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DOJ Moves Towards Parallel Conspiracy Prosecutions of the Oath Keepers and Proud Boys

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As noted, on January 27, DOJ indicted three Oath Keepers, Thomas Edward Caldwell, Donovan Ray Crowl, and Jessica Marie Watkins, in a conspiracy to hinder Congress’ certification of the Electoral College vote. FBI seems to be working on identifying the other people who were marching in formation with Watkins and Crowl on January 6, as well as building out a larger prosecution team (which includes, among others, one of the women who worked the Russian side of the Mueller cases).

Meanwhile, yesterday, DOJ announced the arrest of yet another Proud Boy — Ethan Nordean — and the indictment of two other Proud Boys, Nicholas DeCarlo and Nicholas Ochs, in a conspiracy to hinder Congress’ certification of the Electoral College vote. Of particular note, in DOJ’s request for detention with Nordean, they invoked the list of crimes that can merit a terrorist enhancement. (h/t FM)

They don’t say which of the terrorist enhancement crimes they have in mind, but several are possibilities:

  • 351 (relating to congressional, cabinet, and Supreme Court assassination and kidnaping)
  • 844(f)(2) or (3) (relating to arson and bombing of Government property risking or causing death)
  • 930(c) (relating to killing or attempted killing during an attack on a Federal facility with a dangerous weapon)
  • 1114 (relating to killing or attempted killing of officers and employees of the United States)
  • 1203 (relating to hostage taking)
  • 1751(a), (b), (c), or (d) (relating to Presidential and Presidential staff assassination and kidnaping)
  • 2332f (relating to bombing of public places and facilities)

Update, 2/6: The detention memo for Nordean explains they’re using his 1361 charge to apply the terrorism enhancement.

That rebuttable presumption applies to Defendant because 18 U.S.C. § 1361 is specifically enumerated in 18 U.S.C. § 2332b(g)(5)(B) and carries a maximum sentence of ten years in prison where, as here, damage or attempted damage to property exceeds $1,000.

All of which is to say the government is treating Nordean’s arrest like he’s part of a terrorist group.

As suggested above, the DeCarlo and Ochs conspiracy indictment parallels the one obtained against the Oath Keepers.

The Object of the conspiracy is the same: “to stop, delay, and hinder Congress’ certification of the Electoral College vote.” And several of the overt means are the same: agreeing to participate in a January 6 operation, taking planning steps together, and forcibly storming past the police barricades to enter the Capitol.

The conspiracy indictment of Dominic Pezzola and William Pepe effectively charged they conspired to achieve one of the means in the DeCarlo and Ochs indictment, to,

obstruct, influence, impede, and interfere with law enforcement officers engaged in their official duties in protecting the U.S. Capitol and its grounds during the demonstrations planned for January 6, 2021.

The government has not, yet, charged Pepe with 18 USC 1512, obstructing an official proceeding (meaning the vote certification).

Meanwhile, the Nordean complaint cites the charges against Pezzola, Joe Biggs, and Robert Gieswein, tying all their actions together without (yet) claiming an agreement to act together.

But you can see where this is heading: to two parallel conspiracy prosecutions, each sharing the same object — to halt the vote certification — and each also sharing several of the same overt acts.

These conspiracy indictments are, for now, based off personal communication between the co-conspirators, for example the Zello communications that Watkins sent. But as I noted in the Oath Keepers post, there is someone with whom both these groups agreed with and pursued some of the same steps as: Donald Trump. These conspiracy indictments may build little by little based off what each group has done among themselves, but the framework for a much broader conspiracy is already in place.

Trump’s Role in a Seditious Conspiracy Won’t Go Away with an Impeachment Vote

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There’s a conventional wisdom about the Donald Trump’s second impeachment trial, scheduled to start in ten days. WaPo predicts that impeachment will leave no more than a “bitter aftertaste.”

The Senate is hurtling toward an impeachment trial that will accomplish almost nothing by design and likely leave everyone with a bitter aftertaste.

Democratic voters will be furious that GOP senators refused to hold former president Donald Trump accountable for his role in encouraging supporters to march to the Capitol on Jan. 6. Republicans will be upset that congressional Democrats went through with an impeachment trial three weeks after Trump left the White House.

And independent voters, more focused on the health and economic crises fueled by the coronavirus pandemic, will wonder why Congress prioritized an impeachment process at all.

Perhaps most telling, WaPo describes Trump’s role as “encouraging” his supporters to march to the Capitol.

It’s true the word, “encouraged” appears in the article of impeachment against Trump.

He also willfully made statements that, in context, encouraged—and foreseeably resulted in—lawless action at the Capitol, such as: ‘‘if you don’t fight like hell you’re not going to have a country anymore’’. Thus incited by President Trump, members of the crowd he had addressed, in an attempt to, among other objectives, interfere with the Joint Session’s solemn constitutional duty to certify the results of the 2020 Presidential election, unlawfully breached and vandalized the Capitol, injured and killed law enforcement personnel, menaced Members of Congress, the Vice President, and Congressional personnel, and engaged in other violent, deadly, destructive, and seditious acts. [my emphasis]

But that description skips the “foreseeably result[ing]” in the interruption of the certification of the vote, the threats to Members of Congress, the deadly sedition that are also included in the article of impeachment.

Moreover, it ignores the other part of the article of impeachment, Trump’s other efforts to subvert democracy (the article describes his January 2 call to Brad Raffensberger explicitly), to say nothing of the description of Trump as a threat to national security.

President Trump’s conduct on January 6, 2021, followed his prior efforts to subvert and obstruct the certification of the results of the 2020 Presidential election.

[snip]

Wherefore, Donald John Trump, by such conduct, has demonstrated that he will remain a threat to national security, democracy, and the Constitution if allowed to remain in office, and has acted in a manner grossly incompatible with self-governance and the rule of law.

That’s a notable oversight, particularly given the — inexplicable — claim from ascendant Senate Judiciary Committee Chair Dick Durbin that we may never learn the full extent of Trump’s role in the coup attempt.

Sen. Richard J. Durbin (D-Ill.), the incoming chairman, said he would leave procedural questions up to the House managers.“I’m waiting to hear what their proposal is, but for us to suggest a trial strategy for the House managers, I don’t think that’s our job,” Durbin said.

So, instead, the Senate will rush through a trial in which the only evidence likely to be presented will be the stuff that senators themselves already lived, video clips of rioters breaking into the Capitol as senators fled through underground tunnels to their secure location.

Senators will likely not even attempt to answer the fundamental questions of every impeachment trial — what did the president know and when did he know it?

“It will be surprising to me if we ever know the answers to that,” Durbin said.

It may be true that impeachment managers will restrict themselves to the public record, though even that might include testimony from Raffensperger and evidence collected as part of the prosecution of insurrectionists. Q-Shaman Jacob Chansley even says he’d be willing to testify.

Lawyer Albert Watkins said he hasn’t spoken to any member in the Senate since announcing his offer to have Jacob Chansley testify at Trump’s trial, which is scheduled to begin the week of Feb. 8. Watkins said it’s important for senators to hear the voice of someone who was incited by Trump.

Watkins said his client was previously “horrendously smitten” by Trump but now feels let down after Trump’s refusal to grant Chansley and others who participated in the insurrection a pardon. “He felt like he was betrayed by the president,” Watkins said.

The words of Trump supporters who are accused of participating in the riot may end up being used against him in the impeachment trial. Chansley and at least four others people who are facing federal charges stemming from the riot have suggested they were taking orders from Trump.

If insurrectionists were to testify in person, the attendant security of orange jumpsuits and leg manacles might provide some sobering visuals (though COVID and real security concerns almost certainly rules that out).

But it seems foolish for any Senator to assume that the vote they’ll cast in a few weeks will make this thing go away forever.

That’s not even true for their Ukraine impeachment votes. Yesterday, Ukraine announced (much to Lev Parnas’ glee that Rudy Giuliani finally got Ukraine to announce an investigation) that it is launching a criminal probe into those — inside and outside Ukraine — who attempted to interfere in the 2020 election.

Andriy Yermak, the head of the office of Ukrainian President Volodymyr Zelenskiy, said on January 28 that Ukraine would do everything in its power to bring to justice forces within the country and outside it who attempted to damage relations between Ukraine and the United States.

“The State Bureau of Investigation has opened a criminal case,” Yermak was quoted as saying in an interview to the Ukrainian news outlet NV that was posted on the presidential website.

“The investigation is under way, and we are waiting for its results. The investigation must answer a lot of questions,” Yermak added.

Without anyone in the United States lifting a finger, then, Ukraine may provide damning new evidence about Trump’s attempt to coerce assistance on his “perfect phone call” with Volodymyr Zelensky that will make GOP negligence during the last impeachment more damning.

And in the case of the January 6 insurrection, DOJ has already mapped out a conspiracy charge that Trump could easily be charged under as well.

PURPOSE OF THE CONSPIRACY

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

MANNER AND MEANS

19. CALDWELL, CROWL, and WATKINS, with others known and unknown, carried out the conspiracy through the following manner and means, among others, by:

a. Agreeing to participate in and taking steps to plan an operation to interfere with the official Congressional proceeding on January 6, 2021 (the “January 6 operation”);

b. Using social media, text messaging, and messaging applications to send incendiary messages aimed at recruiting as large a following as possible to go to Washington, D.C., to support the January 6 operation;

Meanwhile, Acting DC US Attorney Michael Sherwin has repeatedly refused to rule out incitement charges. Indeed, I’ve argued that DOJ almost certainly will need to incorporate at least Mike Flynn, if not Trump himself, in their description of the crimes of January 6, if only to distinguish the events of that day from other protected First Amendment activity — and at least some prosecutors in DC closer to the overall investigation seem to be doing that.

There’s no guarantee that Merrick Garland’s DOJ will have the courage to pursue Trump’s role in this (though thus far, Bill Barr appointee Michael Sherwin has not shied from such an investigation, and if he oversaw such a decision it would mitigate the political blowback). There’s no sign, yet, that DOJ has identified how the coup attempt tied into Rudy’s attempts to delay the certification.

But no Senator serving as juror in this impeachment should assume the investigation won’t, inevitably, disclose the machinations that tied Trump’s efforts to stay in office to the death and destruction on January 6. Indeed, there’s no guarantee that the actions of key jurors — like Josh Hawley and Ted Cruz for inciting the mob, Tommy Tuberville for his direct coordination with Rudy, and Lindsey Graham for his own efforts to throw out votes in Georgia and his meeting with accused insurrectionist Joe Biggs — won’t ultimately be incorporated into the larger conspiracy.

And so while it may be easy for lazy political journalism to spout conventional wisdom about everyone wanting to move on, this time around it is as likely as not that the votes cast next month will age poorly as the investigation into how Trump’s action ties to the death and destruction continues.

Tunnels and Trump: The Missing Details in the Oath Keeper Conspiracy

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Yesterday, DOJ indicted the three members of the Oath Keepers previously charged with a conspiracy: Thomas Edward Caldwell, Donovan Ray Crowl, and Jessica Marie Watkins.  I would be shocked if this indictment didn’t serve as a building block for a larger — potentially much larger — conspiracy. Which is why I’m interested in what the indictment includes and excludes in this first release.

The indictment adds details describing the planning and intent of the conspiracy. It shows Watkins planning around the inauguration as early as November 9, the day Trump’s enablers were claiming his efforts to undermine the election might serve as an “off-ramp.”

On November 9, 2020, WATKINS sent text messages to a number of individuals who had expressed interest in joining the Ohio State Regular Militia. In these messages, WATKINS mentioned, among other things, that the militia had a week-long “Basic Training class coming up in the beginning of January,” and WATKINS told one recruit, “I need you fighting fit by innaugeration.” [sic] WATKINS told another individual, “It’s a military style basic, here in Ohio, with a Marine Drill Sergeant running it. An hour north of Columbus Ohio[.]”

She also spoke in apocalyptic terms about a Biden presidency.

I can’t predict. I don’t underestimate the resolve of the Deep State. Biden may still yet be our President. If he is, our way of life as we know it is over. Our Republic would be over. Then it is our duty as Americans to fight, kill and die for our rights.

[snip]

[I]f Biden get the steal, none of us have a chance in my mind. We already have our neck in the noose. They just haven’t kicked the chair yet.

The indictment also includes language making it clear that Watkins believed she was responding to Trump’s instructions.

On December 29, 2020, CROWL and .WATKINS exchanged the following text messages:

WATKINS: You still going to Illinois? We plan on going to DC on the 6th, weather permitting.

CROWL: No . …. What’s going on on the 6th?

WATKINS: DC. Trump wants all able bodied Patriots to come. I’m sure Tom would love to see us as well.

WATKINS: If Trump activates the Insurrection Act, I’d hate to miss it[.]

Because of that and the way the indictment lays out the conspiracy, it makes the details not included in the indictment far more interesting.

The indictment includes a remarkably clear description of the goal and means of the conspiracy. The goal of the conspiracy was to stop Congress’ certification of the vote.

Purpose of the Conspiracy

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

Manner and Means

19. CALDWELL, CROWL, and WATKINS, with others known and unknown, carried out the conspiracy through the following manner and means, among others, by:

a. Agreeing to participate in and taking steps to plan an operation to interfere with the official Congressional proceeding on January 6, 2021 (the “January 6 operation”);

b. Using social media, text messaging, and messaging applications to send incendiary messages aimed at recruiting as large a following as possible to go to Washington, D.C., to support the January 6 operation;

c. Coordinating in advance with others, including members of the Oath Keepers from other regions, and joining forces with these individuals and groups to further the January 6 operation;

d. Using a walkie-talkie-like application, and creating a channel on it named “Stop the Steal J6,” to make plans for and to communicate during the January 6 operation;

e. Traveling to and meeting up in Virginia, and continuing together into Washington, D.C., for the January 6 operation;

f. Bringing and contributing paramilitary gear and supplies for the January 6 operation;

g. Forcibly storming past exterior barricades, Capitol Police, and other law enforcement officers, and entering the Capitol complex in furtherance of the January 6 operation; and,

h. After January 6, 2021, concealing evidence of their involvement in the January 6 operation and attack on the Capitol.

While many of the means included military planning, the first two items were simply planning to interfere with the certification and “recruiting as large a following as possible” to participate.

Remember: under conspiracy law, each member of a conspiracy need only agree on a common goal, agree to participate in it, and take an overt act in furthering the conspiracy — an act that doesn’t even, by itself, have to be illegal.

And Watkins, here, not only cites Trump’s goal of wanting, “all able bodied Patriots to come” to DC, but she also describes the plan pushed by Mike Flynn, the invocation of the insurrection act.

Trump and Flynn conveyed those plans on Twitter. They both,

Us[ed] social media, text messaging, and messaging applications to send incendiary messages aimed at recruiting as large a following as possible to go to Washington, D.C., to support the January 6 operation;

It would be child’s play to include them in this conspiracy (though the manner and means would likely be expanded to include other steps the two of them took). Indeed, laid out like this, not eventually including at least those around Trump in this indictment would require some lengthy explanation.

Then there’s this passage that was included in the complaint but not included in the indictment, easily the most chilling language from the complaint.

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.”

It’s possible DOJ excluded that paragraph from the indictment because they learned it was not actually part of the conspiracy (which would be surprising, given that it was sent while Caldwell was in the Capitol).

It’s also possible that this language reflects coordination with people against whom the case still must be developed. Whoever it was not only appears to have had a detailed understanding of the Capitol, but may have had updates about the movement of members of Congress.

Just as one possibility, this person might have been one of the people who allegedly got a Capitol tour the day before the insurrection. This person may have been getting updates from insiders — up to and including Lauren Boebert, who twice tweeted about Nancy Pelosi’s movements during the riot.

In other words, this person appears to be a pivot between the terrorists and those giving them inside instruction. DOJ will likely keep what it knows about that part of the operation under wraps until it develops it much further.

Then there are three other people alluded to in the indictment:

  • PERSON ONE, who the conspirators expected might, but did not, provide leadership for this operation. He is referred to as “Stewie” in the complaint, which DOJ took to be a reference to the head of the Oath Keepers, Stewart Rhodes.
  • PERSON TWO, who appears to be Caldwell’s spouse. She joined him in breaching the Capitol, and if prosecutors wanted to pressure him to plead, they could threaten to include her.
  • PERSON THREE appears to be the lead of a group of North Carolina Oath Keepers who came to DC on a bus. That person and the people he or she brought are likely to be added to this indictment.

Those three people, including to those who directed the Oath Keepers how to navigate the Capitol and the Trump associates who incited them to come might all one day be included in this or a related indictment.

Again, I’m not guaranteeing that DOJ will be brave enough to name Trump in this conspiracy. But if they don’t, there will be real question how they avoided it.