether the January 6 investigation will ultimately hold those who incited the violence accountable. I explained how a PhD in Comp Lit might be useful training to see the gaps in prosecution filings that show what secrets they’re holding in abeyance. And, as I further explained, if those most responsible for January 6 are going to be held accountable, it will likely be (at least in part) via conspiracies with the Oath Keepers and Proud Boys, including the multiple ties Roger Stone has with both militias.

This post is meant to be read in tandem with that one.

This one will look at four developments in the case against the Oath Keepers in the last week or so.

The superseding indictment turns the screws

Most spectacularly, the government rolled out a fourth superseding Oath Keeper indictment yesterday. The ostensible purpose of it was to add four new defendants: Joseph Hackett, Jason Dolan, and William Isaacs, all from Florida, along with a fourth, accused of just three crimes, whose name is redacted.

The indictment broadens the kinds of communications used to communicate during the conspiracy, including Signal along with Zello, as well as orders to write key details in cursive, then send them via Proton Mail.

It adds a comment Stewart Rhodes made on November 9 laying out what I’ll call the “Antifa foil” — an affirmative plan, laid out months before the insurrection, to use the “threat” of Antifa as the excuse to come armed and a means to foment violence.

At a GoToMeeting5 held on November 9, 2020, PERSON ONE told those attending the meeting, “We’re going to defend the president, the duly elected president, and we call on him to do what needs to be done to save our country. Because if you don’t guys, you’re going to be in a bloody, bloody civil war, and a bloody – you can call it an insurrection or you can call it a war or fight.” PERSON ONE called upon his followers to go to Washington, D.C., to let the President know “that the people are behind him.” PERSON ONE told his followers they needed to be prepared to fight Antifa, which he characterized as a group of individuals with whom “if the fight comes, let the fight come. Let Antifa – if they go kinetic on us, then we’ll go kinetic back on them. I’m willing to sacrifice myself for that. Let the fight start there. That will give President Trump what he needs, frankly. If things go kinetic, good. If they throw bombs at us and shoot us, great, because that brings the president his reason and rationale for dropping the Insurrection Act.” PERSON ONE continued, “I do want some Oath Keepers to stay on the outside, and to stay fully armed and prepared to go in armed, if they have to . . . . So our posture’s gonna be that we’re posted outside of DC, um, awaiting the President’s orders. . . . We hope he will give us the orders. We want him to declare an insurrection, and to call us up as the militia.” WATKINS, KELLY MEGGS, HARRELSON, HACKETT, PERSON THREE, PERSON TEN, and others known and unknown attended this GoToMeeting. After PERSON ONE finished speaking, WATKINS and KELLY MEGGS asked questions and made comments about what types of weapons were legal in the District of Columbia.

The indictment provides more evidence of a plan to have Oath Keepers from North Carolina stationed as a Quick Reaction Force to pick up weapons from one of two locations in DC and deliver them to others already there (a recent filing arguing Thomas Caldwell needs to keep informing pretrial services of his movements included surveillance video from the Ballston Comfort Inn of the conspirators carrying around presumed guns draped in sheets).

On the evening of January 2, 2021, at about 5:43 p.m., KELLY MEGGS posted a map of Washington, D.C., in the Leadership Signal Chat, along with the message, “1 if by land[,] North side of Lincoln Memorial[,] 2 if by sea[,] Corner of west basin and Ohio is a water transport landing !!” KELLY MEGGS continued, “QRF rally points[.] Water of the bridges get closed.”

[snip]

On January 4, 2021, CALDWELL emailed PERSON THREE several maps along with the message, “These maps walk you from the hotel into D.C. and east toward the target area on multiple roads running west to east including M street and P street, two of my favorites . . . .”

[snip]

On January 4, 2021, WATKINS wrote in the Florida Signal Chat, “Where can we drop off weapons to the QRF team? I’d like to have the weapons secured prior to the Op tomorrow.”

On the morning of January 5, 2021, HARRELSON asked in the Florida Signal Chat for the location of the “QRF hotel,” and KELLY MEGGS responded by asking for a direct message.

It provides more details about what the Oath Keepers did in the Capitol (including descriptions of how the kitted out veterans folded — retreated — as soon as they were hit with some tear gas).

When officers responded by deploying a chemical spray, the mob—including CROWL, WATKINS, SANDRA PARKER, YOUNG, and ISAACS—retreated.

[snip]

JAMES briefly breached the Rotunda but was expelled by at least one officer who aimed chemical spray directly at JAMES, and multiple officers who pushed him out from behind.

Importantly, the superseding indictment adds civil disorder charges against six of the Oath Keepers for interactions they had with cops inside the Capitol. It adds an assault charge against Joshua James for his physical interaction with cops. It adds obstruction charges against Kelly Meggs, Kenneth Harrelson, and James for deleting comms. Some of these charges were expected; it’s just that adding four new defendants was a convenient time to add them.

As these defendants are sitting here, though, their legal jeopardy is getting worse. Which is likely part of the point. They might stave off any further charges if they decide to cooperate with prosecutors.

When the government first charged this conspiracy, they were way over their skis, with detention requests and claims of danger that they did not yet have (or were not yet willing to show) evidence to support. That’s no longer true, and I wouldn’t be surprised if the government tries to detain a few more of these defendants when they are arraigned on the new charges this week.

James Breheny’s inter-militia network

One of the interesting details of this indictment is the exclusion of Oath Keeper James Breheny from it. Unlike the Proud Boys, all the Oath Keepers have been charged on one conspiracy indictment. The sole exception is Jon Schaffer, who from very early on was cultivated to flip, which he did on April 16. Remarkably, it’s not clear that Schaffer’s cooperation shows up in the new superseding indictment.

Now Breheny joins Schaffer in being charged (at least for now) on his own, which means, as of now, he’s only on the hook for his own crimes, not those of 16 co-conspirators. Breheny is an Oath Keeper from New Jersey who self-surrendered (suggesting ongoing discussions involving a lawyer) on May 20.

Breheny’s charging documents are interesting on several points. First, the affidavit excerpts a post Stewart Rhodes published on December 14, calling on Trump to invoke the Insurrection Act, including this paragraph:

You must act NOW as a wartime President, pursuant to your oath to defend the Constitution, which is very similar to the oath all of us veterans swore. We are already in a fight. It’s better to wage it with you as Commander-in-Chief than to have you comply with a fraudulent election, leave office, and leave the White House in the hands of illegitimate usurpers and Chinese puppets. Please don’t do it. Do NOT concede, and do NOT wait until January 20, 2021. Strike now.

This Rhodes post doesn’t appear in the Oath Keeper conspiracies, though it is a continuation of the November 9 comment from Rhodes also calling for insurrection, and it provides context for a comment he made on January 6 about what he expected Trump to do.

Then, Breheny’s complaint describes him inviting Rhodes to “a leadership meeting of ‘multiple patriot groups'” in Quarryville, PA on January 3, 2021. His invite directed Rhodes not to bring a phone and explained,

This will be the day we get our comms on point with multiple other patriot groups, share rally points etc. This one is important and I believe this is our last chance to organize before the show. This meeting will be for leaders only.

Breheny’s complaint also explains that Rhodes only added Breheny to the leadership list for the Oath Keepers on January 6. In explaining that detail, a footnote explains,

numerous individuals affiliated with the Oath Keepers who have been alleged to have participated in the riots participated in this chat and have been indicted in US v. Caldwell et al, 21-cr-28-APM.

It’s a neat way of saying that Breheny conspired with those charged in the main Oath Keepers conspiracy and they conspired with him, without charging him in that conspiracy.

The rest of the complaint explains how Breheny lied to the FBI about what he did on January 6, but after the government got a warrant for his phone, they obtained pictures and texts showing he had done far more on January 6 than he admitted to cops, including fighting his way in the East Doors that all the other Oath Keepers entered.

The government has been selective about whom they’re charging with obstruction for lying and deleting evidence, but their case that Breheny deliberately attempted to obstruct the investigation is quite strong.

Anthony Puma’s GoPro is arrested

On May 27, a guy from Michigan named Anthony Puma was arrested, more than four months after the FBI interviewed him on January 14 and after, on January 17, he shared the SD card from the GoPro he wore on January 6.

On April 23, the government obtained Puma’s Facebook account, which provided video and text evidence that, in his January 14 interview, Puma dramatically downplayed his knowledge of events on January 6. Most notably, they found texts he posted on January 5, knowing that, and precisely when, “we are storming” the Capitol the next day.

Tomorrow is the big day. Rig for Red. War is coming

We are here. What time do we storm the House of Representatives?

Hopefully, we are storming the House of Representatives tomorrow at 100 pm.

There’s no hint in his charging documents that Puma has association with the Oath Keepers. Assuming he does not, it seems likely he was arrested, as I believe a number of other recent defendants were, so he can be forced to authenticate the important video evidence he shot on the day of the insurrection.

As a Comp Lit PhD who had to read a fuck-ton of postmodern theory, my favorite picture from his GoPro shows him filming himself shooting a video on his phone as he approached the Capitol.

But there are two other clips that I suspect are more important — one, showing what I believe to be a second stack of likely Oath Keepers preparing to breach the Capitol.

And another, showing presumed Oath Keepers on their golf cart race from the Willard Hotel to reinforce the Capitol, calling out, “We are inside, they need help, we’ve breached the Capitol.”

So whether or not Puma has a tie to the Oath Keepers, he now has reason to cooperate with prosecutors on making this video available for any trial.

[Redacted]

As noted, there were four people added to the Oath Keepers conspiracy indictment, but the name of one remains redacted.

It can’t be Roger Stone, as a lot of people are wishing, because Stone’s not an Oath Keeper.

But whoever [redacted] is, he almost certainly traveled with Roberto Minuta and Joshua James from the Willard Hotel where they were “guarding” Roger Stone and others to the Capitol.

I say that because of four paragraphs from the third superseding indictment describing the golf cart race to the Capitol, three are redacted in the fourth.

That doesn’t necessarily mean that [redacted] has had a child with Roger Stone or anything as exciting as that. It does mean that someone who was a likely witness to what happened on the Willard Hotel side of phone calls between Person Ten (who was the ground commander for the Oath Keepers that day) and James has been added to the conspiracy.

[redacted] appears to have entered the Capitol with Minuta and James, as what had been ¶104 describing their entrance “together with others known and unknown” in the third superseding is redacted as ¶154 in the fourth.

But the potentially more interesting actions of [redacted] appear in ¶¶76 and 77, which explain pre-insurrection communications and planning, as well as ¶99, which must explain what [redacted] did the morning of the insurrection, probably with James and Minuta. And ¶102 likely describes what the three of them were doing at the Willard Hotel while everyone else started breaching the Capitol.

As I said in this post, it takes more than four months to charge a complex conspiracy. But these four developments together add a December call for insurrection (in tandem with events that day in DC), places the Oath Keepers — including Stewart Rhodes — in a January 3 meeting coordinating with other militias, and it seemingly adds a third witness to what went on in the Willard Hotel the morning of the insurrection.