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Proud Boys seditious conspiracy trial enters 32nd day

March 7, 2023/87 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection /by Brandi Buchman

From emptywheel: Please help support Brandi’s important coverage with a donation to the site.

Hello, I’m Brandi Buchman and I am a reporter covering the aftermath of the attack on the U.S. Capitol on Jan. 6, 2021. I have covered the events of Jan. 6 since their inception and I have covered the Proud Boys seditious conspiracy trial since its start as well as the first Oath Keepers seditious conspiracy trial gavel-to-gavel.

It is the 32^nd day (and eighth week) of the Proud Boys seditious conspiracy trial involving ringleader Henry “Enrique” Tarrio and his cohorts Ethan Nordean, Joseph Biggs, Zachary Rehl, and Dominic Pezzola. After a break for jurors on Monday—a lengthy motion hearing was held outside of their presence—they will return on Tuesday to hear more evidence from the prosecution as the historic trial trudges toward its expected end this April.

Monday’s motion hearing focused exclusively on the admissibility of certain evidence presented under a key legal argument advanced by the prosecution known as the “tools” theory. In short, prosecutors argue that roughly two dozen associates and/or members of the Proud Boys were utilized as blunt “tools” by the defendants on Jan. 6 to pull off the plot to forcibly stop the certification of the 2020 election.

It was Tarrio and his fellow chapter leaders, the Justice Department contends, who handpicked the “tools” of the conspiracy, and of those individuals identified, most were not charged alongside Tarrio, Nordean, Biggs, Rehl, or Pezzola. The defense has balked over whether some of the tools were truly members of Proud Boys and has suggested this “catch-all” approach by the prosecution is improper.

Presiding U.S. District Judge Timothy Kelly has for weeks accepted the government’s “tools” theory as viable, so the fight during Monday’s motion hearing largely revolved around the admissibility of specific video footage featuring roughly two-dozen so-called “tools” of the conspiracy.

Here’s a bit of background for the “tools” listed by prosecutors:

William Pepe, a former Proud Boy of New York, was seen near Pezzola in footage from Jan. 6 and he was originally charged in the same indictment. Pepe was also a member of Boots on the Ground, a Proud Boys chat set up specifically for Jan. 6, 2021. He was not, however, a member of the Ministry of Self-Defense chat where operations for the Capitol assault were allegedly hashed out among a core group of Proud Boy leaders including the defendants.

Barton Shively, a former aspiring Proud Boy of Pennsylvania—allegedly—is seen on footage from Jan. 6 where he’s near the Washington Monument on the morning of the 6^th. This was a designated meet-up location for the defendants, prosecutors argue. Shivley has already pleaded guilty to assaulting police.

Christopher Worrell, a Proud Boy of Florida who used a chemical spray on officers and was a member of Boots on the Ground chat, is seen in video clips from Jan. 6 where he’s very close to fellow Proud Boys who breached barriers.

Dan “Milkshake” Scott, a Proud Boy of Florida, breached police lines after marching with Proud Boys. Defense attorneys on Monday vehemently denied Scott’s membership with the organization.

Barry Ramey, an alleged Proud Boy of Florida, was in Scott’s proximity on Jan. 6 as they marched on the Capitol. Ramey has been charged with assaulting police with chemical spray and defense attorneys for Tarrio have argued he is not an official member of the extremist group.

Marc Bru, a Proud Boy from Washington state, is seen on video footage leading a group of people toward the Capitol, according to prosecutors.

Trevor McDonald, who entered the Capitol with defendant Joseph Biggs, has been brought forward as a tool of the conspiracy by prosecutors but evidence of his direct connection to the Proud Boys struck Judge Kelly as thin. McDonald came to Washington on Jan. 6 with his father, Shannon Rusch. In video clips, McDonald is seen near Biggs, Nordean, and Rehl as well as other Proud Boys like Gilbert Fonticoba, Arthur Jackman, and Paul Rae.

Ronald Loehrke, an alleged Proud Boy of Washington state, received a text from defendant Ethan Nordean leading up to the Capitol attack where Nordean suggested bringing him to the front lines. Loehrke promised in return that he would bring “bad motherfuckers” to the Capitol.

James Haffner of Washington state appears in Jan. 6 footage wielding chemical irritants, and prosecutors say evidence shows Haffner standing close to Biggs before helping tear apart barricades at the Capitol.

Nicholas Ochs, a Proud Boy chapter leader from Hawaii and onetime elder of the extremist group, made it into the Capitol on Jan. 6 and recorded another Proud Boy, Nicholas DeCarlo, writing “Murder the Media” onto a door. Once inside, prosecutors say Ochs interacted with Nordean.

Gilbert Fonticoba, a member and alleged “captain” of the Proud Boys Ministry of Self Defense group, Fonticoba participated in the Proud Boys Boots on the Ground chat where operations for Jan. 6 were siloed. Prosecutors say Tarrio invited Fonticoba into the Ministry group chat but defense attorneys have denied this connection. Other evidence shows Fonticoba reported his location back to Proud Boy Aaron Wolkind during some of the thickest rioting and after Wolkind told Proud Boys he was “storming the Capitol” several times.

Paul Rae made it inside of the Capitol on Jan. 6 and prosecutors argue they heard Rae on footage telling members to “find” former Speaker of the House Nancy Pelosi.

Arthur Jackman met up with Proud Boys at the Washington Monument on the morning of Jan. 6 and is an alleged member of the group.

Eddie George Jr. of Florida, a member of the Ministry of Self-Defense chat, appeared in a selfie with Biggs and Nordean on Jan. 6 and faces multiple charges including obstruction, disorderly conduct, and civil disorder.

Nate and Kevin Tuck, are a father-son duo from Florida. Kevin Tuck was a police officer and Nate Tuck was a former police officer who resigned in 2020. Kevin Tuck resigned after his arrest in July 2021.

Alan AJ Fisher III was a member of both the Ministry of Self Defense and Boots on the Ground chat who joined Nordean and Joseph Biggs at an AirBnB in D.C. on the eve of the insurrection. Footage shows Fisher at the lower west terrace tunnel archway of the Capitol on Jan. 6, close to where some of the worst violence of the day occurred.

Brian Boele ends up at the lower west terrace tunnel archway and may have been a direct part of the violent push inside the tunnel.

Dion Rajewski ends up at the lower west terrace tunnel archway with Fisher III and Zach Johnson and others.

Zach Johnson, a member of Boots on the Ground chat appeared in a selfie with defendant Biggs, at the lower west tunnel archway. He also appears in video footage from the west plaza where Biggs, Nordean, and others are spotted near him. Also appearing in the video from this time and place are Rae, Boele, Fonticoba, and Fisher.

James Brett IV was at the lower west tunnel archway and was later seen inside of the Capitol.

Other individuals like Robert Gieswein and William Chrestman were initially featured on the government’s list of “tools” of the conspiracy. But on Monday, neither Gieswein nor Chrestman made the cut.

Though he was short on details on Tuesday morning once court was underway, Judge Kelly said he would exclude evidence from Barry Ramey and Barton Shivley.

“The constellation of information we knew about these two people didn’t get over the hump as far as evidence being sufficiently relevant,” Kelly said.

Video evidence identifying Dion Rajewski, Brian Boele, and James Brett will be excluded in part for now but videos showing AJ Fischer and Zach Johnson in this group can be included. Kelly said footage involving AJ Fisher and Zach Johnson can come in because they are seen marching with defendants on the national mall.

To save the jury time this morning, Judge Kelly said he would explain his decisions at length about the “tools” of the conspiracy in writing later.

Welcome to Brandi Buchman

March 7, 2023/44 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

As some of you likely know, last week, Brandi Buchman was one of a number of people laid off from DailyKos.

She was laid off perhaps halfway through her coverage of the Proud Boy Leaders trial (and in the midst of a really tough personal week for her). This trial is of historic import, both on its own terms, and for the prospect of holding related participants in January 6 accountable. She is just one of a few journalists who has covered the grueling trial from the start.

We at emptywheel are really privileged to welcome Brandi to emptywheel to finish her important work covering the trial. I know I’ve relied on Brandi’s coverage; if you haven’t yet followed her live-tweeting, she’s at https://twitter.com/brandi_buchman.

The trial is likely to last at least five more weeks — another week for the government case, plus at least two weeks for defense witnesses (the lawyer Joe Biggs shares with Alex Jones, Norm Pattis, claims he wants to call Donald Trump to testify), plus any rebuttal case, and finally, jury watch.

We don’t host advertising and do not paywall our site. If you are able, please help to support this important work. Thanks!

And welcome to Brandi!

Judge Kelly’s Basis for His “Tools” Determinations

February 14, 2023/6 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

Since the beginning of the Proud Boys case, there has been an ongoing dispute about the government’s “tools” theory of the conspiracy, which argued that there were a bunch of people (which was trimmed after pre-trial hearings) whom Proud Boy leaders used to execute their conspiracy. This post explains that dispute.

These people are not accused or alleged to be part of one of the parallel conspiracies charged against the Leaders, and so normal hearsay rules will not apply as normal. But they are people who, the government alleges, the Leaders pulled together as recruits to make the attack happen.

Part of this dispute pertains to whose actions at the Capitol can be shown, as video evidence, to the jury in association with the Proud Boy Leaders. I think the case presents what I call a “view-say” exception, in which assaults committed by associates in places at the Capitol where no Leader was present, may or may not be shown to the jury. On the first day of trial, for example, Judge Kelly deferred on whether assaults that took place in the Tunnel should be shown, since no Leader was present.

But a big part of the debate pertains to how many of the communications on one or another of the Telegram threads the Leaders used to organize the Proud Boys can be introduced as evidence.

Last Friday, Judge Kelly issued his order on the issue verbally in what takes up about 80 pages of transcript. I wanted to lay out his logic here, so it is broadly accessible.

First, let me clarify an issue that came up on Monday, as we argued this, about who might count as a tool. On the one hand — it seems to me that the tools fall into two buckets for purposes of this case generally, as the Government has argued it. On the one hand, you have people whom the defendants or their cooperator — or their co-conspirators marched toward the Capitol on January 6th to whom they had some alleged nexus or relationship in the, sort of, physical effort of what happened that day on January 6th. And in — separately, you have the group we’re dealing with here, which is Proud Boys whom the defendants and their co-conspirators hand-selected to join the MOSD. Of course, there’s some overlap between these two groups of people. But I certainly don’t think, over the argument of some defendants, that someone ultimately had to be in one group for their statement to — or their conduct to be relevant for the — to this case. In other words, to be a tool, you didn’t have to necessarily believe — belong to both of those, sort of, groups.

I’ll next note that, again, by and large with regard to the tools evidence, I didn’t see any true hearsay issues there. It’s clear to me that the bulk of these statements, at least, were not offered as assertions but rather as circumstantial evidence of the tools’ motive and intent in the days leading up to January 6th. And to the extent they are assertions of the tools, they would fall under Rule 803(3) which allows statements expressing the declarant’s motive, intent, or plan to be admitted for the truth of the matter asserted.

But, of course, after clearing the hearsay bar, statements must still be relevant and satisfy Rule 403 balancing. So here’s the line I drew on that front. Where a purported MOSD tool’s statement expressed a more specific, concrete intent to use force or to act unlawfully on January 6th, I admitted them. But — or at least where the statement could — where you could infer that. But where, in my view, a statement was less specific, or tended to be more — a general reference to violence or perhaps even to a joke, I excluded them.

For — as for those I admitted, I think the statements are relevant/admissible because they do shed light on what the purpose of the MOSD was, which is a central issue in the trial. As I mentioned, the defendants have consistently argued — and even opened on the idea — that the MOSD was intended to create more of an organizational structure and a hierarchy at rallies for defensive purposes. And in short, the Government’s theory is that, at least with regard to January 6th, it was intended for an offensive purpose.

Thus, I think that the state of mind, in the days leading up to January 6th, of those that the co-conspirators and the defendants in this case vetted to be in the MOSD is relevant. And it’s an important factor supporting — and it is an important factor that, sort of, reinforces their relevance that the evidence shows that the defendants and their co-conspirators did select them. In fact, as Mr. Rehl says in Exhibit 503-10, everyone in the group was, quote, Represented by someone who trusted them to be there. That’s a little bit of a butchering of that quote, but I think that’s the essence of it.

The relevance of these exhibits is further buttressed by the fact that these statements were not rebuked by any of the defendants or their co-conspirators that were present in these chats as MOSD organizers. Now, we’ve talked about this a lot. I think, ordinarily, the idea that a single individual’s failure to respond to a comment in a chat — the idea that that can be relevant or some kind of adoptive admission in some way is a stretch in general, and it’s probably not a theory that would fly in a typical situation. Certainly, the bigger the chat that there is, the more public it is, and all the rest. But I think, here, that the failure to do so — not of one person, but collectively of all the people at issue, the four defendants here who were in those chats, plus their alleged co-conspirators — all those people’s non-responsiveness to some of these things is relevant, and it bolsters the overall relevance of the exhibits I decided to admit, especially because it’s clear that at least some of the defendants — again, there is evidence here — some of the defendants were monitoring the MOSD chats to ensure they stayed on topic.

Indeed, the stated rules of the MOSD chat made clear that the members had to stay on topic, and on a couple of occasions to which the Government has directed me, defendants or co-conspirators did, either in the group or amongst themselves, rebuke members’ suggestions that they viewed as outside the MOSD’s parameters. For example, in Exhibits 505-20 and 505-21, Mr. Stewart, Mr. Bertino, and Mr. Tarrio criticize an MOSD member in the MOSD Op group for suggesting that the group discuss what to do about, quote, Unaffiliated Proud Boys wearing colors, closed quote. Stewart admonished that there was nothing to talk about because the MOSD has a mission; either get with it or eff off, and that they were there for a reason. And Mr. Tarrio followed up by instructing everyone to focus. Mr. Bertino stepped in to emphasize that the member’s comment was not appropriate in the MOSD chat because the group had a mission and they didn’t want to be distracted from it. And in Exhibit-525-7, Defendant Biggs messaged Defendant Tarrio expressing in the — that the MOSD chat had already become annoying because members were talking about other events.

So importantly, in weighing whether to admit certain tools exhibits and drawing the line I did, I admitted only those exhibits where I thought there was a stronger inference that the comment would have drawn a rebuke from one of the defendants or one of their co-conspirators if the mission of the MOSD had truly only been defensive in nature.

So for all those reasons, I found the handful of the exhibits I admitted on this theory — the tools theory — were relevant, and also, satisfied Rule 403.

Before I move on to the categories of the documents, as one more offshoot of the tools issue — it doesn’t go to the admissibility of these documents, but it goes to the grounds for admissibility of statements made to — by other people, including the defendants, to the tools — I want to address one additional point that came up on Monday. Counsel for Mr. Nordean argued to me that several exhibits that the Government offered as co-conspirator statements could not have been in furtherance of the conspiracy simply because the statements at issue were made to non-co-conspirators, including tools. But in the United States v. Tarantino, the D.C. Circuit explained that if a statement, quote, Can reasonably be interpreted as encouraging a co-conspirator or another person to advance the conspiracy, or as enhancing a co-conspirator or another — or other person’s usefulness to the conspiracy, then the statement is in furtherance of the conspiracy and may be admitted. That case is 846 F.2d 1384 at 1412, a D.C. Circuit case from 1988. So to the extent that Mr. Nordean objected on that basis to several of the exhibits I’m about to discuss, particularly those involving the defendants’ or the co-conspirators’ statements to tools, that argument is foreclosed by Circuit precedent.

Pezzola

How J6C’s Obstinance on Transcripts Enabled Dominic Pezzola’s Attempt to Sow Conspiracy Theories

February 14, 2023/51 Comments/in emptywheel /by emptywheel

On Friday, lawyers for Proud Boy Dominic Pezzola (who are among the more conspiratorial of the Proud Boy defense attorneys) filed a motion for a mistrial claiming that the “Winter Palace” document Enrique Tarrio received from one of his at least three girlfriends was created by the government. Here’s how the document was admitted as evidence last Thursday.

At issue is testimony that Samuel Armes provided to the January 6 Committee (and, as we’ll see, a grand jury) regarding his recognition that a document he created as part of imagining how an attack on the electoral certification would happen was altered to become the Winter Palace document.

Pezzola’s lawyer, Robert Root (who joined his team days before trial started) argued that when Judge Kelly ruled the document was admissible back in December, defense attorneys had not yet seen Armes’ testimony, and so could not argue that Armes — who claimed he had been trained to be a spook — was a government agent framing the Proud Boys.

According to the Politico article, Ms. Flores also gave an interview to the Jan. 6 Committee. And Ms. Flores reportedly testified that Armes was the author of the entirety of “1776 Returns” and that this FBI and CIA member or associate asked her to share it with Tarrio.

If true, this means that the most damning document in this trial was authored by the intelligence community—someone “groomed” by the FBI itself. And this CIA and FBI asset requested Tarrio’s friend to share the document with Tarrio just prior to January 6. [emphasis original]

The filing relies heavily on this Politico story, which extrapolates about a communication the January 6 Committee had with the girlfriend in question, Eryka Flores, but which was not released as a transcript.

In my opinion, this filing was designed first and foremost as bait for Jim Jordan to claim that even the Proud Boy prosecution is just the Deep State trying to frame Donald Trump, and only secondarily as yet another of the often frivolous motions for a mistrial defense attorneys have lodged in this case.

But the government has responded in here, partly by (inappropriately, in my opinion) mocking the illogic of Pezzola’s challenge, before going on to explain how the testimony of Armes, at least, totally rebuts Pezzola’s claims.

The government strongly disagrees with Pezzola’s characterization of both the facts and the record with respect to these assertions. The government robustly agrees with defendant Pezzola that it would have been egregiously improper for a member of the U.S. Intelligence Community to have conducted a domestic intelligence operation targeting Enrique Tarrio, a U.S. Person, and providing him with a plan to “storm” (or “occupy” or “sit in”) House and Senate Office Buildings on January 6. It would have been even more improper for a member of the U.S. Intelligence Community to send this plan to the leader of the Proud Boys when, just months before, then-President Trump had exhorted the Proud Boys to “stand back and stand by” during a nationally televised debate. And it would have been egregious indeed for a member of the U.S. Intelligence Community to send such a document to the leader of the Proud Boys in advance of January 6, in the wake of the violent attacks the Proud Boys were associated with in Washington, D.C., on November 14, and December 12, 2020. Surely, had the government planted such a document in the inbox of defendant Tarrio (ECF 660 at 5), one would hope that the U.S. Intelligence Community would have hewed to the truth of what happened on January 6 and included the Capitol as one of the targeted buildings.

The filing notes that, contrary to the claimed late notice with the release of the transcripts, the Proud Boys already received October 7 grand jury testimony from Armes that tracks his J6C testimony, a transcript from Flores’s May grand jury testimony showing her invoking the Fifth repeatedly, and a third witness describing receiving the document from Flores on a date that would be before she sent it to Tarrio on December 30.

The information that Samuel Armes drafted a document that inspired portions of the Government Exhibit 528-1 was disclosed to defense counsel by the government on November 16, 2022, when it provided counsel with a copy of Armes’ October 7, 2022, grand jury testimony.

[snip]

Armes testified that he shared his “wargaming” exercise in the form of a three- to five-page Google document with “Erika Flores” sometime between August 2020 and January 2021. 7/18/2022 HSC Tr. at 12; 10/6/2022 Grand Jury Tr. at 26. When asked why Flores told the House Select Committee that Armes had drafted the document, he testified “I guess she is just blame shifting.” 7/18/2022 HSC Tr. at 20. Armes surmised that Flores had taken his “ideas as an inspiration, and her or some group of people then turned it into ‘1776 Returns.’” Id. Indeed, when subpoenaed to testify before the Grand Jury in this case on May 3, 2022, Flores answered only brief biographical questions and then invoked her fifth amendment right not to testify repeatedly in response to more than 50 transcript pages worth of questions by the government about the “1776 Returns” document. That transcript was provided to defense counsel on November 16, 2022.1

1 On that same day, counsel were provided with the grand jury transcript of another witness who testified that a girlfriend of Enrique Tarrio known as “Erika” had messaged a document to the witness about two weeks before January 6 and asked the witness to fill in the names of people to participate in an “infiltration plan.” The witness further recalled that the individuals were to dress like they belonged in the buildings and to have set up prior meetings to gain access. Compare Government Ex. 528-1 at pages 3, 6.

The third witness may be Jeremy Liggett, whom J6C investigators suggested had some tie to the document as well.

There are just three problems with this.

First, as Politico reported today, Flores didn’t invoke the Fifth to the J6C.

Two investigators familiar with her interview — an informal, untranscribed appearance in early 2022 — say that while she was a reluctant witness and initially planned to plead the Fifth, she ultimately agreed to answer some questions about the document.

“Instead of pleading the Fifth, we did an interview with her,” one of the investigators said, speaking on condition of anonymity to describe information the committee had not publicly released. “She gave us the name of Samuel Armes as the name of the individual who wrote the document.”

[snip]

The select committee investigators said they found Armes to be more forthcoming than Flores, who they said exhibited a “general apprehension.” Flores didn’t respond to messages and emails seeking comment.

“She acted like she didn’t know what it was at all,” said one of the investigators.

The two investigators said Flores indicated she had shared the document with Tarrio to impress him during a sensitive phase in their relationship and disclaimed specific knowledge about its contents.

The Stone-related witnesses very carefully manipulated the J6C, and Flores’ decision to testify may be an example. At the very least, Pezzola may have basis to demand that Kelly immunize Flores.

Another problem is that Jocelyn Ballantine is formally on the government response. I’ve noted before how insanely stupid it is for DOJ to have her in an increasingly senior role in the January 6 committee, and discovery disputes like this are precisely why.

The third problem with all this is that DOJ should be able to get Google metadata associated with the document to provide more clarity about the document. Perhaps a later witness will explain efforts to do so (thus far, it has just been introduced as an attachment to a Telegram text). But there are outstanding questions that may have answers.

In any case, this is now the second time that J6C’s refusal to turn over transcripts has endangered this prosecution.

Yes, It Turned Out January 6 Committee Endangered the DOJ Investigation by Withholding the Jeremy Bertino Transcript in June

January 12, 2023/25 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

I often get accused of being an uncritical booster for DOJ on the January 6 investigation. In reality, I have focused my criticism on real problems with the investigation.

In fact several of the criticisms I’ve raised have borne out in recent days, as an attorney-client conflict that should have been identified in June threatened (and still threatens) to bollox the Proud Boy Leader trial, and with it the larger effort to tie Trump’s immediate associates with the crime scene.

Twice, for example, I’ve discussed how central Joe Biggs’ actions the day of the attack were to understanding the larger event. In the first, I described how Biggs’ chumminess with FBI agents led them to overlook his plans for a terrorist attack on the Capitol.

Something brought Joe Biggs, Florida Oath Keepers Kenneth Harrelson and Jason Dolan, along with former Biggs employer Alex Jones to the top of the East steps, along with the mob that Jones brought on false pretenses. Shortly thereafter, Florida Oath Keeper head Kelly Meggs would bring a stack of Oath Keepers through the same door and — evidence suggests — in search of Nancy Pelosi, whom Meggs had talked about killing on election day.

Joe Biggs kicked off the riot on the West side of the building.

Then he went over to the East side to join his former employer Alex Jones and a bunch of Oath Keepers, led by fellow Floridians, to lead a mob back into the Capitol.

West side. Joe Biggs. East side. Joe Biggs.

This is the guy a couple of FBI Agents in Daytona believed was a credible informant against Antifa.

A month later, I described how problematic it was that an AUSA who played a part in Sidney Powell’s efforts to spread false claims about Mike Flynn and Joe Biden before the 2020 election had a role (now reportedly expanded) in overseeing the prosecution of Biggs.

Because of Joe Biggs’ role at the nexus between the mob that attacked Congress and those that orchestrated the mob, his prosecution is the most important case in the entire January 6 investigation. If you prosecute him and his alleged co-conspirators successfully, you might also succeed in holding those who incited the attack on the Capitol accountable. If you botch the Biggs prosecution, then all the most important people will go free.

Which is why it is so unbelievable that DOJ put someone who enabled Sidney Powell’s election season lies about the Mike Flynn prosecution, Jocelyn Ballantine, on that prosecution team.

All that was clear by September 2021.

In that same time period, I was complaining and complaining and complaining about DOJ’s lackadaisical approach to attorney conflicts, first as John Pierce racked up 20 clients, most who served as a firewall to Biggs and the other Proud Boy leaders, and later as DOJ waited three months before inquiring into Sidney Powell’s alleged role in funding some of the Oath Keeper’s defense teams.

The importance to the Trump investigation of getting the militia conspiracies that implicate Roger Stone and Alex Jones right is one of the reasons I argued, in June 2022, that it was urgent for the Proud Boys’ prosecution team to get Jeremy Bertino’s transcript sooner rather than later.

On June 6, DOJ charged the Proud Boy Leaders with sedition. As I noted at the time, the single solitary new overt act described in the indictment involved Jeremy Bertino, Person-1, seeming to have advance knowledge of a plan to occupy the Capitol.

107. At 7:39 pm, PERSON-1 sent two text messages to TARRIO that read, “Brother. ‘You know we made this happen,” and “I’m so proud of my country today.” TARRIO responded, “I know” At 7:44 pm. the conversation continued, with PERSON-1 texting, “1776 motherfuckers.” TARRIO responded, “The Winter Palace.” PERSON-1 texted, “Dude. Did we just influence history?” TARRIO responded, “Let’s first see how this plays out.” PERSON-1 stated, “They HAVE to certify today! Or it’s invalid.” These messages were exchanged before the Senate returned to its chamber at approximately 8:00 p.m. to resume certifying the Electoral College vote.

Just days earlier, as part of a discovery dispute, prosecutors had provided this (dated) discovery index. For several reasons, it’s likely that at least some these entries pertain to Bertino, because the CE ones are from the Charlotte office, close to where he lives, because he’s one of the three uncharged co-conspirators of central importance to the Proud Boys efforts, and because we know FBI did searches on him.

In a hearing during the day on June 9, the Proud Boys’ attorneys accused DOJ of improperly coordinating with the January 6 Committee and improperly mixing politics and criminal justice by charging sedition just before the hearings start. In the hearing there was an extensive and repeated discussion of the deposition transcripts from the committee investigation. AUSA Jason McCullough described that there had been significant engagement on depositions, but that the January 6 Committee wouldn’t share them. As far as he knew, the Committee said they would release them in September, which would be in the middle of the trial. Joe Biggs’ attorney insisted that DOJ had the transcripts, and that they had to get them to defendants.

Judge Tim Kelly ordered prosecutors that, if they come into possession of the transcripts, they turn them over within 24 hours.

Hours later, during the first (technically, second) January 6 Committee hearing, the Committee included a clip from Bertino describing how membership in the Proud Boys had tripled in response to Trump’s “Stand Back and Stand By” comment.

His cooperation with the Committee was not public knowledge. I have no idea whether it was a surprise to DOJ, but if it was, it presented the possibility that, in the guise of cooperating, Bertino had just endangered the Proud Boy sedition prosecution (which wouldn’t be the first time that “cooperative” Proud Boys proved, instead, to be fabricators). At the very least, it meant his deposition raised the stakes on his transcript considerably, because DOJ chose not to charge him in that sedition conspiracy.

Today, in response to a bid by Dominic Pezzola and Joe Biggs to continue the trial until December, DOJ acceded if all defendants agree (Ethan Nordean won’t do so unless he is released from jail). With it they included a letter they sent yesterday to the Committee — following up on one they sent in April — talking about the urgency with which they need deposition transcripts.

We note that the Select Committee to Investigate the January 6th Attack on the United States Capitol (“Select Committee”) in its June 9, 2022 and June 13, 2022, hearings extensively quoted from our filings in active litigation and played portions of interviews the Select Committee conducted of individuals who have been charged by the Department in connection with the January 6th Attack on the United States Capitol.

It is now readily apparent that the interviews the Select Committee conducted are not just potentially relevant to our overall criminal investigations, but are likely relevant to specific prosecutions that have already commenced. Given this overlap, it is critical that the Select Committee provide us with copies of the transcripts of all its witness interviews. As you are aware, grand jury investigations are not public and thus the Select Committee does not and will not know the identity of all the witnesses who have information relevant to the Department’s ongoing criminal investigations. Moreover, it is critical that the Department be able to evaluate the credibility of witnesses who have provided statements to multiple governmental entities in assessing the strength of any potential criminal prosecutions and to ensure that all relevant evidence is considered during the criminal investigations. We cannot be sure that all relevant evidence has been considered without access to the transcripts that are uniquely within the Select Committee’s possession.

The discovery deadline for the Proud Boy case is tomorrow. If DOJ put Bertino before a grand jury and he said something that conflicts with what he told the Committee, it could doom his reliability as a witness, and with it the Proud Boys case, and with it, potentially, the conspiracy case against Trump.

Less than a week before I wrote that, there’s reason to believe, DOJ had flipped a key witness in the case.

It appears that DOJ did not get Jeremy Bertino’s transcript until around December 7. DOJ promised to give transcripts to the defendants within 24-hours after they received them, and DOJ provided 16-January 6 Committee transcripts on December 8.

And we now know the Bertino transcript was utterly critical to preparing for the trial, which is about to kick off. That’s because, in his deposition with the committee, Bertino explained at length both what appeared to be an attempt, by Joe Biggs’ attorney Dan Hull, to tie representation in a civil lawsuit to a deposition in the trial, and because Bertino had conversations with Hull on the day his girlfriend’s home was searched (which is probably when the FBI found the unregistered weapons described in Bertino’s plea paperwork).

A Yes. So I’m going to go back in my memory and try to remember the first time that I spoke with him. I believe it was after I received a civil suit from a church. I reached out to Enrique Tarrio and said, hey, I just got this subpoena or notice of civil suit. I think I need an attorney. And he’s like, oh, well, I’ll talk to Dan, my attorney, and I’ll see if he’ll take it for you. So I said okay. Couple of weeks went by, I didn’t hear anything. I got back in touch with Enrique and asked him, I said, hey, have you talked to your lawyer? And he’s, like, oh, yeah, Dan said he’ll do it for you pro bona because you were stabbed, but he wants to talk to you.

And so he sent me his phone number and I called Dan. I can’t remember when, what date, I don’t remember the specific details, but I do remember calling him and him basically asking me — or I was asking him about representing me in the case and he said oh, sure, sure, sure, we’ll get to that. But he was interested in possibly having me take the stand in the Joe Biggs’ trial about my stabbing to show why Joe was wearing body armor when he was in D.C. because there was a lot of talk after I was stabbed about guys making sure you had a stab proof vest on and stuff like that.

So I think his original intent was to get me on board to help his client. And then the next — I believe the next interaction I had was when I — Jay Thaxton reached out to me and was looking for representation for his deposition. And I said, hey, give this guy Dan a call. I sent him Dan’s number. And I guess Dan took care of his deposition, which I, you know, when I kind of heard what happened there, that’s when I became reluctant to have him represent me in this.

He didn’t seem very stable on the phone. I started to really listen to when he was talking and his rants, and I was, like, okay, this guy– I don’t think this guy’s great for me.

And then the morning that the FBI raided my girlfriend’s house I reached out to him because he was the only attorney that I knew and I was just kind of asking him for advice on how to handle everything.

And I specifically asked him for a retainer, like, can we sign a retainer paperwork, and he was, like, not right now, not right now. And I said okay.

Then a few days later, he asked — he called me — he would call me randomly late at night and go on, like, an hour rant about how the Proud Boys were little girls and just, I mean, off the rail conversations. I didn’t know what he was talking about. I was, like, my brain was popping trying to figure out what he was talking about. Then I believe he came to me and said, well, I’m going to — he said, do you want me to accept service on your behalf for the congressional thing, he said, but I’m not going to be able to be there because that date doesn’t work for me, so you’re going to have to go do it on your own.

I said no — and this was on a phone conversation, not a text conversation — I said no. He’s like, well, take 48 hours and think about it. This was on like a — I don’t even remember what day, but I believe it was the day before he actually accepted service from you guys. And he never got confirmation from me to accept service.

He said, well, just take 48 hours and think about it. I said, okay.

Next phone call I got from him was, hey, I accepted service, your date for your deposition is this day, and I’m not going to be there so you’re going to be on your own.

And that is pretty much when I cut off contact, I stopped responding to his calls and his text messages, and I hired Mr. Wellborn.

Bertino’s prior conversations with Hull were made all the more urgent because Norm Pattis, Alex Jones’ attorney, just got kicked off the case after having his license suspended in Connecticut for violating the Sandy Hook protective order, something we all knew was coming since November. [Update: Judge Tim Kelly is letting Pattis stay on the team, though it’s unclear in what role.]

Yesterday and today, Judge Tim Kelly hammered out some plan whereby Hull will be prevented from questioning Bertino, but that in no way eliminates the conflict. That in no way eliminates the risk of having Hull serve as the sole attorney in a case where he had privileged conversations with one of the key cooperating witnesses.

The J6C Committee is significantly to blame about this — at least by the time Bertino’s plea became public, they had to have recognized this conversation needed to be shared with prosecution.

But DOJ itself should have raised conflict issues with Pattis. At the time he joined Biggs’ team last summer, he was already representing Jones’ sidekick, Owen Shroyer, who had a bunch of calls with both Ethan Nordean and Biggs in advance of and during the attack.

Other, more prominent members of the Proud Boys appear to have been in contact with Jones and Shroyer about the events of January 6th and on that day. Records for Enrique Tarrio’s phone show that while the attack on the Capitol was ongoing, he texted with Jones three times and Shroyer five times.124 Ethan Nordean’s phone records reflect that he exchanged 23 text messages with Shroyer between January 4th and 5th, and that he had one call with him on each of those days.125 Records of Joseph Biggs’s communications show that he texted with Shroyer eight times on January 4th and called him at approximately 11:15 a.m. on January 6th, while Biggs and his fellow Proud Boys were marching at and around the Capitol.126

Meanwhile, the emergency motion to keep Pattis on the trial team claimed that both he and Hull are representing Jones.

He was suspended for disclosing confidential medical records to other lawyers working on related matters for our joint client, Alex Jones;

This is insanity! You’ve got two lawyers, both facing major ethical challenges, jointly representing Biggs, Jones, and Shroyer in prosecutions aiming to demonstrate that after Trump asked him to lead a mob to the Capitol, Jones coordinated the delivery of that mob to the Proud Boys.

And Pattis’ suspension will upend the prosecutions of both Shroyer — who at least claimed he would plead guilty at the end of this month — and a guy named Doug Wyatt, who has long been pegged by researchers as one of the rioters who seemed like he might be coordinating with others.

While a lot of people were wailing that J6C was way ahead of DOJ, I was raising concerns about the things that may upend the most important prosecution to date: that Bertino transcript and attorney conflicts.

It turns out I had reserved my complaints for the stuff that, as the trial kicks off, could be the thing that sinks it.

Witnessing the Proud Boys

December 13, 2022/23 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

As I laid out here, defense attorneys in the Proud Boy leaders case have recently claimed that the government is pressuring potential defense witnesses to dissuade them from testifying.

Proud Boy defense attorneys are alleging that prosecutors are pressuring their defense witnesses with threats of prosecution. One person about whom their making the claim — about MPD lieutenant Shane Lamond, who has been suspended since last February under investigation that he helped the Proud Boys — their complaints are not credible. About others — including a female witness who might either be journalist Amy Harris, who spent a lot of time with Tarrio after he was released and to whom he said a lot of obvious self-exonerating statements, or Eryka Gemma, the woman who gave Tarrio a plan about The Winter Palace — defense attorneys claim they can provide sworn statements that prosecutors interviewed a witness without her attorney present. (I don’t trust either side in this case, so we shall see what actually gets filed.)

That is, as with the Oath Keeper trial, defendants are claiming that prosecutors are making witnesses unavailable with threats of prosecution (and as with the Oath Keeper trial, only some of those claims are credible).

The original complaint was aired in Enrique Tarrio’s bid to get his indictment thrown out unless DOJ immunizes Lieutenant Shane Lamond, an MPD cop whom Tarrio would alert to Proud Boy plans in advance. Tarrio submitted an updated motion to dismiss after the contentious December 2 hearing where this was aired, in which he argued that because the discovery he got didn’t show evidence of Lamond committing a crime, the government’s recent warning to Lamond that he’s at risk for an obstruction charge must be no more than an attempt to dissuade him from testifying in Tarrio’s defense.

During the past two years, the investigation, including the production of millions of pages of discovery, countless phone records and data dumps, thousands of hours of videos, and imbedded CHS informants, there has been no clear evidence of Lamond engaging in any illegal activity. The government was informed by the defense months ago of their intention to call Lamond to testify. At no point was Lamond in danger of being prosecuted, until now. On the eve of trial, the government contacted counsel for Lamond and informed him that Lamond’s actions might be considered obstruction of justice into Tarrio’s investigation and he may be prosecuted. Waiting until now is a tactical decision by the government to prevent Tarrio from exercising his constitutional right to present a defense. Knowing that Lamond’s testimony would exonerate Tarrio at trial and depriving Tarrio of his constitutional right is impermissible.

Preventing Lamond from testifying by holding an ostensible continuing investigation over his head violates Tarrio’s Sixth Amendment right to compulsory process of witnesses who would testify in his defense. If the government declines to immunize Lt Lamond, then the indictment against Tarrio should be dismissed.

But even in Tarrio’s description of his contacts with Lamond, the exchange sounds as much like a cover story as anything else.

Tarrio informed Lamond of the Proud Boys January 6 plans; to wit: they would not be wearing colors to protect themselves from being attacked and stabbed by Antifa as they had been on two previous occasions; they planned to be present to watch Trump’s speech; Tarrio planned to speak at the rally; they planned to protest the results of the election, and later that night they planned to party with plenty of beer and babes.

The Proud Boys eschewed colors to blend in, not for protection. There’s no evidence they ever planned to attend Trump’s speech (indeed, their choice to skip it is one detail that undermines all their excuses).

This particular challenge is highly unlikely to work. Lamond was suspended in February (not coincidentally shortly after FBI fully exploited Tarrio’s phone and even before Tarrio himself was charged), which wouldn’t have happened without fairly damning evidence. And back when the suspension was first disclosed, Tarrio made light of the contacts.

But Tarrio also said that during marches, Lamond would tell him the location of counterdemonstrators. Tarrio said that was so his group could avoid conflict, though after one violent night of demonstrations, police accused the Proud Boys of roaming the city looking for and instigating fights, targeting people they believed identified as antifa, or antifascists.

“He was just a liaison officer for when we held rallies,” Tarrio said of Lamond. He denied their relationship extended beyond that and said he is not a confidential informant for anyone on the D.C. police force.

“They’re just trying to get anybody at this point,” Tarrio said of investigators. “I only told him, ‘We’re coming into town and we’re going to hold this protest.’ That’s as far as the relationship went.”

Tarrio has been pursuing this line of defense since August, with little traction. Nothing is new about this scrutiny of Lamond, so the claim DOJ only recently floated some legal jeopardy doesn’t hold up.

Nevertheless, there have been several additional filings explaining the basis for the claims that the government was trying to make defense witnesses unavailable. In response to prosecutors’ observation at the hearing that Nordean was making allegations without backup, for example, Nordean’s attorneys submitted a “notice” of witness intimidation that provided few new details (though did submit the 302 for that specific witness to Judge Tim Kelly).

On December 2, counsel added there was evidence that after one such witness informed the government that she did not agree with the government’s claim that Nordean and others had conspired to attack the Capitol or use violence on January 6, a government prosecutor only then announced—in the same November 2021 interview—that the witness would be prosecuted for an offense. Shortly thereafter, counsel continued, an agent called this witness to advise that the prosecutor’s charging threat was inflated. In response, AUSA Erik Kenerson stated in the December 2 hearing that the notion that the “[g]overnment has somehow pressured witnesses, threatened witnesses, gone to witnesses when they were represented by counsel without counsel present, all of that is just categorically false.” The government added, “there has been nothing that the Government — that — has done that would warrant putting John Does on a witness list.”

The filing provided an excuse to reveal the identity of and submit a declaration from the witness, Adrienna DiCioccio, which would otherwise be sealed. She described how, in a November 2021, she told FBI Agents and prosecutors that she didn’t think Nordean and others were planning for violence on January 5.

During this second interview, the agents and prosecutors asked for my recollections about the evening of January 5 in the Airbnb residence where Ethan and others were gathered. I do not recall the specific words I used, but I informed the interviewers generally that I disagreed with the suggestion that Ethan and the others in his group were planning violence or an attack on the Capitol on January 6. I generally informed the agents and prosecutors that, as someone involved in planning peaceful events with the Proud Boys in the past, I disagreed with their suggestion that Ethan and others in the Airbnb were planning violence the following day in D.C.

But as to the substance of Nordean’s complaint — that the government was trying to pressure her not to testify by hanging criminal prosecution over her head — even DiCioccio’s filing undermined that, to say nothing of details provided in the government’s response. Most importantly, a transcript excerpt from an earlier interview shows she was warned of potential criminal exposure in a September 2021 interview, before she provided the testimony that — Nordean claims — led prosecutors to raise the specter of prosecution.

Ms. DiCioccio was interviewed twice: once in September 2021, and once in November 2021. It is the second interview that Nordean references and that is largely the subject of Ms. DiCioccio’s declaration. The transcript of Ms. DiCioccio’s first interview, which was produced to the defense in June 2022, belies any claim that the government only informed her of her potential criminal liability after “she did not agree with the government’s claim that Nordean and others had conspired to attack the Capitol or use violence on January 6,” as Nordean contends. Id. The below quote is from page 202 of the transcript of the first interview:

MS. DiCIOCCIO: Okay, because you guys were mentioning, you know, earlier, the other person cooperated very well with everything. You know, turned themselves in. I know you guys have things to go over, but, what am I looking at, at the moment? Should I be really scared? Should I be –

[AUSA]2 : The investigation is ongoing. Decisions are still being made. I mean, there are criminal charges that are out there, potentially, and maybe even likely. But it all depends on what we’re looking at (indiscernible).

MS. DiCIOCCIO: Okay.

[AUSA]: Again, I would say, let’s keep the lines of communication open.

MS. DiCIOCCIO: Yeah.

[AUSA]: So that we can have those types of conversations when it’s time to pull those types of triggers.

MS. DiCIOCCIO: Okay.

In other words, Ms. DiCioccio was informed in September 2021, well before the interview during which Nordean claims she was threatened with charges for refusing to tell the government what it wanted to hear, that she “potentially, maybe even likely” faced criminal charges. This was not news to her: video evidence of her offense conduct captures her saying, “Are we all gonna get arrested?” as she entered the Capitol building. After the first interview, Ms. DiCioccio agreed to voluntarily meet with prosecutors and agents again in November. As noted above, Ms. DiCioccio’s declaration is inaccurate, and the government submits that the FD-302 submitted by counsel describes an unremarkable interaction between prosecutors, FBI agents, and a potential cooperating witness.

2 The AUSA who participated in this interview was not any government counsel of record in this case.

The government response also shows that, not only did Nordean’s attorneys not submit anything to substantiate the allegation that the government met with DiCioccio without her retained counsel present, they provided her with information on how to get one.

Ms. DiCioccio’s declaration does not substantiate Nordean’s inflammatory accusations. For example, contrary to counsel for Nordean’s representations at the December 2, 2022, hearing, Ms. DiCioccio does not assert in her declaration that she had counsel who was not present during the interview. See Dec. 2, 2022, Hr’g Tr. at 58; 579-1. Nor does she say, as defense counsel asserts, that she had an attorney at the time of the interview. The FD-302 instead memorialized that the prosecutor suggested Ms. DiCioccio seek counsel and went so far as to provide her with a form to help her obtain a court-appointed one. In other words, rather than seeking to circumvent Ms. DiCioccio’s access to counsel (as Nordean wrongly asserted), the government affirmatively facilitated it.

There’s nothing all that compelling about the fact that a witness who breached the Capitol might be at legal exposure herself. While snide, the government suggests that DiCioccio was just upset because of her own criminal exposure (criminal exposure that, over a year later, has yet to be charged).

It is not surprising that the subject of a criminal investigation may be upset after being questioned about her conduct that led to that investigation. But any unease on Ms. DiCioccio’s part was not caused by impropriety by the government. It was instead caused by her own criminal conduct on January 6, 2021, and the fact that she may have to reckon with that conduct.

And again, all this happened long before any talk of trial witnesses.

One part of Zach Rehl’s parallel complaint might have more merit though (or is, at a minimum, of some interest procedurally).

It was filed — as was Nordean’s “notice” — on December 9, a week after the contentious hearing. But that would also put it more than a week after Rehl co-traveler Isaiah Giddings’ plea deal, in which he described that he didn’t even know the vote certification was happening on January 6 but he followed Rehl along obediently. There were a number of things in Giddings’ statement of offense that implicate Rehl, including that Rehl believed “someone had to do something” about the purportedly stolen election and that Rehl tried to find some bear spray in the middle of the riot. But as Rehl attorney Carmen Hernandez notes in the filing, Giddings did not admit to a plan to obstruct the vote certification.

Despite an inordinately lengthy Statement of Offense for a misdemeanor and multiple mentions of Mr. Rehl, there is no assertion that Mr. Rehl had a plan to interfere with Congress by force or corruptly.

Much of the rest of Hernandez’ filing requests either that Kelly immunize Giddings’ two co-defendants, Brian Healion and Freedom Vy (whom she doesn’t name), or sever Rehl from his own co-defendants and delay trial until after Healion and Vy’s case is resolved, making them available as witnesses.

At this level, this is just tactical. DOJ seems to be delaying a bunch of the Proud Boy cases until after the Proud Boy leader trial, but for reasons that arise from managing a larger conspiracy. Healion and Vy are only differently situated from DiCioccio in that they’ve already been charged, but they’re both genuinely implicated themselves.

Of more interest is Hernandez’ complaint about Jeff Finley (again, she doesn’t name him), the last co-traveler with Rehl the day of the attack. As she describes, Finley pled guilty last April, but his July sentencing was continued until February, putting it, like the Philly area Rehl co-travelers, after the trial.

One of the witnesses noted above entered a guilty plea to a misdemeanor on April 6, 2022.3 The statement of facts entered in the case shows that the witness does not implicate Mr. Rehl in any attempt to interfere with Congress by force or corruptly. Sentencing in the case was originally 4 scheduled for July 19, 2022. At the request of AUSA Jason McCullough, the July sentencing was vacated. Sentencing is now to be scheduled on February, 13, 2023 or a later date, after Mr. Rehl’s 5 trial is completed. Because a defendant retains a right to assert a claim to remain silent under the 6 Fifth Amendment until after sentencing isimposed, Mitchell v. United States, 526 U.S. 314 (1999), that witness is now unavailable to Mr. Rehl. By delaying the sentencing of this witness until after Mr. Rehl’s trial has concluded, the government has placed that witness outside Mr. Rehl’s Sixth Amendment right to compulsory process and has impeded Mr. Rehl’s right to present a complete defense.

As with Giddings’ statement of offense, Hernandez judges that Finley’s doesn’t support the charges against Rehl, though it does incriminate him. Plus, there is at least one additional Finley proffer that was provided to the Proud Boy leaders by last May. But given other discovery deadlines, Hernandez should know by now if such a proffer was expected to result in trial testimony (in which case, she would have no problem obtaining his testimony as a government witness).

This, too, is tactical (and an effort to preserve all this for appeal). But I find it curious that Finley also objected to testifying under subpoena.

Undersigned counsel has spoken to counsel for each of the three witnesses. All three have 2 indicated that if subpoenaed to testify, their clients would assert their Fifth Amendment rights to remain silent in light of the posture of their own cases. The delays that have made these witnesses unavailable are attributable to government conduct.

That doesn’t seem to accord with being a voluntary, cooperative witness for DOJ. It would suggest that he may still face vulnerability even in spite of his plea agreement, such as if DOJ discovered something he said in a proffer was not true.

The Proud Boys, far more even than the Oath Keepers, had ties to a great number of people who have their own exposure for January 6. And unlike the Oath Keepers, rather than flipping their way up to the leaders, DOJ seems to be starting with this leader conspiracy, with the likelihood of follow-on charges for others after the fact (in fact, Stewart Rhodes’ very good attorneys, James Bright and Phil Linder, just replaced John Pierce as Joe Biggs’ co-traveler Paul Rae’s defense attorneys). That’s an unusual way of prosecuting a complex conspiracy (though as I’ve written, the Proud Boy leaders may also be a necessary step before prosecuting those between them and Trump). But at least partly as a result, that means there are a great number of Proud Boys and associates out there, potentially friendly witnesses, but also defendants themselves.

And that, the Proud Boy leaders claim, amounts to an unconstitutional deprivation of defense witnesses

Update: Here’s the government response to Rehl (it cites another complaint from Nordean). In the section on Finley, DOJ says sometimes the government finds inculpatory video after someone pleads guilty.

The government notes – without suggesting that this is true in Mr. Finley’s case – that the January 6 investigation is replete with instances where a defendant has entered a plea of guilty only to have the government or counsel identify additional instances of criminal conduct by the defendant through diligent review of videos. Thus for many defendants, even those who have been sentenced, it is possible that defense counsel may believe that their client continues to have a legitimate Fifth Amendment privilege.

“We Have a Plan. I’m with Rufio” … But the Government Does Not

December 2, 2022/23 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

There was a big hole in the middle of the Oath Keepers prosecution that likely was a big part of the reason jurors didn’t convict on more of the conspiracy charges. Just after 2:30PM the day of the attack, field leader Michael Greene called Stewart Rhodes. A minute later, Kelly Meggs called Rhodes, who conferenced Meggs into the ongoing call with Greene.

Altogether, the three men were on the phone together for 1 minute 37 seconds, and Rhodes and Greene were on the call for several minutes afterward. The call immediately precedes the First Stack busting into the Capitol, and happens at the same time that Joshua James and others are racing to the Capitol on their golf cart.

By context, it appears to be the moment where Rhodes decided to use the attack on the Capitol to advance his plan to decapitate the government. But for all the cooperating witnesses DOJ flipped in the Oath Keeper case, they never got any of these three to cooperate, and so never were able to prove what was said on the call. On the stand, Rhodes made up some bullshit about difficulties connecting.

While by context it seems to be the moment that these three leaders made a decision on operationalizing their plan, which they then directed others to implement. But absent a cooperating witness from that call, they didn’t have that proof.

And so they got limited conspiracy convictions.

There’s a similar big hole in the middle of the Proud Boys case, one — a status conference just made clear — may be even more fatal for the government’s case. In the time on the evening on January 5 when everyone was trying to figure out what to do given the arrest of Enrique Tarrio, Ethan Nordean and Joe Biggs were temporarily AWOL.

When Biggs reappeared, he described “meeting w[i]th a lot of guys” and that “We have a plan. I’m with rufio,” that is, Nordean.

To this day, even those of use who’ve followed the case closely don’t even know with whom Biggs and Nordean met, much less what the plan was.

And that’s a problem because every Proud Boy witness, even senior prosecution cooperating witnesses Jeremy Bertino and Charles Donohoe, will testify that they knew of no plan to attack the Capitol in advance of January 6.

Absent that, DOJ will point to the plan to meet at the Washington Monument, the ways the Proud Boy plan deviated from the norm (including ditching Proud Boy colors to blend in), the orderly marching, the choice not to show up at Trump’s speech at all and instead to go to the Capitol and rile up a mob of normies.

They’ll put cooperating witness Matthew Greene on the stand to explain that he understood they were crowding the Capitol to pressure Pence.

They’ll presumably put their latest cooperating witness, Isaiah Giddings, on the stand to admit that, “before January 6, Giddings did not know that Congress would be certifying the election results in the Capitol building on January 6,” but that in advance of the attack, “leaders, including Rehl, Biggs, and “Rufio,” would meet separately from the larger group.” Giddings will testify that after the attack, “Rehl, and the other Proud Boys were laughing and celebrating what they had done; namely, stopping the certification proceeding.”

They’ll point to comments afterwards, taking credit for it all.

Tarrio asserted to the Proud Boys “Elders” who had approved his formation of the MOSD, “Make no mistake. We did this.” Similarly, Bertino told Tarrio “You know we made this happen,” and “I’m so proud of my country today,” to which Tarrio replied, “I know.” The next day, Rehl similarly told an MOSD chat group that he was “proud as fuck what we accomplished,”

There is far, far more evidence in the actions the Proud Boys took that day that they did have a plan and succeeded in implementing it beyond their wildest dreams. But they don’t have that plan.

And two likely developments will likely make proving they had a plan more difficult.

First, Proud Boy defense attorneys are alleging that prosecutors are pressuring their defense witnesses with threats of prosecution. One person about whom their making the claim — about MPD lieutenant Shane Lamond, who has been suspended since last February under investigation that he helped the Proud Boys — their complaints are not credible. About others — including a female witness who might either be journalist Amy Harris, who spent a lot of time with Tarrio after he was released and to whom he said a lot of obvious self-exonerating statements, or Eryka Gemma, the woman who gave Tarrio a plan about The Winter Palace — defense attorneys claim they can provide sworn statements that prosecutors interviewed a witness without her attorney present. (I don’t trust either side in this case, so we shall see what actually gets filed.)

That is, as with the Oath Keeper trial, defendants are claiming that prosecutors are making witnesses unavailable with threats of prosecution (and as with the Oath Keeper trial, only some of those claims are credible).

More damaging still for their case, an exchange at the end of a status hearing today suggested that Judge Tim Kelly is likely to prohibit the government from arguing that the Proud Boys were using other rioters are “tools” in their conspiracy (I wrote about this dispute here). That’s sound legally; the government argument doesn’t fit into existing conspiracy law. But it will make it difficult, if not impossible, for prosecutors to prove sedition, which requires the use of force. It is true that key Proud Boys expressed a goal to rile up the “normies” who would then carry out the violence on January 6. It’s even true that probably dozens of rioters said they were following the Proud Boys — but the prosecution here has shown no hint they would call those “normies” as witnesses. It is true that Ryan Samsel — the guy who kicked off the entire riot — had an exchange with Joe Biggs right before the attack. But DOJ never got Samsel to cooperate.

There’s a lot of evidence that the Proud Boys orchestrated the riot and conspired with others in doing so. But it seems likely that prosecutors have the same kind of evidentiary holes, including a potentially fatal one where the plan they finalized on January 5 is, that the Oath Keeper prosecutors did.

Update: On a late re-read, I realized I left out a key caveat on the issue of a plan: People do acknowledge there was a plan. That plan included meeting at the Washington Monument instead of at Trump’s speech, for example. The question is whether it included the attack on the Capitol (the language I’ve added, in bold).

On Trump, the Anti-Semites, and the Coup Attempt: The Import of Nick Fuentes’ Reference to January 6

November 28, 2022/61 Comments/in emptywheel /by emptywheel

The first thing you should ask when you hear about Trump and the white nationalist is … which one?

After all, it wasn’t that long ago that Stephen Miller waltzed into Kevin McCarthy’s office on the day McCarthy became the presumptive nominee for Speaker of the House. Even if Trump gets the Republican nomination in summer 2024, that’s still twenty months off. But if Miller is driving the Republican House majority’s policy choices in the interim, it will have immediate effect. It will continue an institutional commitment from the Republican Party to policies built to respond to and feed more hate.

Plus, part of the loudest outrage surrounding Trump’s paling around with neo-Nazi Nick Fuentes — from people like Mike Pompeo and Chris Christie — is significantly a desire to undercut Trump in advance of a primary. If you’re opposed to white nationalists in the Republican Party, take on Miller’s central role in the party as a whole and also Trump’s continued ties with fascists.

If you’re a journalist who thinks the Fuentes dinner is newsworthy (it is!), then ask whether Miller’s continued central role in GOP policy is too.

Hell, if you’re a horserace politics reporter, consider writing a story about how damaging Miller’s policies have been for the GOP two midterm elections in a row.

And there’s a bit of the story that’s missing from most tellings of the story.

As Jonathan Swan tells it (with Zachary Basu), in addition to scolding Trump about his increased reliance on teleprompters, Fuentes also delivered the message that parts of the far right are disappointed with Trump, in part, because he has not supported January 6 attackers sufficiently.

Fuentes told Trump that he represented a side of Trump’s base that was disappointed with his newly cautious approach, especially with what some far-right activists view as a lack of support for those charged in the Jan. 6 Capitol attack.

Trump didn’t disagree with Fuentes, but said he has advisers who want him to read off teleprompters and be more “presidential.” Notably, Trump referred to himself as a politician, which he has been loathe to do in the past.

Fuentes also told Trump that he would crush potential 2024 Republican rivals in a primary, including Florida Gov. Ron DeSantis. Trump asked for Fuentes’ opinion on other candidates as well. [italics mine, bold Axios’]

Not only doesn’t this sound like an unplanned encounter — at least from Fuentes’ side — but it affirmatively sounds like the kind of constituent ask that politicians of all stripes make when they discuss whether to endorse a candidate or not. Fuentes hated Trump’s announcement speech — too canned! — but he also warned that Trump needs to do more to support those being prosecuted for their role in Trump’s coup attempt. In his own livestream about the meeting, after reeling off all the Stop the Steal events Fuentes had been part of organizing, Fuentes said he would back Ron DeSantis over a “moderate Trump.”

Politico’s Meredith McGraw, who was the first to report that Ye and Fuentes were traveling together, also included that comment, and described how Ye’s video about the meeting included both Alex Jones and Roger Stone, as well as Karen Giorno, who attended the meeting and who had a role in a 2016 story just after Stone presented Trump with his notebook of all the calls he had with Trump during the 2016 election.

West went on to say he told Trump, “Why when you had the chance, did you not free the January sixers? And I came to him as someone who loves Trump. And I said, ‘Go and get Corey [Lewandowski] back, go and get these people that the media tried to cancel and told you to step away from.’” The video includes photos of former advisers including Giorno and Roger Stone, and also conspiracy theorist Alex Jones.

Given how much of the rest of the discussion (and the private chat Ye posted afterwards) focuses on Jason Miller, who testified truthfully to the January 6 Committee, this also probably amounted to a request to get rid of Jason Miller, to get rid of Jason Miller in part because he won’t let Trump coddle Nazis and in part because he makes Trump use a teleprompter. This is how those close to Trump have always lobbied Trump on staffing decisions, after all.

The thing is, while virtually all reports of this meeting include the teleprompter comment, most don’t include the January 6 one.

While the NYT (Maggie bylined with Alan Feuer, one of the best journalists on January 6) described Fuentes’ role in pro-Trump mobs leading up to and on January 6, it doesn’t describe that Fuentes claimed about Trump’s insufficient support for those already charged. It also focuses exclusively on the America First arrests, not those with whom Fuentes organized mobs, like Alex Jones and associates.

During the dinner, according to a person briefed on what took place, Mr. Fuentes described himself as part of Mr. Trump’s base of supporters. Mr. Trump remarked that his advisers urge him to read speeches using a teleprompter and don’t like when he ad-libs remarks.

[snip]

Mr. Fuentes, who attended the bloody far-right rally in Charlottesville, Va., in 2017, is best known for running a white nationalist youth organization known as America First, whose adherents call themselves groypers or the Groyper Army. In the wake of Mr. Trump’s defeat in 2020, Mr. Fuentes and the groypers were involved in a series of public events supporting the former president.

At a so-called “Stop the Steal” rally in Washington in November 2020, Mr. Fuentes urged his followers to “storm every state capitol until Jan. 20, 2021, until President Trump is inaugurated for four more years.” The following month, at a similar event, Mr. Fuentes led a crowd in chanting “Destroy the G.O.P.,” and urged people not to vote in the January 2021 Georgia Senate runoff elections.

On Jan. 6, 2021, Mr. Fuentes led a large group of groypers to the Capitol where they rallied outside in support of Mr. Trump. The next day, Mr. Fuentes wrote on Twitter that the assault on the Capitol was “awesome and I’m not going to pretend it wasn’t.”

At least seven people with connections to his America First organization have been charged with federal crimes in connection with the Capitol attack. In January, Mr. Fuentes was issued a subpoena by the House select committee investigating the Jan. 6 attack on the Capitol seeking information about his role in it.

Other outlets, too, focused on the teleprompter comment but not the complaint about January 6 defendants: WaPo (which offers the most detailed account, from attendee Giorno), CNN, WSJ.

CBS described that Ye made a comment about January 6 in his video, just before he flashed images of Stone and Alex Jones.

The complaint that Trump has not done enough for already charged January 6 defendants (or, as Ye complained himself, not pardoned everyone) comes at a rather sensitive time. Of the January 6 defendants likely included in the seven Feuer cites, Christan Secor (holding the America First flag below) was sentenced in October by Trevor McFadden, who normally goes easy on January 6 defendants, to 42 months in prison.

More recently, the FBI arrested a group of 5 American Firsters in September, including former Fuentes deputy Joseph Brody (in the American flag mask and the suit in the picture above). One, Thomas Carey, is set to plead guilty on December 22, which will come with — at least — an interview on the others. And while DOJ portrayed groyper Riley Williams as having been radicalized by watching Nick Fuentes videos rather than in person, she was just jailed pending her February 22 sentencing, and any retrial on the hung charges (obstruction and abetting the theft of Nancy Pelosi’s laptop) might be easier if there was cooperation from others who were present in Pelosi’s office, as Carey may have been. Which is to say that the January 6 investigation into America First is getting closer to Fuentes himself.

But, particularly given Ye’s invocations of Stone and Jones in this context and Stone’s repeated complaints that Trump didn’t pardon him after January 6, those probably aren’t the only January 6 defendants Fuentes meant to invoke. Both Stone and Jones were named repeatedly during the Oath Keeper trial. Both are likely to be named in the upcoming Proud Boy Leaders trial. One Jones employee, Sam Montoya, pled guilty to parading on November 7. His plea agreement lacks the standard cooperation paragraph, which sometimes means that someone had to cooperate in advance to get the plea deal. And Jones’ sidekick, Owen Shroyer, is due to let Judge Tim Kelly know whether he plans on pleading at a status hearing tomorrow.

So the January 6 investigation is getting closer to Stone and Jones too.

Even some in Ye’s entourage have come under investigation, at least in Fani Willis’ investigation, for their role in Trump’s false voter fraud claims.

Trump’s meeting with Fuentes is a big deal. But it likely goes beyond, just, the fact that Trump was sharing Thanksgiving with noted anti-Semites. Both Ye and Fuentes used the meeting to raise Trump’s failures to protect those who helped his last attempt to seize power illegally.

And as Trump’s purported election campaign goes forward, those who participated in Trump’s coup attempt will likely continue to use their own exposure to leverage Trump’s.

Update: The Guardian just reported how Trump refused to criticize Fuentes.

Update: There are two other key America First defendants that have been sentenced, and got off easy. Most notably, Leo Ridge was permitted to plead down from obstruction to 1752, the more serious trespassing charge, after which Trevor McFadden sentenced him to two weeks in jail and a year of probation (meaning his punishment will be done around February).

And Matthew Baggott also pled to 1752, and was sentenced to three months. He’ll have a year of probation after he is released on Christmas eve.

Spy Versus Spy Amid the Proud Boys, Again

November 15, 2022/10 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

In the plea hearing for Nicholas Ochs and DeCarlo, Chief Judge Beryl Howell asked prosecutor Alexis Loeb whether the defendants had sat for the interview required by the standard plea deals. Loeb explained that, Ochs had but, for reasons pertaining to the ongoing investigation, FBI did not do such an interview with DeCarlo. I wondered, then, whether DOJ wanted to avoid discovery obligations to other Proud Boy defendants.

It’s something I had in mind as I read the various filings (Zach Rehl, Ethan Nordean, Enrique Tarrio, Joe Biggs, Nordean reply) that — NYT reported the other day — pertain to discovery about informants that the FBI had or developed among the Proud Boys. The gist of the complaints (as noted in the Biggs filing), which treat this as a Brady violation that merits dismissing the case, is that the FBI had records relating to Proud Boys who said they did not know of a plan to attack the Capitol in advance.

Biggs notes here on the open record that the Brady violations the parties continue to dispute — beginning with the dispute triggered by the Government’s late disclosure of a significant cache of Brady materials on August 13, 2021, or fifteen months ago — consistently go to a structural feature in all three of the Department of Justice’s superseding indictments in 21-cr-175. That feature and overarching issue is whether a Proud Boy conspiracy plan to obstruct the Biden-Harris vote certification or to commit sedition ever existed or could have existed. The Brady materials and discussions most at play now and since mid-2021 point up the increasing doubtfulness and high unlikelihood of the existence of a conspiracy. That is troublesome, and glaring. It continues to be the ‘elephant in the room’ of 21-cr-175.

It’s hard to know how seriously to take this. Some of these defense attorneys have been crying wolf from the start, claiming something turned over in timely fashion is exculpatory when it in fact shows really damning information.

In the August instance cited by Biggs, which NYT also wrote about, the informant was low-level and claimed to have shown up to insurrection late. Except Statements of Offense from members of the Kansas City suggest that the informant falsely told the FBI that violence had not come up in a meeting the night before the attack.

In the evening on January 5, 2021, defendant attended a meeting with co-defendants William Chrestman, Kuehne, and Ashlock, and others during which group safety was discussed. At some point during the meeting, another individual said that he did not come to Washington, D.C., to just march around and asked, “do we have patriots here willing to take it by force?” Defendant was shocked by this and understood that the individual was referring to using force against the government. Co-defendant Kuehne responded to the question by saying that he had his guns with him and, in essence, that he was ready to go. The individual who posed the question said that they should “go in there and take over.” [my emphasis]

That said, the statements of offense making such claims — here from Enrique Colon — come from defendants receiving really sweet plea deals in hte process, in multiple cases avoiding weapons charges or enhancements as well.

In the case of the two Nicks, they definitely coordinated with each other and premeditated a plan to stop the vote certification. But they appear not to have been part of any larger plan (they even attended Trump’s rally, which most Proud Boys did not). In other words, one thing that may be going on is that Biggs and Nordean implemented a plan developed along with Tarrio and some senior Proud Boys who weren’t in DC (such as the cooperating Jeremy Bertino), but didn’t tell the greater number of Proud Boys what that plan is in advance, something that makes the testimony of others appear exculpatory only because the Proud Boy leaders had kept a close hold on their plans.

According to Nordean’s reply to DOJ’s entirely sealed 21-page response, the government believes it was justified in withholding the documents under Rule 16(a)(2), which only requires sharing the documents if the pertinent witnesses testify.

The government argues that the sensitive materials were exempt from its discovery obligations under Rule 16(a)(2). ECF No. 538, p. 11. That is false because (1) the records at issue were not made by a government agent or attorney for the government in connection with investigating or prosecuting “the case,” i.e., United States v. Nordean, 21-cr-175, and (2) it is not just “internal government documents” Nordean seeks but the underlying information merely reproduced in government documents.

Nordean seems to be playing games about the bounds of “this” investigation here, and if the documents genuinely are not exculpatory, that would probably be a reasonable response. It’s a matter of whether this is an investigation into just the Proud Boy leaders, all the Proud Boys, or everyone involved in attacking the Capitol.

Separately, these are the files that (in a recent hearing), the defense attorneys were complaining about the heightened security procedures to access the documents, as Nordean lays out in his original filing.

[T]he government has made the extraordinary argument that these exculpatory materials cannot be produced directly to defense counsel. It has argued, successfully, that counsel must comply with the following procedure in order to access Brady information in this case:

(1) counsel must travel to an FBI office to review the materials in person;

(2) counsel may not receive copies of the materials but must take handwritten notes;

(3) counsel must then move the Court to produce the materials to the defendants, based on summary descriptions of the materials in their handwritten notes; and

(4) counsel must then file additional motions to secure this evidence for trial.

The complaint would be more convincing if the details of the earlier informant had not been published by the NYT, making it easy for investigators (and presumably all the other Proud Boys) to identify the informant. In the Oath Keeper case, too, the government is trying to hunt down which attorney(s), if any, sourced a NYT story about an Oath Keeper informant. (h/t Kyle Cheney)

Meanwhile, all this question about who is informing on whom leads me to return to the question of what happened to

Whallon Wolkind in all this (he’s the one top Proud Boy leader not known to have been charged or flipped), not to mention why Dominic Pezzola, alone among the remaining defendants in this case, didn’t join the challenge to access the informant files.

The usual suspects are wailing about how long this investigation is taking. Meanwhile, cases like this reveal the complexity of trying to prosecute key defendants while processing through a thousand others.

The Roger Stone Convergence at the Winter Palace

November 2, 2022/60 Comments/in 2016 Presidential Election, 2018 Mid-Term Election, 2020 Presidential Election, January 6 Insurrection /by emptywheel

There was a status hearing in the Owen Shroyer case last week that was so short it was over by the time I had entered the dial-in code. Shroyer, you’ll recall, is the Alex Jones sidekick who was charged for violating his specific prohibition on being an asshole at the Capitol. His lawyer, Norm Pattis, happens to be the lawyer who sent a large swath of Alex Jones’ data to the Texas Sandy Hook plaintiffs, and then presided over the $1 billion judgement in the Connecticut Sandy Hook lawsuit. On June 14, Pattis noticed his appearance on Joe Biggs’ legal team, effectively giving him visibility on how badly the discovery in the Proud Boy case implicates Shroyer and Jones and Ali Alexander. Shroyer appears to be stalling on his decision about whether he wants to enter a plea agreement — one that would presumably require some cooperation — or whether he wants to stick around and be charged in a superseding indictment along with everyone else.

Shroyer has until November 29 to make that decision, around which time I expect a Roger Stone convergence to become more clear.

The Roger Stone convergence has been coming for some time (I’ve been pointing to it for at 14 months). Yesterday, NYT reported that one means by which it is coming is in the dissemination of the We the People document laying out plans to occupy buildings — under the code “Winter Palace” — which the FBI found on the Enrique Tarrio phone it took over a year to exploit.

As I laid out here, the document is important because it shows Tarrio’s motive on January 6 in his assertion that “every waking moment consists of” planning for revolution.

41. Between December 30 and December 31, 2020, TARRIO communicated multiple times with an individual whose identity is known to the grand jury. On December 30, 2020, this individual sent TARRIO a nine-page document tiled, “1776 Returns.” The document set forth a plan to occupy a few “crucial buildings” in Washington, D.C., on January 6, including House and Senate office buildings around the Capitol, with as “many people as possible” to “show our politicians We the People are in charge.” After sending the document, the individual stated, “The revolution is important than anything.” TARRIO responded, “That’s what every waking moment consists of… I’m not playing games.”

And an exchange he had with now-cooperating witness Jeremy Bertino that they had succeeded in implementing the Winter Palace plan shows that Tarrio recognized that occupying buildings was part of his plan.

107. At 7:39 pm, PERSON-1 sent two text messages to TARRIO that read, “Brother. ‘You know we made this happen,” and “I’m so proud of my country today.” TARRIO responded, “I know” At 7:44 pm. the conversation continued, with PERSON-1 texting, “1776 motherfuckers.” TARRIO responded, “The Winter Palace.” PERSON-1 texted, “Dude. Did we just influence history?” TARRIO responded, “Let’s first see how this plays out.” PERSON-1 stated, “They HAVE to certify today! Or it’s invalid.” These messages were exchanged before the Senate returned to its chamber at approximately 8:00 p.m. to resume certifying the Electoral College vote.

The NYT story reveals that Eryka Gemma is the person who sent the document to Tarrio, but she was not its author.

As a part of the investigation, prosecutors are seeking to understand whether Mr. Engels has ties to a little-known Miami-based cryptocurrency promoter who may have played a role in the Capitol attack.

A week before the building was stormed, the promoter, Eryka Gemma, gave Mr. Tarrio a document titled “1776 Returns,” according to several people familiar with the matter. The document laid out a detailed plan to surveil and storm government buildings around the Capitol on Jan. 6 in a pressure campaign to demand a new election.

[snip]

The federal indictment of Mr. Tarrio says that the person who provided him with “1776 Returns” told him, shortly after it was sent, “The revolution is more important than anything.” That person was Ms. Gemma, according to several people familiar with the matter.

But Ms. Gemma was not the author of “1776 Returns,” which was written by others, first as a shared document on Google, the people said.

It remains unclear who the original authors were.

It may be unclear or detrimental to the sources for this story who originally wrote the document; it’s probably not to investigators who can simply send a warrant to Google.

And whether because investigators know who wrote the document or for some other reason (such as that they have just a few more weeks of pre-sentencing cooperation with Joel Greenberg), they’re trying to understand whether this document, laying out a plan to occupy buildings, had an analogue in the Florida-based riots that key Roger Stone associate, Jacob Engels, staged in 2018 in an attempt to thwart any delays in certification for Rick Scott (and Ron DeSantis, who gets a positive shout out by name in the Winter Palace document).

On Nov. 9, [2018] a group of about 100 angry protesters, including members of the Proud Boys, descended on the Broward County elections office, carrying pro-Scott and pro-Trump signs and protesting the recount.

The event drew support from several far-right activists in Florida linked to Mr. Stone — among them, Ali Alexander, who later organized Stop the Steal events around the 2020 election, and Joseph Biggs, a leader of the Proud Boys who has since been charged alongside Mr. Tarrio in the Jan. 6 seditious conspiracy case.

The NYT describes this line of inquiry as happening via two different sets of prosecutors, which is a sign of either convergence or simply the networked structure that DOJ’s approach, using parallel and (through Stone) intersecting, conspiracy indictments clearly facilitated (Shroyer’s prosecution team, incidentally, features an Oath Keeper prosecutor and a key assault prosecutor).

In recent months, prosecutors overseeing the seditious conspiracy case of five members of the Proud Boys have expanded their investigation to examine the role that Jacob Engels — a Florida Proud Boy who accompanied Mr. Stone to Washington for Jan. 6 — played in the 2018 protests, according to a person briefed on the matter.

The prosecutors want to know whether Mr. Engels received any payments or drew up any plans for the Florida demonstration, and whether he has ties to other people connected to the Proud Boys’ activities in the run-up to the storming of the Capitol.

Different prosecutors connected to the Jan. 6 investigation have also been asking questions about efforts by Mr. Stone — a longtime adviser to Mr. Trump — to stave off a recount in the 2018 Senate race in Florida, according to other people familiar with the matter.

While the NYT describes (breaking news!) that Engels was one of the people who in 2019, along with Tarrio, crafted an attack on the judge presiding over Roger Stone’s case, Amy Berman Jackson, it does not note that the Stop the Steal effort dates back two years earlier than the 2018 riot, to voter intimidation efforts that Stone pursued that look similar to the current drop box intimidation effort being disseminated via Trump’s shitty social media website (NYT does mention the Brooks Brothers riots in 2000 and notes the participants “apparently work[ed] with Mr. Stone” — more breaking news).

Nor does it describe the backstory to how Biggs showed up in Florida in 2018, fresh off his ouster from InfoWars after playing a key role in both the PizzaGate and Seth Rich hoaxes, both part of a Russian info-op that Stone played a key role in. But it’s part of the prehistory of the Proud Boys that prosecutors are now tracing.

I have no idea whether the very clear 2016 precedent is part of this. DOJ wouldn’t need to do (much) fresh investigation of it because Mueller and DC USAO did quite a bit of investigation before Bill Barr torched the investigation all to hell and then Trump pardoned Stone to avoid being implicated himself. But if it was part of this, no one who would share those details with NYT would know about it unless and until it was indicted. That’s even true of the 2019 incident; DOJ did at least some investigative work into the funding of that, the same questions being asked now about how Engels organized the 2018 riot.

But whether this investigative prong extends no further back than 2018 or whether it includes the Stone Stop the Steal activity that demonstrably paralleled a Russian effort, it does seem that DOJ is investigating how the prior history of the Proud Boys parallels these efforts to undermine democracy and did so in the place — Miami — where the Proud Boys, schooled by the master rat-fucker, are increasingly taking on an official role.

That may not be an investigation about Engels’ actions, directly (though he has long been in the thick of things). Rather, it may be an investigation into resources that were consistent throughout these developments.