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

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.

How Did the Proud Boys Have Better Lines of Communication about National Guard Reinforcements than the National Guard Did?

At 3:38 on January 6, according to the Proud Boy leaders conspiracy indictment, Charles Donohoe announced on the 60-member operational Telegram channel the Proud Boys used that day that, “we are regrouping.”

Sometime around that time, a bunch of Oath Keepers, having already entered the Capitol, were gathered together on the east side of the Capitol.

According to the most recent Oath Keepers indictment, two minutes after Donohoe announced the Proud Boy plan to regroup, at 3:40, Oath Keeper Joshua James called Person Ten — who was doing much of the coordination for the Oath Keepers that day — and had a 3 minute, 4 second phone call, their second longest call described in the indictment.

Roberto Minuta and Rhodes exchanged two calls just after 4:00 — 42 seconds, then 2 minutes 56 seconds. At 4:10, according to a Thomas Caldwell detention motion, someone on the Oath Keepers’ operational channel said, “Fight the good fight. Stand your ground.”

It seems the militias were preparing for a second, seemingly coordinated, operation of the day: resuming the assault on the Capitol.

Indeed, some of the fighting and attempted breaches at the Capitol did intensify about that time (for example, that’s shortly before, as some cops were trying to help Rosanne Boyland, who had been trampled, they were allegedly assaulted by James Lopatic, Jeffrey Sabol, Peter Stager, and Wade Whitten, with police officer BW being dragged down the steps prone and beaten).

But not the militias, at least not the Proud Boys.

According to the government’s detention memo for Donohoe, he subsequently — they don’t provide the time — sent out a message that the National Guard and DHS agents were incoming.

Donohoe’s intent to create mayhem and disrupt the proceedings at the Capitol continued well after the initial breach into the restricted grounds and up to the west terrace. Indeed, at 3:38 p.m., more than an hour after Pezzola and others had broken into the building, Donohoe indicated that he had left the Capitol grounds, but then announced over Telegram, “We are regrouping with a second force.” That plan appears to have been short-lived, as Donohoe subsequently advised the group that the National Guard and “DHS agents” were “incoming.”

This is fairly remarkable timing, as it came during the most inexplicable period of DOD’s delayed response with the National Guard. At 2:30, just before the second breach by militia-led groups, Acting Defense Secretary Christopher Miller met with (among others) Army Secretary Ryan McCarthy about requests for help from the city and the Capitol Police. At 3, Miller determines the Guard is needed at the Capitol and McCarthy orders them to prepare to move. At 3:04, Miller provides verbal approval for the Guard to support MPD. At 3:19 and 3:26, McCarthy was on the phone with first Chuck Schumer and Nancy Pelosi and then Bowser, assuring them the Guard was on the way. At 3:48, McCarthy leaves to go to MPD headquarters, taking 22 minutes to transit, even as two trained militia groups full of military veterans prepared to make a second assault on the Capitol. At 4:32, after calls back and forth among the militia, Miller provided verbal authorization for the Guard to help the Capitol Police.

Tick tock, tick tock, tick tock.

But then, according to the guy DOD sent to the Senate to not answer questions like this, Robert Salesses, General William Walker, the guy in charge of the Guard, didn’t get that order for another 36 minutes.

Salesses: In fairness to General Walker too, that’s when the Secretary of Defense made the decision, at 4:32. As General Walker has pointed out, cause I’ve seen all the timelines, he was not told that til 5:08.

Roy Blunt: How is that possible, Mr. Salazar [sic], do you think that the decision, in the moment we were in, was made at 4:32 and the person that had to be told wasn’t told for more than a half an hour after the decision.

Salesses: Senator, I think that’s an issue.

Tick tock, tick tock, tick tock.

Somehow, it seems, Proud Boy Charles Donohoe knew that the National Guard was coming to reinforce the Capitol before DC Guard Commander General Walker.

Somehow, it seems, the militias assaulting the Capitol had better lines of communication than the US Department of Defense.

Timeline

2:30PM: Acting Secretary of Defense Christopher Miller and Army Secretary Ryan McCarthy meet to discuss the requests for assistance from the MPD and CPD.

2:40PM: Oath Keepers and Proud Boys breach second front of the Capitol.

3PM: Miller determines the Guard is needed.

3:04PM: Miller authorizes Guard assistance to MPD.

3:19PM: McCarthy on the phone with Democratic leaders. Roberto Minuta enters Capitol.

3:26PM: McCarthy on the phone with Mayor Bowser.

3:38PM: Charles Donohoe announces, “we are regrouping.”

3:40PM: James calls Person Ten, speaks for 3:04.

3:48PM: McCarthy leaves for MPD.

4PM: Meeting with Stewart Rhodes on east side of Capitol.

4:04PM: Minuta calls Rhodes, speaks for 42 seconds.

4:05PM: Rhodes calls Minuta, speaks for 2:56.

4:10PM: McCarthy arrives at MPD. Proud Boy leader channel instructs, “Stand your ground.”

4:32PM: Miller provides the verbal order for the Guard to reinforce the Capitol Police

5:08PM: General Walker gets the order to reinforce the Capitol Police

Unknown time: Donohoe advises that National Guard and “DHS” are incoming.

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

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

Many Capitol rioters unlikely to serve jail time

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


Posts attempting to contextualize the investigation

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

The Grand Theft Golf Cart Conspiracy: DOJ Backed Off Charges against Roberto Minuta

Yesterday, DOJ added Roberto Minuta and Joshua James — both of whom provided security to Roger Stone in advance of the insurrection — to the Oath Keepers conspiracy indictment, making a third superseding indictment (S3) against the militia. The showiest part of the indictment describes how Minuta and James rode in golf carts (from where, it doesn’t say, nor does it explain how it knows exactly what Minuta said while on the golf cart escapade) to the Capitol to join in the insurrection.

Between 2:30 and 2:33 p.m., MINUTA, JAMES, and others rode in a pair of golf carts towards the Capitol, at times swerving around law enforcement vehicles, with MINUTA stating: Patriots are storming the Capitol building; there’s violence against patriots by the D.C. Police; so we’re en route in a grand theft auto golf cart to the Capitol building right now … it’s going down, guys; its literally going down right now Patriots storming the Capitol building … fucking war in the streets right now … word is they got in the building … let’s go.

At about 2:33 p.m., MINUTA, JAMES, and the others in their group parked the golf carts near the intersection of Third Street and Pennsylvania Avenue, Northwest. They then continued on foot towards the Capitol.

But the golf cart vignette is not the most interesting detail in the S3 indictment. The additions on the most recent superseding indictment (S2) are interesting for what the government did and did not add with the inclusion of the two Oath Keepers who were not part of The Stack that breached the Capitol, Minuta and James.

The crimes not charged

In spite of Minuta’s self-description, the government did not charge Minuta with Grand Theft Golf Cart. It’s never actually explained where they got the carts, but the Oath Keepers had been using carts as part of their protection detail for people like Roger Stone. If they used golf carts owned or rented by Stop the Steal or some other organizer for the rally, however, it might implicate those owners in the conspiracy if they didn’t report the golf carts as being stolen as part of an effort to breach the Capitol.

But Grand Theft Golf Cart is only the beginning of crimes not charged against the newest additions to the conspiracy.

In the complaint against Minuta, the government had shown probable cause that Minuta obstructed the investigation by deleting his Facebook account on January 13.

Finally, on January 13, 2021, the week after he attacked the Capitol and after much media reporting on law enforcement’s investigation to bring the Capitol rioters to justice, Minuta deleted his Facebook account of over thirteen years.

[snip]

Evidence also demonstrates that one week after he participated in forcibly storming the Capitol, Minuta deleted a Facebook account he had maintained for 13 years to conceal his involvement in these offenses.

[snip]

On January 6, 2021, the FBI opened an investigation into the attack on the Capitol, and a grand jury of the United States District Court for the District of Columbia subsequently opened an investigation. Within the first week of the investigation, a number of subjects were arrested and many more subjects’ photographs were shared over the Internet by both the FBI and regular citizens who took it upon themselves to publicize and seek information about the Capitol attackers.

Records indicate that Roberto Minuta opened a Facebook account associated with phone number XXX-XXX-4147 (known to be associated with Minuta) on November 24, 2007. On January 13, 2021—one week after Minuta and others attacked the Capitol on January 6— Minuta deleted his account.

From the first iteration of this conspiracy indictment, the government had charged others for deleting their Facebook accounts — first Thomas Caldwell, and then Graydon Young. So it would have followed the pattern already set to include a Count 7 against Minuta for his deletion of Facebook.

It’s not in there.

But that’s not the only crime not charged.

The complaint against Minuta focused closely on his taunts against cops in the minutes before The Stack arrived (the government may suspect that Minuta did this to occupy the police while insurrectionists breached the Capitol from the west side, to ensure officers guarding the east side of the building could not go assist those being overrun on the west side).

The indictment adds this further interaction between the cops and Minuta.

At 3:15 p.m., inside the Capitol building, MINUTA and JAMES pushed past U.S. Capitol Police Officers who physically placed their hands on MINUTA and JAMES in an unsuccessful attempt to stop them from progressing toward the Capitol Rotunda.

Other January 6 defendants (not part of this Oath Keeper conspiracy) got charged with obstructing the police during a civil disorder for such physical interactions. Not Minuta and James.

Minuta and James got charged, along with the other members of the conspiracy, with one (but not both) of the trespassing charges used against virtually all the January 6 defendants. But Minuta entered the Capitol with a holster of bear spray (visible on his hip in the picture above). Others who entered the Capitol similarly armed had an enhancement added for carrying a deadly weapon, an enhancement that increases the potential sentence to 10 years. Minuta was not similarly charged (meaning, too, that the Oath Keepers who conspired with him were not charged with abetting his armed entry to the Capitol).

Finally, all the other conspirators, including Thomas Caldwell (who never entered the Capitol and was on the other side of it from where The Stack entered) were charged with abetting the destruction of the Capitol door through which The Stack entered. This is the charge that counts as a crime of violence for detention purposes, and also can merit (and is being treated as meriting, for the Proud Boy conspiracy cases) a terrorism enhancement. But neither Minuta nor James were charged with it, even though the indictment notes they entered the same door that The Stack went through.

At 3:15 p.m., inside the Capitol building, MINUTA and JAMES, together with others known and unknown, forcibly entered the Capitol building through the same east side Rotunda doors through which members of the stack had entered about 25 minutes earlier.

It’s unclear why DOJ wouldn’t treat Minuta and James the same way they treated Caldwell (and Kenneth Harrelson, who went in with The Stack but not part of it). I can think of several possible explanations. But they didn’t, which is notable (particularly in the wake of the DC Circuit decision that led to the release of Zip Tie Guy Eric Munchel and his mother).

In short, if Minuta (and James) were treated the same way other January 6 defendants were, they would be facing significantly more serious charges and significantly more prison time. They’re not.

One other, potentially related detail: The complaint that Minuta was charged with — which was obtained on February 24 but not executed until weeks later, seemingly in conjunction with the Joshua James arrest — is titled, “Affidavit in Support of Complaint Minuta (non conspiracy) 2021 02 23,” almost as if at that point DOJ wasn’t sure whether they were going to treat him separately from the rest of the Oath Keepers or not. They appear to have decided to do so, and along the way, thereby limit his potential criminal exposure.

Who is Person Ten and what role did he play with Stewart Rhodes?

Minuta and James complaints included new details about the role of Oath Keepers heard, Stewart Rhodes, described as Person One in all the Oath Keeper filings. Their addition to the conspiracy effectively added more on Rhodes to the conspiracy indictment.

At least as interestingly, the S3 indictment added a Person Ten. Minuta had been Person Five in the James complaint, it’s not clear who Person Four is, and Persons Six, Seven, Eight, and Nine are not described at all, but — along with Person Ten — are likely some of the people in this picture.

Rhodes paid for Person Ten’s hotel room in the Hilton Garden Inn in DC, but Person Ten arrived the day before Minuta and Rhodes, who also stayed at the Hilton Garden Inn in Vienna.

Curiously, the S3 indictment leaves out some key communications, especially those from a leadership Signal chat that showed up in earlier filings. Between a Caldwell detention motion, a Watkins detention motion, James’ complaint, and the superseding indictment, this partial list of known Oath Keepers communications suggest that Person Ten might be the person coordinating deployments that day. Consider two details from the partial list of the known communications among Oath Keepers below (I’ll update this later, once I catch up on the week of filings).

Highlighted in yellow, Person Ten has a series of calls back and forth with Joshua James, pre-Golf Cart Grand Theft. Right in the middle of it all, someone — not described in this indictment — informs the Signal group as a whole that “the[y] have taken ground” and “we need to regroup any members who are not on mission.” Shortly thereafter, James and Minuta launch the Grand Theft Golf Cart to get to the Capitol, where Minuta taunts the police, preventing them from moving to reinforce the overrun Capitol on the other side, and the members of The Stack leave Trump’s speech prematurely and go to the Capitol. That is, Person Ten calls for reinforcements (Rhodes repeats his Signal text), and then Minuta and James in the golf carts and The Stack converge on the northeast side of the Capitol to breach a new entry point.

Now consider the pink highlight: Unless the government or I have made a mistake in the timing, Person Ten and Kelly Meggs are both on the phone with Stewart Rhodes together. Because of the length of Person Ten’s calls, it overlaps entirely with Rhodes’ call with Meggs (which — again, unless there’s an error of timing — means Rhodes either has two phones or either via conferencing or a hold, had both on the same phone at the same time).

In either case, Person Ten seems to have a key role as a communication pivot between different groups of Oath Keepers.

The communications not included

Finally, consider this: I have not included all known texts in the table above (most obviously missing are Watkins’ Zello texts). But after suggesting strong ties between James and Minuta, the government has included none of their multiple communications, neither on January 6 nor before that, in the superseding indictment. Similarly, the government has left out the Signal chats showing minute to minute deployments as the Oath Keepers launched a second front on the Capitol.

All these communications are tantalizing and hint at a good deal more coordination during the insurrection. And remember: Both Minuta and James were with Roger Stone for part of the day (earlier in the day, I think). But the government is still including just a fraction of the communications it knows about.

Update: Correct that the indictment said Minuta and James rode in the golf carts, didn’t drive and that the Meggses stayed at a different Hilton Garden than Rhodes and Minuta and Person Ten. Thanks to BB.

Update: I want to make clear that the reasons why DOJ backed off charges with Minuta may not all stem from the same reason, nor does this necessarily indicate he is cooperating. For example, in the wake of the DC Circuit decision in Munchel, the chances that DOJ could get pre-trial detention for either Minuta or James, are much lower. So charging them with abetting the damage doesn’t serve an investigative purpose at this time. And it’s possible after they seized Minuta’s phone, they discovered something to indicate he had deleted Facebook in response to Facebook’s decision to shut down Trump on the platform. To be honest, Minuta and James are an odd fit for this conspiracy as currently laid out, which suggests it’s likely to change in the near future.

The State of the Five Now-Intersecting January 6 Militia Conspiracies

Paragraph 64 of a new conspiracy indictment including Proud Boys Ethan Nordean, Joe Biggs, and the newly arrested Proud Boys Zachary Rehl and Charles Donohoe includes a seemingly gratuitous reference to the Oath Keepers. The paragraph describes how Biggs, after having entered the Capitol once already from the northwest side, then moved to the opposite side of the building and forced his way in on the east side. He did so right in front of a group of Oath Keepers.

Thirty minutes after first entering the Capitol on the west side, BIGGS and two other members of the Proud boys, among others, forcibly re-entered the Capitol through the Columbus Doors on the east side of the Capitol, pushing past at least one law enforcement officer and entering the Capitol directly in front of a group of individuals affiliated with the Oath Keepers.

This would have been around 2:44 PM. The Oath Keeper “stack” went in the east side of the Capitol at around 2:40.

That reference, along with the common use of the Zello application, brings two parallel conspiracies laid out over a month ago closer together, arguably intersecting. As of right now, DOJ has charged 25 people in five different conspiracy indictments, four of which share precisely the same goal: to stop, delay, and hinder Congress’s certification of the Electoral College vote, with many similar means and methods. Three conspiracy indictments also share roughly the same goal of obstructing law enforcement. Those indictments are:

Here’s what a simplified version of the five different conspiracies looks like:

This is not the end of it: there are three Oath Keepers not included in that conspiracy, and a random bunch of Proud Boys who might eventually be included, as well as anyone else who coordinated this effort [wink]. But these conspiracy indictments will remain separate only for prosecutorial ease. They are, for all intents and purposes, now-intersecting conspiracies.

Update: Last night, NYT’s visual team released new videos showing that the Oath Keepers Stack was involved in forcing entry into the East entrance of the Capitol. These videos depict what happened moments after Biggs reentered the Capitol, as described above.

Update: To see how the other pieces of any coordinated action fit, I will list the other Oath Keepers and Proud Boys that have played a part in this operation.

Oath Keepers

Stewart Rhodes: The Oath Keeper President. He is not charged, but implicated in the existing Oath Keepers indictment and the Minuta complaint.

Roberto Minuta: Minuta was arrested on March 8. An SDNY Magistrate judge released him on bail (he almost put up silver bars for his security, but ended up coming up with the money itself), ignoring the government request he stay the order. Minuta’s arrest affidavit–which was written 12 days before James’ but executed roughly the same day–focuses primarily on Minuta’s harassment of cops. It doesn’t mention, as James’ affidavit does, Minuta’s role in providing security, including for Roger Stone. Minuta also deleted his Facebook account on January 13, for which he was charged with obstruction.

Joshua James: James was arrested on March 9 and held without bail (in part because of a past arrest associated with claiming to be a military police officer in 2011). His arrest affidavit makes it clear he was a close contact with Minuta as well as Kelly Meggs. The affidavit repeatedly describes James offering security to VIPs we know to include Roger Stone. According to public reporting, James received payment for his “security” services on January 6, which Stone was publicly fundraising for in advance (then denied spending).

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

Person Four: The James affidavit refers to Minuta as “Person Five.” It uses that number, it says, because “Persons Two [Caldwell’s spouse], Three [the NC-based Oath Keeper who might serve as a Quick Reaction Force], and Four are not included in this affidavit, but are already-numbered individuals associated with United States v. Thomas Caldwell, et al, Case No. 21-cr-28 (APM). To maintain consistent nomenclature, the referenced individual here will be defined as ‘Person Five.'” I haven’t been able to find the reference to Person Four (though it might be Watkins’ partner, references to whom are inconsistent).

Three more Stack participants and four others who operated with Minuta and James on January 6: This image, from James’ complaint, identifies three other Stack members (the second, third, and last yellow arrow) and four others who interacted with James and Minuta during the day on January 6.

Proud Boys

Enrique Tarrio: Tarrio is the head of the Proud Boys, but got arrested as he entered DC on January 4 on charges relating to vandalizing a Black church in December, onto which possession charges were added. He is referred to in all the Proud Boy conspiracies, repeatedly in the Leader one (because they scrambled to figure out what to do after his arrest). While it’s unlikely he was on the Telegram channels used to organize the insurrection, he was in touch with members via other, thus far unidentified channels.

Joshua Pruitt: Pruitt was arrested for a curfew violation on the night of the insurrection. He told the FBI he hadn’t engaged in any unlawful activity and was just trying to deescalate the situation. But he was indicted on his own weeks later for obstructing the vote count and interfering with cops, and abetting the destruction of property, along with trespassing. The Nordean conspiracy indictment notes that he went in the West entrance shortly after Dominic Pezzola breached it (suggesting the government may now know he was part of a cell with Pezzola). Pruitt is being prosecuted by the same prosecutor as on most Proud Boy cases, Christopher Berridge, and before the same judge, Timothy Kelly.

Gabriel Garcia: Garcia, a former Army Captain, appears to have originally been identified by the Facebook order showing who livestreamed from the Capitol. It’s possible his livestreams were intended to serve as live reporting for those coordinating outside (he catches the names of cops, the size of the crowd, and instructs, “keep ’em coming.” He incites a big push through a line of cops. Later, he calls for “Nancy” to “come out and play” and calls to “Free Enrique” [Tarrio]. He was charged by complaint on January 16 and by indictment on February 16 with obstruction and resisting cops during civil disorder. The Nordean conspiracy indictment notes he went in the West entrance shortly after Pezzola breached it.

Christopher Worrell: The government originally charged Worrell, a committed Proud Boy who traveled to DC in vans of Proud Boys paid for by someone else and wore comms equipment, with trespass crimes on March 10. Among his criminal background, he pretended to be a cop to intimidate a woman. He lied in his first interview with the FBI, hiding that he sprayed pepper spray on some police who were the last line of defense on the West side of the Capitol. According to a witness who knows him, he also directed other likely Proud Boys. After first being released, he was subsequently detained and is awaiting indictment on what the government suggests are likely to be assault charges.

Robert Gieswein: Ethan Nordean spoke to Giswein shortly before he and Pezzola launched the attack on the Capitol suggesting that Gieswein, who had known ties to the 3% movement, was coordinating with the Proud Boys that day. Over the course of breaking into the Capitol, he allegedly assaulted 3 cops with a bat or pepper spray, and broke a window to break in. He was first charged on January 16, indicted on January 27. His docket shows none of the normal proceedings, such as a protective order, but his magistrate’s docket shows two sealed documents placed there in recent weeks.

Ryan Samsel: There’s no indication I know of that ties Samsel to the Proud Boys. But he marched with them and initiated the assault on the West side of the Capitol with Dominic Pezzola and William Pepe. He was charged with assault and obstruction on January 29 and arrested on February 3. In his case, he allegedly did so by assaulting a cop at the first line of barriers, knocking her out. He and the government are in talks for a guilty plea.

Ryan Bennett: Bennett was IDed off his own Facebook livestreaming, while wearing a Proud Boys hat, of the event, including his direct witness to the shooting of Ashli Bennett, with his voice yelling “Break it down!” in the background. He was arrested on January 26 and charged in a still-sealed March 17 indictment over which James Boasberg will preside.

Bryan Betancur: Betancur was busted by his Maryland Probation Officer, to whom he had lied about distributing Bibles to get permission to go to DC. He wore a Proud Boys shirt to the insurrection and is a known white supremacist who espouses violence. He was charged with misdemeanor trespass charges. His defense attorney is already discussing a guilty plea.

Daniel Goodwyn: Goodwyn’s online identity is closely associated with the Proud Boys. He was identified via an interview he did with Baked Alaska during the insurrection and texts sent to an associate; he was arrested on January 29. He was originally charged with trespass, with obstruction added in his indictment on February 24. Charles Berridge was originally the prosecutor on this case but has been replaced on it.

Christopher Kelly: Kelly revealed on Facebook before he headed to DC that he would be going with, “ex NYPD and some proud boys.” While inside, he bragged that they had “stopped the hearing, they are all headed to the basement.” He was originally charged with trespass and obstruction on January 20; he has yet to be (publicly) indicted yet. He has the same defense attorney, Edward McMahon, as Nicholas Ochs.

Around 40 other people who used the Proud Boys “Boots on the Ground” Telegram channel: As I noted here, the government must have at least monikers for — and likely email and/or device identifiers — for around 40 people who used the organizing channel set up less than a day before the operation. It will be interesting to see if they attempt to track all of them down.

Rolling Updates:

Marc Bru, a Proud Boy with ties to Nordean, was charged on March 9.

Paul Rae, a Proud Boy from Florida who trailed Biggs both times he entered the Capitol.

Arthur Jackman: a Proud Boy from Florida who trailed Biggs both times he entered the Capitol, including into the Senate.

 

Thomas Caldwell’s “Storming the Castle” Ploy Succeeds

Judge Amit Mehta just released Thomas Caldwell to home confinement in the Oath Keeper conspiracy case.

Caldwell’s attorney, David Fischer, made some easily rebuttable arguments about Caldwell’s honesty, which I’ll return to. Fischer also tried to convince Judge Mehta that Caldwell was operating out of a sincere belief that he was defending against Antifa, not arming against the US government; I’ll return to that too (Judge Mehta had no patience for that ploy). While Mehta did come away believing Caldwell had been more cooperative than prosecutors had suggested, that’s not why he released Caldwell.

It’s important background, that in Fischer’s motion to reconsider Caldwell’s detention dismissed several references Caldwell made to “storming” the Capitol as an allusion to the fictional narrative of The Princess Bride.

Some of the lines that the Government cites in its papers are straight from Hollywood. The best example is “storming the castle” and “I’m such an instigator.” These are classic lines from the 1980s classic movie The Princess Bride.

Fischer suggested Caldwell’s own use of the same word everyone else used to describe assaulting the Capitol was just fiction.

The claim is important because the key reason that Caldwell got bailed is because of a feint that Fischer made in his motion for reconsideration. He argued that there is no evidence that Caldwell planned in advance to storm the Capitol.

On January 6th, at the urging of former President Donald J. Trump, hundreds of thousands of disgruntled, patriotic Americans came to Washington to protest what they viewed as an unfair election. Caldwell joined this protest to exercise his First Amendment right, a right he defended for 20 years in military service. Caldwell absolutely denies that he ever planned with members of the Oath Keepers, or any other person or group, to storm the Capitol. Caldwell absolutely denies that he obstructed justice. 3 The word of a 20-year military veteran with no prior criminal record is evidence, and it is strong evidence, of his innocence.

[snip]

In short, despite having an army of federal agents working around the clock intensively investigating for almost three months, the Government has not provided the Court with a confession, witness statement, or physical evidence backing up their claim that any person or group had a premeditated plan to storm the Capitol. Caldwell asks rhetorically: Doesn’t the Court find it odd that the Government hasn’t outlined the specifics of the premeditated plan? What time was the “invasion” scheduled to begin? Who would lead the attack? What was the goal once the planners entered the Capitol?

[snip]

The Government’s fanciful suggestion that right-wing tactical commandos were waiting in the wings to storm the Capitol is one for the ages.

In response to Judge Mehta’s questions about this claim, AUSA Kathryn Rakoczy conceded that the alleged co-conspirators didn’t have hard and fast plans as to what would happen before the event. This was a plan made of “possibilities,” which included the possibility (the facetious excuse offered by Caldwell) that other groups would resort to violence if Vice President Pence threw out the vote and the Oath Keepers would have to respond with force, or that President Trump would invoke the Insurrection Act and the Oath Keepers would come in to institute martial law. As Rakoczy described, they were “watching and waiting to see what leadership did” to achieve the goal of preventing the vote count, which goal the “government submits was unlawful and corrupt.”

They were waiting to see what leadership did. When leadership did what they referred to as “nothing,” they did take matters into their own hands. They were waiting and watching to see what was happening.

So when asked to respond to Caldwell’s misrepresentation that he was charged with conspiring to storm the Capitol, Rakoczy responded that it wasn’t certain they would storm the Capitol; the group was prepared to act, they just weren’t sure how — given the uncertainties of the day — they would act.

Based on that response and his conclusion that Caldwell actually had never entered the Capitol, Judge Mehta ruled that Caldwell was differently situated than the other defendants insofar as the evidence that he participated in the conspiracy (to storm the Capitol, Fischer said) was weaker given that he never did enter the Capitol.

Only later, after Judge Mehta had announced his decision, did Rakoczy point out the problem with this argument: Caldwell is not charged with conspiring to storm the Capitol. As she noted, the language Fischer kept quoting about storming the Capitol came from a background paragraph of the superseding indictment:

23. As described more fully herein, CALDWELL, CROWL, WATKINS, SANDRA PARKER, BENNIE PARKER, YOUNG, STEELE, KELLY MEGGS, and CONNIE MEGGS, planned with each other, and with others known and unknown, to forcibly enter the Capitol on January 6, 2021, and to stop, delay, and hinder the Congressional proceeding occurring that day.

The actual conspiracy as charged was to impede the certification of the Electoral College vote.

24. [… the defendants] 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, Congress’s certification of the Electoral College vote, and to attempt to do so, in violation of Title 18, United States Code, Section 1512(c)(2).

Purpose of the Conspiracy

25. The purpose of the conspiracy was to stop, delay, and hinder Congress’s certification of the Electoral College vote.

This is a problem I saw going in (though I doubted that Fischer would be able to confuse Mehta as well as he did).

But the results of this hearing, particularly given Rakoczy’s answers, reveal something about the way this conspiracy is charged (and the ones most of the Proud Boy are charged).

They assume the any action conspirators took would be effectuated on Congress, that that was the only eventuality conspirators were planning for.

The conspiracy is all built off an obstruction charge which itself, while valid, is fairly inapt. It likens the counting of the vote to a trial, which legally holds, but doesn’t get at the scope of what co-conspirators (and Trump) were trying to accomplish. The focus — Caldwell’s, as well as those who actually did storm the Capitol — was all on Congress, because that was the next event in question (just as the previous December mob had been focused on the electoral certifications in the states). But the goal was not (just) to stop the certification of the vote count on Congress. The ultimate goal was to ensure that Trump would remain President, via whatever means. And as Rakoczy acknowledged, one possibility that co-conspirators Kelly Meggs and Jessica Watkins believed might happen was that Trump would declare martial law, and the Oath Keepers would become the glorious army to save their fantastic dreams. That would have had the effect of preventing the certification of the electoral vote, but it would have (if successful) been a more direct route to the actual goal of the conspiracy: to keep Trump in power and prevent the lawfully elected President from taking over.

That’s why Fischer’s ploy worked: because all the planning wasn’t primarily about the Capitol. It was primarily about Trump.

This charge is built like it is, I’ve always been convinced, because no one has yet made the commitment to charge seditious conspiracy (ideally in parallel with this conspiracy). The real goal, after all, was to overthrow the democratic system, and impeding the vote count was just one means to achieve that conspiracy. The conspiring that started even before the election was about overthrowing democracy, not just January 6.

This may not be a fatal weakness for these conspiracy charges. Now that prosecutors have seen Fischer work this feint so well, they’ll be better prepared for it from others.

But one reason it worked is because the real goal of the conspiracy — the one that Caldwell’s lawyer all but conceded to today — was to do whatever it took to prevent the lawfully elected President from taking power.

An Inventory of the January 6 Investigation on Merrick Garland’s First Day

Overnight on the day that Merrick Garland got his first briefing on the January 6 investigation, DOJ asked for a 60-day extension of time in the Oath Keepers’s conspiracy case. As part of the motion, they cite what has been done on the investigation so far. That inventory includes:

  • Over 900 search warrants, executed in almost all fifty states and the District of Columbia
  • More than 15,000 hours of surveillance and body-worn camera footage from multiple law enforcement agencies
  • Approximately 1,600 electronic devices
  • The results of hundreds of searches of electronic communication providers
  • Over 210,000 tips, of which a substantial portion include video, photo and social media
  • Over 80,000 reports and 93,000 attachments related to law enforcement interviews of suspects and witnesses and other investigative steps
  • Involvement of 14 law enforcement agencies, including:
    • U.S. Capitol Police
    • DC Metropolitan Police Department
    • FBI
    • DHS
    • Bureau of Alcohol, Tobacco, Firearms and Explosives
    • US Secret Service
    • US Park Police
    • Virginia State Police
    • Arlington County Police Department
    • Prince William County Police Department
    • Maryland State Police
    • Montgomery County Police Department
    • Prince George’s County Police Department

As the filing lays out, the government and the DC Public Defender’s office are trying to set up a system making available the general set of evidence to all defendants, while providing more specific evidence directly to the defendant. Some of that has started in this case.

The government has already provided defense counsel with preliminary discovery, including: arrest paperwork; recordings of custodial interviews, where available; paperwork and photographs relating to premises search warrants; data extracted from several of the defendants’ cellular telephones and social media accounts; some defendants’ hotel records; and some photographs and video recordings, from publicly available sources, of the defendants participating in the alleged offenses.

But most of the defendants in this case have already opposed a continuance, including Donovan Crowl, Kelly and Connie Meggs, Graydon Young, and Thomas Caldwell.

Not only must they be aware that others will get added to the conspiracy, broadening the scope of their potential criminal exposure under the conspiracy. But the government also clearly envisions the potential of more charges (possibly including seditious conspiracy).

Some of the conspiratorial activity being investigated, such as the activity under investigation in this matter, involves a large number of participants. The spectrum of crimes charged and under investigation in connection with the Capitol Attack includes (but is not limited to) trespass, engaging in disruptive or violent conduct in the Capitol or on Capitol grounds, destruction of government property, theft of government property, assaults on federal and local police officers, firearms offenses, civil disorder, obstruction of an official proceeding, possession and use of destructive devices, and conspiracy. [my emphasis]

Given Amit Mehta’s inclinations in any case, he might grant the continuance but put several of the defendants on home detention. We’ll know more about his inclinations at a hearing at 3.

GoToInsurrection and Other Astounding Oath Keeper Social Media Habits

DOJ has now charged the following Oath Keeper associates:

Between all the charges, prosecutors have laid out a breathtaking scope of social media use by the militia:

  • A leadership list on Signal they appear to have obtained from either Watkins and/or Kelly Meggs
  • Open channels on Zello, possibly separate ones for each large event
  • Telephony chats and texts, including during January 6
  • MeWe accounts
  • Way too much blabbing on Facebook, followed by a foolish belief they could delete such content
  • Parler for further blabbing
  • Stripe for payment processing (possibly for dues)
  • GoToMeeting for operational planning

Plus, most of the people arrested thus far had their cell phones on, pinging cell towers, while they were in the Capitol (thus far, two of the accused did not enter the Capitol).

It’s the GoToMeeting revelation, in Harrelson’s affidavit, that gets me:

Pursuant to legal process, the government obtained records from Go To Meeting showing that a user named “gator 6” was the organizer for a meeting titled “dc planning call” on January 3, 2021. The user “gator 6” accessed the meeting from a mobile device using the same IP address ending in 158 [as Harrelson used to access Apple servers], and the user listed themselves as living in Titusville, Florida. Between September 30, 2020, and January 3, 2021, the user with the same IP address ending in 158 attended or organized approximately 30 meetings on Go To Meeting affiliated with the Oath Keepers, using the names “gator 6,” “hotel 26,” or kenneth harrelson.”

GoToMeeting is basically spyware for your computer, because it has to access so many features of your computer to work. As a default it collects a great deal of data on participants, and can be set to collect more. It is end-to-end encrypted, but with legal process FBI might be able to get a great deal of information from GTM, if the Oath Keepers kept it.

Between these twelve people, then, DOJ has served legal process on enough databases to create a veritable dossier on the Oath Keepers. While some of these comms (such as the Zello comms) are ephemeral, Facebook and GoToMeeting and Stripe are data vacuums.

With a database like this, the government can be choosy about which Oath Keepers they arrest. Reportedly, DOJ says they may add 6 more people to their collection of Oath Keeper defendants.

Indeed, it’s not really clear why they’ve charged the last three — Minuta, James, and Harrelson — before charging the last several members of the Stack that entered the Capitol together.

Harrelson was not part of the Stack, but the affidavit justifying his arrest shows him — and another guy — in communication as the Stack came up the Capitol steps, with Harrelson interacting with Graydon Young inside the Capitol. But his organizing efforts in Florida would put him in close touch with the Meggses (Kelly leads the Florida chapter) and James (who lives in Alabama but seems to be tied to the Florida chapter), along with Young (who lives in Titusville).

These Florida Oath Keepers were providing “security” for Roger Stone well before the January insurrection, including an event in Florida. (MoJo had a summary of who provided security when yesterday.)

As for Minuta, in addition to serving as Stone’s security on January 5 and 6, he also was abusive to cops before entering the Capitol and on his way out, when he promised the Second Amendment option came next. Like Young, Minuta is also accused of deleting Facebook, probably just as unsuccessfully.

In James’ case, DOJ seems particularly interested in the communications he had with Minuta, called Person Five in the affidavit even though he was already arrested by the time it was approved.

While James stood with the other Oath Keepers, at least one of them (who will be referred to below as “Person Five”)2 aggressively berated and taunted U.S. Capitol police officers responsible for protecting the Capitol and the representatives inside.

[snip]

Records indicate that phone number XXX-XXX-4304 (associated with James) exchanged a number of phone calls throughout November and December 2020 with a person who will be referred to herein as Person Five.

On November 13 and 14, 2020, for example, phone number XXX-XXX-4304 (associated with James) exchanged approximately eight calls with the number associated with Person Five. Your affiant is aware that certain Oath Keepers attended rallies in Washington, D.C., held on November 14, 2020, at which some Oath Keepers, to include Person Five, operated as a personal security detail for one or more speakers at the events.

Later, on or around November 20 and December 11, 2020, records indicate that phone number XXX-XXX-4304 (associated with James) exchanged two phone calls with Person Five. Your affiant is aware that certain Oath Keepers attended rallies in Washington, D.C., held on December 12, 2020, to protest the results of the 2020 election—at which some Oath Keepers, to include Person Five, operated as a personal security detail for speakers at the events.

Finally, records indicate that, on or around January 5, 2021, phone number XXXXXX-4304 (associated with James) exchanged six calls with the number associated with Person Five. That day, James, Person Five, and other individuals wearing apparel with the Oath Keepers name and/or insignia provided security to a speaker at the “Stop the Steal” events planned for that day.

Note that Minuta was hanging out with Proud Boy Dominic Pezzola in that December MAGA event.

James’ affidavit ends with this group photo, identifying Connie Meggs, two still uncharged Stack participants, four uncharged people who tracked with James and Minuta during the insurrection, Kelly Meggs, and another Stack member.

Both the Minuta and James affidavits focus on Oath Keeper head Stewart Rhodes, described as Person One, as does this detailed filing opposing bail for Caldwell.

James stayed in touch with others during the time of active investigation:

Since January 6, 2021, phone number XXX-XXX-4304 (known to be associated with James) has exchanged multiple phone calls and text messages with the number associated with Person Five. The number associated with James has also placed at least one call as recently as February 2021, to a phone number known to be associated with Kelly Meggs, the now-arrested self-described Florida Oath Keeper leader.

Thus far, DOJ isn’t explaining why Minuta, James, and Harrelson were arrested in the weeks after FBI started exploiting the Signal chats that organized Oath Keeper efforts on January 6 and, particular, Kelly Meggs’ communications.

But because the Oath Keepers were such promiscuous users of all kinds of social media tools, the FBI has a remarkable collection of data about the group’s activities since last fall. And they’ve picked these guys to arrest.

Update: In his detention hearing today, the FBI focused on James’ providing security for Stone.

The FBI agent who testified at Thursday’s hearing said several firearms were found during a search warrant executed at James’ home. All of the firearms were legal, and none were confiscated. They included a shotgun, a hunting rifle, a few “AR-15 style rifles,” and two pistols, the agent said.

James was paid $1,500 for security at two events, including a “Stop the Steal” rally on January 6, according from testimony from his wife, Audrey James. Stone and other pro-Trump figures held several events in Washington in addition to the official rally that Trump spoke at shortly before the attack.

Audrey James said she was sent “around $1,500 total” directly from the Oath Keepers over a mobile app. She stated the funds were paid out over a couple of months to assist her and her children during Joshua James’ absence to Texas and Washington, DC, while he was providing security. She said she didn’t know where the money originated from.

This story, by itself, presents real problems with the story Stone told. He raised funds for “security” in advance of the insurrection, but then said he couldn’t find paid security so relied on volunteers.

The Passport and the Antifa Hunt: The Militia Counter-Stories Emerge

In both the case against Proud Boy Leader Ethan Nordean and accused Oath Keeper Thomas Caldwell, the defendants are arguing that the government has made errors about their activities.

With regards to the former, Nordean’s wife submitted a sworn declaration stating, among other things, that the passport the government has pointed to as evidence that Nordean might flee was not — as the government claimed — on the dresser by the bed, but instead inside a jewelry box on the dresser. She also claimed that Nordean received a Baofeng radio on January 7, the day after the insurrection, and that to her knowledge, he “did not possess” one before that date.

The government responded with a picture showing that, at a time they claim precedes the search, a picture they took to show the weapons they had secured shows the passports were on the dresser.

Additionally, she claimed that Nordean’s cell phone “was without power” on the day of the insurrection, which is irrelevant to why he stashed it in the drawer or whether it would have useful evidence.

Ms. Nordean responded with her own picture showing that, in a picture taken on December 8, 2020, the jewelry box was closed.

This would be a matter of he-said she-said, FBI agents against the wife of a suspect, except for one thing. In her original affidavit, Ms. Nordean tries to rebut the government’s focus on the Baofeng (the government claims the Baofeng he got on January 7 is a different one than the one he used the day of the riot, but in any case the one they seized was set to the channel used by the Proud Boys during the riot), she noted that “it is [her] understanding that his mobile phone was without power throughout January 6, 2021,” a detail the defense relied on to suggest, first of all, that the government was purposefully withholding that detail, and that that — and not the evidence of the Proud Boys discussing obtaining the radios and using a specific channel — is why the government had focused on the Baofeng.

But it does the opposite. A bunch of the Proud Boys brought live cell phones to their insurrection on January 6. William Chrestman appears to have tried avoiding using cell coverage, but got geolocated using his Google account. For Nordean to spend an entire day his phone powered off suggests an operational security that many of his buddies didn’t have. It certainly suggests he might have the wherewithal to search for a passport he might make use of, suggesting it’s possible that he, not the FBI, took the passports out of the jewelry box (though they would have been out there for a day because, per Ms. Nordean, Ethan wasn’t home the night before the raid.

Meanwhile, Thomas Caldwell says the government has similarly misunderstood everything about his involvement in an insurrection. There’s a claim he makes that I find quite compelling: that Jessica Watkins and Donovan Crowl hid out at his home — and tried to lose a tail on the way there — to hide from the press, not the FBI.

Contrary to the Court’s understanding, Caldwell informed FBI agents that Watkins and Crowl contacted him—not vice-versa–and requested to come to his farm to get away from the media, not law enforcement.22 That is, subsequent to a New Yorker article that identified Watkins and Crowl as being involved in entering the Capitol, their small town Ohio residences were surrounded by scores of media. 23

22 Undersigned counsel reviewed over a thousand social media messages in discovery. Multiple messages from Watkins and Crowl express a desire to run away from the media throng that descended on their small Ohio hometown. Not one message evinces an intent to avoid authorities, who had not yet charged the two with a crime. In fact, Watkins’ mother, who is not a suspect in this case, fled Ohio and hid from the media in Florida. Also, discovery confirms that Watkins and Crowl reached out to Caldwell, not vice-versa.

23 Similarly, the Government’s claim that Caldwell advised Watkins and Crowl to “avoid law enforcement” by making sure that they were not followed to his farm is misplaced. Caldwell’s concern was that the pair weren’t followed by the media to his farm. Caldwell did not want a hundred reporters camped outside his farm.

But in the rest of the filing, Caldwell spins a fairy tale while at the same time he admitted he spends a lot of time spinning fairy tales.

To put his personality in more context, Caldwell is an amateur screen writer. Specifically, Caldwell has written screenplays with military style plots.17 Undersigned counsel has read a couple of these screenplays, which are heavy on hyperbolic military language. To give the Court a sample of his writings, in one screenplay Caldwell depicts a “dog fight” between rival aircraft, with one pilot radioing out “Buzzard One, this is Slingshot, I got two bogies on my six; say again, two bogies on my six; May-day, May-day.” What the Government misunderstands is that Caldwell’s language and personality center around his military career and his addiction to Hollywood.18

Ultimately, the fairy tale Caldwell spins in this filing is that he didn’t conspire to interfere with the vote count, but instead was just aiming to hunt Antifa.

He explained his contacts with the Oath Keepers, who he viewed as a self-styled group of patriots who sought to protect Trump supporters from Antifa and who provided security at Trump events. The concerning social media posts Caldwell made, he explained, all referred to fear that Antifa would attack Trump supporters on January 6th . 21

21 This fear was well-founded. In fact, contrary to the Government’s suggestion that Antifa is a virtuous group with a few bad apples, this organization is a domestic terrorist organization that has taken over cities like Portland and Seattle, burned buildings and churches, killed and injured police officers, defaced and destroyed public monuments, and violently injured hundreds of Trump supporters across the country. In fact, just a month before the Capitol was breached, Antifa attacked elderly Trump supporters at a December rally in Washington.

As part of this fairy tale Caldwell argues that the government has the timeline of the Zello chats included in the evidence against him, and therefore mistook a plan to guard people like Roger Stone for a plan involving the Capitol.

The Court placed great weight on this evidence, as it purported to show a specific, contemporaneous plan to breach the Capitol. In court papers, the Government described the Zello communications as follows:

“At the approximate 5 minute mark, the voice believed to be [codefendant] Watkins reports, “We have a good group. We have about 30-40 of us. We are sticking together and sticking to the plan.”

“At the approximate 7 minute 44 mark, an unknown male states, “You are executing citizen’s arrest. Arrest this assembly, we have probable cause for acts of treason, election fraud.”

The voice believed to be WATKINS responds, “We are in the mezzanine. We are in the main dome right now. We are rocking it . . .[.]” ECF 1-1, ¶27 (ZMF-21-119) (second criminal complaint) (emphasis added).9

The latest indictment includes the same chronological representation, only without time-stamps. The Government’s inference is clear: The Oath Keepers had a plan to invade the Captiol and arrest elected officials, discussed this “invasion plan” at the “5 minute mark,” and were inside the Capitol a few minutes later executing the plan (at the 7:44 mark). Unfortunately, the Court has been misinformed by the Government. Upon receipt of discovery, undersigned counsel discovered that the Government’s Zello evidence actually consists of a National Public Radio (NPR) report, which aired random snippets of Zello communications. The above timestamps the Government referenced are time-stamps in the NPR report, not from Zello. In other words, the referenced Zello communications did not take place 2 minutes and 44 seconds apart in real time.

Ironically, after listening to these Zello communications, the Government’s smoking-gun proof of premeditation fizzles. Specifically, it is clear that the communication regarding “sticking to the plan” happened several hours before the Capitol breach, and probably in the very early morning, as there is no crowd noise in the background. 10 By contrast, the second Zello communication (from inside the Capitol) had substantial background noise.

10 Published reports suggest that as many as 500,000 demonstrators showed up to the rally. The fact that the audio reveals no crowd noise suggests that this particular Zello communication happened before hundreds of thousands of rally-goers entered the streets of Washington.

I’ll return to the temporal claim later. But there are several things that mark this story as a fairy tale. First, he’s complaining that the male voice has no background noise whereas Watkins’ does have background noise. Caldwell is comparing messages from different people in different places.

Moreover, while he nods to the NPR original of this (which he doesn’t cite, but I assume is this WNYC interview), he doesn’t acknowledge two sets of texts that the government has yet to rely on (but surely will), which make it clear the plan was prospective and tied to the Capitol. First, from two blocks away, Watkins reports that everyone is marching on the Capitol.

MILITIA What kind of numbers do we have going into the capital? Any estimates? What percentage of the crowd is going to the capital?

WATKINS One hundred percent. Everybody’s marching on the capital. All million of us. It’s insane. We’re about two blocks away from it now and police are doing nothing. They’re not even trying to stop us at this point. [END CLIP]

And then, a block away, Watkins informs her interlocutor that she’s going to go silent because “Imma be a little busy.”

WATKINS Yeah, we’re one block away from the Capitol now. I’m probably going to go silent when I get there because Imma be a little busy.

INFORMANT Hey, my girlfriend is at the Capitol right now and she said that cops are coming in from the right of the building. [END CLIP]

Even assuming the rest of the excerpts are a jumble (and I expect we’ll get clarity on this point shortly), it’s clear that Watkins’ objective is the Capitol, not guarding Roger Stone.

But there’s one more part of the texts that make that clear: the channel name. “Stop the Steal J6” The Oath Keepers didn’t arrange radio communications to keep Roger Stone safe. They arranged radio communications to stay in touch as they jointly assaulted the Capitol.

But there’s a bigger tell in this filing of fairy tales, the filing that argues Caldwell’s communications can’t be taken literally because he lives in a fantasy world, presents a claim that he believed Antifa presented a serious threat, and then claims that Caldwell’s denials must be believed because, “The word of a 20-year military veteran with no prior criminal record is evidence, and it is strong evidence, of his innocence.” Caldwell tells a fairy tale about the crimes of which he is accused.

Caldwell absolutely denies that he ever planned with members of the Oath Keepers, or any other person or group, to storm the Capitol. Caldwell absolutely denies that he obstructed justice. 3

The issue as to whether Caldwell violated 18 U.S.C. § 1752(a)(1) (Entering and Remaining in a Restricted Building or Grounds) is still being researched by undersigned counsel. Obviously, however, this charge is the least of the Court’s concerns in weighing the factors under the Bail Reform Act.

Caldwell is personally accused of two counts of obstruction. The first, 18 U.S.C. § 1512(c)(1), accuses him (like Graydon Young) of attempting to delete damning Facebook content, an accusation this filing rebuts.  But he is singularly and as part of the conspiracy also accused of violating 18 U.S.C. §§ 1512(c)(2), 2. The object of the conspiracy is not, as Caldwell would suggest, to storm the Capitol. It was, instead, to stop the electoral vote count.

The purpose of the conspiracy was to stop, delay, and hinder Congress’s certification of the Electoral College vote.

This is an accusation his entire fairy tale story doesn’t deny, nor does his narrative about his own actions that day (or the planning leading up to it) rebut the claim.

As I’ve said, at least one part of Caldwell’s story may well be true: that Watkins and Crowl were hiding out from the press, not (yet) the FBI. But none of Caldwell’s re-imagining of the record even attempts to rebut that he and his terrorist buddies were attempting to interfere with the counting of the vote as laid out in the Constitution.

Then again, Judge Mehta may not be his desired audience. Instead, his claim this was all about Antifa may be an attempt to feed GOP efforts to deny they encouraged a terrorist attack on the Capitol.

Update: Took out a reference to Nordean’s phone in his daughter’s drawer. That was William Chrestman, not Nordean. I thought I had removed it.

Update: Beryl Howell granted Nordean home detention yesterday, judging that the government (which backed off some of its earlier claims about Nordean’s role) had not proven that Nordean had directed the breach of the Capitol.

Oath Keepers Learn the Hard Way: Don’t Plan an Insurrection on Facebook

“For every Oath Keeper you see, there are at least two you don’t see.” – email from Oath Keeper head Stewart Rhodes forwarded from Oath Keeper Graydon Young to his sister, Laura Steele, on January 4, 2021

I want to look at filings from the Oath Keepers investigation to show how FBI is juggling to move quickly enough to prevent obvious subjects from obstructing the investigation without tipping off others to the substance of the investigation. The filings confirm that the FBI will get sealed arrest warrants against subjects who are obviously obstructing the investigation, but may not use them right away, so as to obtain more evidence against them and their immediate co-conspirators. The filings also show how hard it is to delete evidence in an age of social media while conspiring with dozens of other co-conspirators.

The investigation from Watkins to Caldwell to the Parkers, Youngs, and Biggs

There’s a story about the Oath Keepers investigation that arises from the nature of the first publicly charged defendants. According to that story, the founder of an Ohio militia affiliated with the Oath Keepers, Jessica Watkins, boasted on Parler about “forcing entry into the Capitol” on the day of the attack. Videos of the Oath Keeper Stack showed up in videos posted within a day of the attack. Then, on January 13, the Ohio Capital Journal posted an interview with Watkins where she described it “the most beautiful thing” until she started hearing glass smashing — which she blamed on an Antifa false flag attack (a subsequent filing suggests Watkins wanted the Oath Keepers to get good press from the attack, threatening to sue some male journalist if he portrayed the Oath Keepers negatively).

That’s the evidence the FBI showed to obtain an arrest warrant on Watkins on January 16.

Meanwhile, as the investigation was closing in on Watkins, her recruit Donovan Crowl did an interview with the New Yorker for a story loaded with more images of coordinated movement from the Oath Keepers. Crowl offered similarly contradictory excuses for his action as Watkins.

On January 17, the FBI tried to conduct an interview with Watkins, only to be told by her partner, Montana Siniff, that she left Ohio on January 14 to stay with her friend and fellow Oath Keeper, “Commander Tom.”

At some point, the FBI obtained information from Facebook — they don’t explain when or on whom it was served, which I’ll return to. The return showed that Caldwell coordinated hotel reservations at the Comfort Inn/Ballston, not just with Watkins, but also others from North Carolina, as well as speaking with Crowl. This content may not have been obtained via Caldwell yet, because Caldwell’s private messages don’t show up in filings until January 19 (alternately they may have delayed that reveal until Caldwell was arrested).

But the FBI used that public Facebook information to obtain a warrant for Crowl on January 17. Watkins and Crowl turned themselves into Urbana, OH police that day, where the FBI took them into custody.

On January 13, the Guardian did a story on Watkins’ use of Zello.

“We are in the main dome right now,” said a female militia member, speaking on Zello, her voice competing with the cacophony of a clash with Capitol police. “We are rocking it. They’re throwing grenades, they’re frickin’ shooting people with paintballs, but we’re in here.”

“God bless and godspeed. Keep going,” said a male voice from a quiet environment.

“Jess, do your shit,” said another. “This is what we fucking lived up for. Everything we fucking trained for.”

The frenzied exchange took place at 2.44pm in a public Zello channel called “STOP THE STEAL J6”, where Trump supporters at home and in Washington DC discussed the riot as it unfolded. Dynamic group conversations like this exemplify why Zello, a smartphone and PC app, has become popular among militias, which have long fetishized military-like communication on analog radio.

On January 19, the government obtained an amended conspiracy complaint against Watkins, Crowl, and Caldwell. It included the following new information:

  • Quotations from the Zello messaging
  • Facebook messaging from Caldwell pictured standing outside the riot calling everyone in Congress a traitor
  • Facebook messages showing planning between Watkins, Crowl, and Caldwell between December 24 and January 8
  • Instructions for making plastic explosives found at Watkins’ house

Of particular interest, the complaint included the first hint that the Oath Keepers had intelligence — shared using Facebook — about the movements of Members of Congress.

On January 6, 2021, while at the Capitol, CALDWELL received the following Facebook message: “All members are in the tunnels under capital seal them in . Turn on gas”. When CALDWELL posted a Facebook message that read, “Inside,” he received the following messages, among others: “Tom take that bitch over”; “Tom all legislators are down in the Tunnels 3floors down”; “Do like we had to do when I was in the core start tearing oit florrs go from top to bottom”; and “Go through back house chamber doors facing N left down hallway down steps.”

Having arrested the two Oath Keepers blabbing to the press and the guy they hid out with, there’s not much more overt sign of the investigation until February 11, when the government submitted filings supporting pre-trial detention for both Watkins and Caldwell.

Arrest affidavits submitted on February 11 and February 12 (but sealed until after February 16) also refer to Watkins’ cell phone returns, including address book information describing Bennie Parker as a recruit, texts between Watkins and Parker coordinating plans for the insurrection and reassuring him the FBI would not prosecute them after the insurrection, and a picture of his wife Sandi Parker. Watkins’ cell phone returns also show a contact for Kelly Meggs in Florida, which she associated in her address book with the Oath Keepers.

Those initially sealed arrest affidavits also rely on surveillance footage and financial records from the Comfort Inn where all the Ohioans  stayed. It shows the Ohioans together in the lobby. It reveals that Kelly Meggs paid for a room that night registered under another suspected Oath Keeper’s name (according to credit card records showing a $302 charge, Meggs apparently stayed at the Hilton Garden Inn the night of January 7). [Update: The indictment clarifies that Meggs paid for two rooms at the Comfort Inn and booked two at the Hilton, of which he paid for one. h/t bb]

The initial affidavit against Kelly and Connie Meggs and Graydon Young and Laura Steele also includes a picture taken — by some unidentified person — from the van from North Carolina.

The same affidavit includes testimony from a witness who interacted with the Oath Keepers on January 6 and was on a text message chain including Young and Steele, who was introduced to them as Gray and Laura and learned they had taken the Metro into DC. It relies on surveillance video from the Metro. It includes returns from Steele and Young’s Google accounts, including Steele’s application to join the Oath Keepers.

It includes location data showing Graydon Young’s phone traveling from Englewood, FL to Thomasville, NC to Springfield, VA, to DC, then back to Thomasville and ultimately, on January 8, back to Englewood. It includes his round trip flight records from Tampa to Greensboro, consistent with the movement of his phone. The affidavit also uses location data to place Steele and the Meggses in a “geographic area that includes the interior of the United States Capitol building.”

It includes subscriber records for Steele, Young, and Kelly Megg’s MeWe accounts, as well as subscriber records for Facebook accounts for everyone. Of particular note, the affidavit used to arrest Young and the others shows advanced legal process for Young, but mostly subscriber information for the others. They also use Young’s Google data to establish probable cause against the Meggs but do not, yet, use it against Young.

It’s likely in the five days between the affidavit and the arrest, more warrants were served for materials on the others.

There wasn’t much added in a February 25 memo supporting Watkins’ pretrial detention — except that aforementioned Watkins text with Stewart Rhodes complaining about media reports making the Oath Keepers look bad (which, because of the timing of the coverage, likely happened almost a week after the insurrection, or later).

If he has anything negative to say about us OATHKEEPERS, I’ll let you know so we can sue harder. Class action style. Oathkeepers are the shit. They rescued cops, WE saved lives and did all the right things. At the end of the day, this guy better not try us. A lawsuit could even put cash in OK coffers. He doesn’t know who he is playing with. I won’t tolerate a defamation of character, mine or the Patriots we served with in DC. Hooah?!

But in a hearing held February 26, prosecutors told Judge Amit Mehta something in an ex parte hearing to support their argument that there really was a Quick Reaction Force outside of DC on the day of the insurrection ready to bring weapons into the Oath Keepers already in DC, which is one of the reasons he denied Watkins’ motion for release.

The earlier investigation into Graydon Young

It took a while for DOJ to unseal all the filings from the other co-conspirators, particularly the long affidavit for the four southerners. But a docket unsealed last week tells another side of that story. On January 15, a tipster identified Graydon Young, one of the Floridians added to the Caldwell and Watkins conspiracy. Based off that tip, the FBI prepared and got authorization for an arrest warrant by January 18. But they didn’t use it, perhaps because FBI was chasing down two false positives based off pictures of Young, as described in the later affidavit (the first of which may have been based off facial recognition).

First, on or around January 14, 2021, after receiving an internet tip and viewing similar photographs and video of Young from the civil unrest on January 6, 2021, an FBI agent drafted an arrest warrant for an individual (Subject-1) other than Young, based on a review of Subject-1’s driver’s license photo and the fact that Subject-1 was affiliated with the Oath Keepers. An FBI agent in Kansas City, Missouri, who was familiar with Subject-1, then determined that Subject-1 was not the individual depicted in the photos at the U.S. Capitol on January 6, 2021. The government did not pursue charges against Subject-1. Second, on or around January 15, 2021, a concerned citizen provided the FBI with a tip that the photograph of Young in the Rotunda was a photograph of Subject-2, who was a co-worker of the concerned citizen in Illinois. On January 18, 2021, SA Wren spoke with the concerned citizen, who stated that Subject-2 had quit the job and moved to Colorado, and “seemed like the type” who would have gone to the Capitol. SA Wren reviewed Subject-2’s driver’s license photo and determined that Subject-2 is not the person depicted in the photographs of Young at the U.S. Capitol.

In other words, FBI was prepared to arrest Young by January 18, within a day of the initial Watkins arrest. But they did not. They kept that arrest warrant sealed while they obtained his location records, travel records (including evidence he drove home from North Carolina rather than flying, and had his sister’s car towed back to North Carolina afterwards), and subscriber information for other social media.

At some point (as noted), FBI obtained Young’s Google account. But on February 11, they used that “solely as evidence against Kelly Meggs. At this time, the government is not seeking to use this email against Young,” suggesting they still needed legal process to use it against him.

Don’t launch an insurrection with a still-active Facebook account

Given that the FBI was ready to arrest Graydon Young on January 18, it’s worth looking more closely at the Facebook evidence in this conspiracy.

The FBI learned on January 15 that Young was probably at the insurrection, had been tagged in planning for the event on January 4, and had attempted to delete his Facebook account on January 7 (it went into effect the next day). Young didn’t delete his related Instagram account until January 13.

At some point, the FBI also learned that Caldwell attempted to unsend messages on January 8, the same day Young shut down his Facebook account.

Nevertheless, Facebook still had Young’s data, including a post from January 6 boasting, “We stormed and got inside.”

The government also obtained highly damning Facebook content from much earlier, including a message he posted to a group, the “War of Northern Aggression,” on November 7. In it, he clearly acknowledges Joe Biden’s victory.

Will this group consider migration to MeWe and Parler? I think censorship is going to get worse with Biden win.

On November 9, he asked again to move from Facebook to MeWe and Parler.

On November 30, he pushed MeWe and Parler again.

I already have MeWe and Parler … waiting for this drama to end before I delete my FB account.

Hey Graydon?!?! The drama for you is just beginning.

Meanwhile, Caldwell didn’t succeed in deleting all his evidence either. As early as January 17, in Crowl’s affidavit, they had a message (it’s unclear whether it’s public or private)

Here is the direct number for Comfort Inn Ballston/Arlington 1-571-397-3955 I strongly recommend you guys get one or two rooms for a night or two. Arrive 5th, depart 7th will work. She says there are five of you including a husband and wife new recruits. This time of year especially you will need to be indoors to set up, etc. Really, press this home, just get somebody to put it on a credit card. Even if you tell the hotel its double occupancy, you can STILL get a couple of people on the floor with bedrolls and the hotel won’t know shit. Paul said he might be able to take one or two in his room as well. I spoke to the hotel last night (actually 2 a.m. this morning) and they still had rooms. This is a good location and would allow us to hunt at night if we wanted to. I don’t know if Stewie has even gotten out his call to arms but it’s a little friggin late. This is one we are doing on our own. We will link up with the north carolina [sic] crew.

The later affidavits include Caldwell Facebook messages sent in November predicting violence.

I am very worried about the future of our country. Once lawyers get involved all of us normal people get screwed. I believe we will have to get violent to stop this, especially the antifa maggots who are sure to come out en masse even if we get the Prez for 4 more years.

On January 6, Caldwell continued to use Facebook, receiving a message informing him,

All members are in the tunnels under capital seal them in. Turn on gas.

And,

Tom all legislators are down in the Tunnels 3floors down

Between Young and Caldwell, Facebook evidence shows that this operation clearly targeted legislators even after they knew Joe Biden had been elected. It turns out that neither of them successfully deleted this Facebook content before the drama really got started.

The delayed reveal

As noted, it took some time for the affidavit for the southern Oath Keepers to be unsealed. In the interim period, the FBI would have been able to investigate the Oath Keeper whose name was on the hotel room Young paid for, and all the other people on the bus on which Young and his sister were pictured. The FBI surely has reviewed any role the War of Norther Aggression Facebook group had in the insurrection. The accounts for which the FBI just had subscriber information on February 11 are probably now being fully exploited (including the WeMe accounts on which they may have been more open about their plotting).

There are still members of The Stack at large, the others on the bus, the group from Mississippi those who provided “security” for Trump’s closest associates. We don’t know where the next Oath Keepers to be arrested are. We do know where the FBI was, 17 days ago.

Timeline of Oath Keeper conspiracy

January 4: Young travels from Englewood, FL to Thomasville, NC. Young tagged in planning messaging for the attack.

January 5: Young travels from Thomasville to Springfield, VA, then heads to DC for the evening.

January 6: Young travels into DC, then back to Thomasville that night. Watkins posts to Parler and Caldwell posts to Facebook. Young posts, “we stormed and got inside” on Facebook.

January 7: Young deleted Facebook content going back to March 2019 (per Facebook record it goes into effect on January 8).

January 8: Caldwell unsends Facebook messages continuing evidence. Young returns to Englewood. Young writes an email saying that his “team leader” during the insurrection was “OK Gator 1” with Kelly Meggs’ phone number.

January 9: Watkins texts Bennie Parker telling him not to worry about the FBI investigating them.

January 11: Young has a vehicle registered to Steele’s address towed from a location near his home to Steele’s home in NC. Young deletes his Instagram account.

January 13: Watkins interview in Ohio Capital Journal. Guardian story on Watkins’ use of Zello. Young closes Instagram account.

January 14: Donovan Crowl story in New Yorker. Watkins and Crowl travel to Caldwell’s property in VA; he gives them OpSec tips for the drive. Bennie Parker texts Watkins asking if she put Sandi “out there” in the Capitol. FBI chases a false positive for Young on an Oath Keeper who lives in Kansas City, MO.

January 15: A tipster who has known Young for 35 years identified Young in an image published by NBC, informs the FBI that on January 4, other people had tagged Young in a discussion about traveling to DC. The tipster further revealed that on January 7, Young deleted his Facebook content going back to March 2019, then deleted the whole thing. FBI chases a false positive for Young to someone in CO.

January 16: Arrest warrant for Watkins.

January 17: Search of Watkins’ house discovers gear and other military items. Interview of her partner reveals she has left to stay with a friend, Commander Tom, and provides a phone registered to him at his VA property as the way to reach Watkins. Arrest warrant for Crowl. Search of a location where Crowl stays finds his tactical vest. Arrest warrant for Caldwell. Both Watkins and Crowl turn themselves in to the Urbana Police, where the FBI takes them into custody.

January 18: First arrest warrant for Graydon Young.

January 19: Caldwell, Crowl arrested by FBI, and Watkins arrested. Amended criminal complaint makes conspiracy charges against Watkins, Crowl, and Caldwell more formal. Search of Caldwell’s property finds Death List targeting election official from a different, a Gadsden flag signed by Crowl and Watkins, and a sales invoice for a weapon designed to look like a phone.

Janaury 21: Stewart Rhodes declares Biden’s “not a constitutional government.” Kelly Meggs closes his Facebook account.

January 27: Indictment for Watkins, Crowl, and Caldwell.

January 29: NYT does video analysis showing the movements of the Oath Keepers from the Ellipse to the Capitol.

February 11: Counterterrorism prosecutors Justin Sher and Alexandra Hughes join team. Motions for pre-trial detention for both Watkins and Caldwell. Sealed complaint filed against Kelly and Connie Meggs, Graydon Young, and Laura Steele.

February 12: Government moves for protective order against the original conspirators; Caldwell objects. Sealed complaint filed against Bennie and Sandi Parker.

February 16: Graydon Young arrested.

February 17: The Meggs and Laura Steele arrested.

February 18: The Parkers arrested.

February 23: Thomas Caldwell appeals detention.

February 26: Amit Mehta grants government motion to detain Jessica Watkins.

Update: I clarified that the email quoted at the top is from Stewart Rhodes, not Graydon Young.