Posts

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

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

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

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

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.

Why January 6 Committee Transcripts Are Urgent: Proud Boy Jeremy Bertino

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.

The fact that Matt Olsen, National Security Division head, is on this letter suggests the concern pertains to the militias (and, indeed, the charged militia witnesses who appeared were Tarrio and Stewart Rhodes). Similarly, Nick Quested’s testimony may be inconsistent with other information DOJ has obtained.

Some pundits who’ve never done any original reporting on the topic claimed upon seeing this letter that it’s proof DOJ has been “twiddling its thumbs” while the Jan6 Committee has been doing all the work.

They’re saying that, though, when DOJ fairly explicitly said that grand juries have interviewed witnesses that Jan6 — and so, by association, lazy pundits — may not be aware of.

These are the kinds of surprises that can kill entire cases, after a year and a half of painstaking investigation.

The “We the People Plan” Is Evidence of Tarrio’s Motive, But Not His Plan

As part of a renewed motion for bond for her client Zach Rehl, Carmen Hernandez released a copy of the “We the People” plan referenced in the indictments that include Enrique Tarrio. The document is disturbing and in some way reflects the plan to occupy the Capitol achieved during the insurrection on January 6. And it is evidence reflecting Tarrio’s — though not necessarily Rehl’s — motive. But it is not Tarrio’s plan.

We the People Plan

The plan itself consists of nine pages. The last two — intended for public consumption as a recruiting device — issue a demand for a new election on January 20, pledge fondness for Rand Paul and Ron DeSantis, and include a map.

The other seven pages lay out the plan to occupy Congressional office buildings and CNN but not the Capitol itself (one of the points Hernandez makes in her bond motion). The goal was to occupy the buildings with as “many people as possible inside these buildings” and then “present[] our demands in unity.”

The plan envisioned spending January 1 through 5, as well as on January 6 itself, recruiting as many participants as possible, using the public flier. Then, in advance of the attack on January 6, the buildings would be scouted by people wearing suits to blend in. For each building, the plan aspired to recruit a “covert sleeper” who would use a ruse to get inside the building and let others in, with a backup if the first person is discovered. This plan to have someone from the inside open doors to let others in does resemble something that happened on the East side of the Capitol, as Joe Biggs, the Oath Keepers, and the mob led there by Alex Jones all assembled in time for someone to open that door from inside.

The plan advocated using COVID masking to obscure identities (something none of the Proud Boys did, though one of Rehl’s co-travelers, as well as a few others, did a superb job of hiding his face via other means). It also proposed ways to distract by occupying other locations (like hotels and WalMart) and to block select roads in DC. There were conflicting chants — the same people who would chant “No Trump, No America” were also going to demand, “Free and fair elections,” which Trump lost. The plan advocating “sit[ting] in” key Senators’ offices, but then didn’t really understand what to do next.

One area where the plan most closely matches the one ultimately implemented by the Proud Boys was in timing: The mob was supposed to meet at 1PM, then an assessment would be made at 1:22PM if “enough people are around?,” then at 1:30, “Wait for sign from lead, storm the building.” Compare that timeline to this one put together by the Sedition Hunters. Both, importantly, were tied to the vote certification, not Trump’s speech.

The plan appears to have been developed by one or another of the “patriot” groups, which were separate from but with which the Proud Boys had some ties (and, at least in the case of some “Patriots” from Texas, fundraising ties). DOJ has only charged individual pairs of such rioters with conspiracy, even though there was a larger network passing such plans back and forth.

But this was their plan, not the Proud Boys’ plan.

Zach Rehl’s disproportionate charging

And that’s one of the points that Hernandez made in the bond motion. Rehl — and the other charged defendants — had no awareness of the document (though that would not include Jeremy Bertino, who is not currently a charged defendant).

The document was never shared or otherwise discussed with Mr. Rehl. 1776 Returns was sent to Mr. Tarrio by a female acquaintance. Mr. Rehl does not know the woman who sent the document and has not had any conversations with her. The government has represented that Tarrio did not forward the document to Mr. Rehl or the other defendants. And that Tarrio did not discuss the document or its contents with Mr. Rehl and the other defendants.

As I’ll show below, in the government’s theory of the conspiracy, in which Tarrio was a hierarchical head of the militia, that may not matter. The government has accused Rehl of following Tarrio’s plan, not this one.

Hernandez makes another point I find much more persuasive, though. Rehl is included in a sedition conspiracy with Tarrio, the hierarchical leader, Joe Biggs and Ethan Nordean, the onsite leaders who discussed an orally agreed plan starting on January 5, and Dominic Pezzola, whose actions were absolutely crucial from a tactical standpoint. Compared to them, he did play a smaller role in the conspiracy. As conspiracies work legally, that doesn’t necessarily help him much at trial, but this is a bond motion, and it might.

Hernandez cites one of Rehl’s co-travelers, who include Isaiah Giddings, Brian Healion, and Freedom Vy, stating that Rehl wasn’t really in charge and they just entered the Capitol to take a peak.

After the initial breach, [defendant] was with Zach [and two others]. [They] wanted to “go in and take a peek” and that they made the decision to enter the Capitol Building as a group. [Defendant] was curious as to what was going on inside the CapitolBuilding. . . . They left the building as a group.”

It’s true that these three men have, thus far, just been charged with a misdemeanor. But after Hernandez filed this filing yesterday, the prosecutor in their case, Alexis Loeb, filed for a continuance so prosecutors could continue to discuss a pre-charging resolution with these defendants.

The parties therefore request a 69-day continuance to allow defense counsel to continue their review of the discovery in this case. The requested continuance will also allow the government to continue to make progress providing additional discovery and continue discussions potential pre-charging resolution of this matter.

Hernandez also cites Jeff Finley’s treatment, who was with Rehl for part of the day (Hernandez refers to Finley having a cooperation agreement, which may confirm something that was fairly clear from his treatment).

By his own admission, on January 6, Finley marched with the Proud Boys from the start and participated and posted on the Boots on the Ground telegram chat. Id. (ECF 38) at ¶ 8. Finley watched as the barricades were torn down; after the crowd overran law enforcement, he followed the crowd onto the west terrace of the Capitol; and also invited other members of his chapter to join him at the Capitol. During these events, Finley 8 posed for a photograph with Mr. Rehl and three other Philadelphia Proud Boys “on the Upper West Terrace of the U.S. Capitol during the breach.” 9

After entering the Capitol and observing barricades torn down and the crowd overrunning law enforcement, Finley posted a video message, which among other things celebrated the events of the day and congratulated Mr. Rehl (“Yo, [Zach Rehl], proud of your (sic) fucking boy”). Finley (ECF 38) at ¶ 23. Finley deleted social media posts and photographs of himself and other Proud Boys at the Capitol and directed members of his chapter to do the same. Id. Despite almost identical 10 conduct by Finley and notwithstanding the allegations that Finley obstructed justice by deleting and directing members of his chapter to delete posts, the government did not consider Finley a risk of danger and did not seek his detention pretrial.

10 “Following the events at the Capitol on January 6, 2021, Finley took measures to obstruct the government’s investigation into criminal conduct at the Capitol. Among other things, Finley deleted his social media accounts and deleted photos and videos of himself and other Proud Boys at the Capitol. Finley also directed members of his chapter to delete their photographs and advised the presidents of other Proud Boys chapters of his actions, writing in an encrypted message, “Deleted all photos I may have had, advised my boys to as well. No talks about dc on telegram whatsoever and gathering #s as we speak.” Finley (ECF 38) at ¶ 24

According to Hernandez, the single thing that distinguishes Rehl from Finley is that Rehl was a member of the Ministry of Self Defense that Tarrio created in December 2020 as a leadership structure for what came next. She argues, in defiance of years of Proud Boy modus operandi, that the group was formed to avoid violence (rather than to better to incite it from others). And several things she cites actually hurt her argument. She cites Tarrio’s demand for a top-down structure, for example.

Now that goes with the whole thing. I don’t want this – this isn’t a foke (phonetic) thing. This isn’t a fuckin’, a thing where it’s going to be a fuckin’ super militant fuckin’ thing, but we do need to organize better and in order to do that, we need to have a top down structure, right.

She makes much of Tarrio’s demand that the Proud Boys will not, henceforth, be the ones to cross police barricades.

MR. TARRIO: Yeah, I mean every situation calls for something different, you know. Like we’re – I think on the verbalsense and the media sense, me and Biggs has got in on lock, where we know exactly what we’re going to say that will piss off the media. And you can translate that to on the grounds. Now I’m not saying, now I’m not saying to go ahead and fuckin’ talk shit. Go ahead and talk shit, as long as it, you know, keep it fuckin’ professional. But we’re never going to be the ones to cross the police barrier or cross something in order to get to somebody. We’re always going to be the ones standing back, right, and we’re always going to be the ones to fuckin’ defend. [Hernandez’ emphasis]

The Proud Boys weren’t the ones who crossed the barricade first on January 6. Instead, Joe Biggs made some comments to Ryan Samsel, and Samsel pushed over the barricades, giving Officer Caroline Edwards a lasting brain injury in the process and setting off hundreds of people behind him.

And Hernandez points to Bertino’s warnings (whom she names in a piece that also describes that Person-1 is the guy who, like Bertino, got stabbed at an earlier Proud Boy fight) about being stabbed to excuse the body armor the Proud Boys wore on a day when they targeted the Capitol at a time when few if any Antifa were present.

There’s a long redacted passage that, she explains, “refute the allegation that … MOSD planned a violent attack on the Capitol.”

Matters considered by the Court under seal also refute the allegation that the Proud Boys and the MOSD planned a violent attack on the Capitol.

This seems to be a reference to one of, if not the primary extended sealed dispute in this docket before Judge Kelly. Given Hernandez’ description of it, it may be the testimony of an FBI informant who repeatedly denied any such plans. Except that informant went to insurrection with the Kansas City cell of Proud Boys, and two of them — Louis Colon and Ryan Ashcroft — have since pled guilty to statements of offense that seem to directly counter the claims of their co-traveler.

Finally, Hernandez presents what is solid evidence that Rehl was not part of the planning discussions that did go on between Tarrio, Biggs, and Nordean, but which is not evidence that there was no plan.

That was the only plan communicated to the MOSD, to Boots-on-the-Ground and to Mr. Rehl. See also TSI at ¶¶ 63-65; Donohoe Plea (ECF 336 at ¶¶ 22-24). Note also that Mr. Rehl’s understanding of the plan was, as discussed in the 12/30 MOSD meeting, to break off into smaller teams. Mr. Rehl was not with Biggs and Nordean on the evening of January 5 and Tarrio was not in DC. Mr. Rehl did not speak with Tarrio by phone on January 5 or January 6. Compare TSI at 22 ¶¶ 63, 105. Thus, any communications between Mr. Rehl and Biggs, Nordean, or Tarrio on January 5, would have been on telegram. No message exists where they discuss a plan to attack the Capitol.

There was a meeting on January 5 involving Biggs and Nordean, after which Biggs explained that he had a plan that had been discussed with Tarrio. Rehl was not in that loop (and indeed had only just made it to DC). But there are repeated references to this plan.

I lay all this out for two reasons. First, probably because of some difficulties with the prosecution (including the number of Proud Boy informants, including Joe Biggs, that the FBI took to be credible and so got lied to), DOJ’s prosecutorial decisions don’t make transparent sense in the way they do with the Oath Keeper conspiracy, which has been a relentless march towards more senior plotters. But also because, at least according to the government’s theory of how this worked (which does appear in both Matthew Greene and Charles Donohoe’s statements of offense), this attack was implemented using a top-down structure led by a guy, Tarrio, giving oral instructions from offsite. And those oral instructions may have been influenced by the plans of others that Tarrio was known to be in contact with in December, only one of which is this “We the People” plan.

Tarrio’s motive and plan

And that’s why, I would argue, the “We the People” document is in the existing conspiracy indictments. It led Tarrio to express his own motive twice. The sedition indictment has two references to it. First, in regards to discussions Tarrio had with the woman who shared it with him in December, well before the Proud Boy plan was finalized.

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 oceupy 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.”

To her (using a phone Tarrio believed would not be exploited, and which did take a year to be exploited), he agreed that “the revolution is [sic] important than anything,” Tarrio seemingly agreed that “every waking moment” he spent was dedicated to that revolution.

Then, after an attack led by the Proud Boys (who had succeeded in recruiting others to break through the barricades) Tarrio made a reference that suggests Bertino — referred to here as Person-1 — does know about this plan.

107. At 7:39 pm, PERSON-I 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-I 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.

In response to Bertino’s boast of 1776, Tarrio responded with the code for occupying buildings, Winter Palace. That is, this seems to be his tacit reference to the plan to occupy buildings.

But this exchange goes well beyond that of the We the People plan, which imagined issuing a set of demands but didn’t know what would happen next. This occupation, as reflected by Bertino’s awareness that “They HAVE to certify today! Or it’s invalid,” reflects some knowledge of the entire legal theory espoused by people like John Eastman: that to succeed in winning their demands, occupiers needed to ensure that the certification did not happen as scheduled.

Rehl has a point (though prosecutors, being prosecutors, would note that it’s the same point that Donohoe, who only came to DC on January 6 to fill in for Tarrio after the Proud Boy leader predictably got arrested and so retreated to Baltimore for the actual violence) came to: that Tarrio set up this conspiracy to insulate himself, leaving people like Donohoe and Rehl to take the fall for his plan.

Comings and Goings on the Proud Boy Leaders Prosecution

When DOJ finally added Enrique Tarrio to the Proud Boy leader conspiracy, I noted that the way DOJ has structured the prosecution team for the Proud Boys made it really hard to understand where things were headed.

I’ve been expecting and predicting this indictment since December 28. But for the life of me, I’m not sure where DOJ expects to go from here.

This indictment describes the numbers of people massed at several stages of the operation. 65 members on the Ministry of Self Defense (MOSD) Members Group. 90 people in the New MOSD members group created on January 4. Approximately 100 Proud Boys who met at the Washington Memorial the morning of the attack. Donohoe bragging at 12:00PM on January 6 that “WE ARE WITH 200-300 PBS,” just before they kicked off the riot.

Perhaps this framework is meant to provide a way to implicate all those others, 300 people who agreed, by signing up, that they were following a plan that DOJ has now shown (and that Matthew Greene’s cooperation was designed to show) was a plan to occupy buildings from the start.

But otherwise, this still feels really dispersed, and the prosecution team (which consists of three visible members for the leadership conspiracy, including Erik Kenerson, Jason McCullough, and Luke Jones, and about four detailees from other offices for satellite cases; a fourth prosecutor who had been on the core cases, Christopher Berridge, left immediately after [Matthew] Greene pled) has a far harder caseload than the significantly larger team on the Oath Keepers.

Perhaps something will really start to crystalize as some of these continuances end in April. Or perhaps DOJ will be serially prosecuting Proud Boys for the foreseeable future.

That remains true. But on Friday, there were several minor structural changes worth noting. I’ve attempted to summarize the status of some key Proud Boy and related cases here (I’ve only listed a judge if it is someone other than Tim Kelly).

First, Trial Attorney Conor Mulroe filed a notice of appearance in the Proud Boy Leaders and the Biggs Co-Traveler cases. He hasn’t shown up on any January 6 cases before this. It’s likely he was added because on April 22, Judge Kelly set a trial date in the Proud Boy leaders for August 8. That is, it’s likely he was added to start preparing for trial. But the Biggs co-travelers, on whose case he also filed an appearance, won’t be going to trial anytime soon. That’s partly because three of the defendants have to work through the conflict created by John Pierce’s representation of three of them — Paul Rae, Kevin Tuck, and Nate Tuck (though Pierce recently ceded representation to William Shipley for the Tucks). In hearings, prosecutors have said that at least three of the defendants are considering plea deals.

Then Luke Jones, who has been part of the Leaders case from the start, dropped off the case (he recently dropped off an unremarkable misdemeanor case as well though remains on the Ryan Nichols and Alex Harkrider case). Jones had been focusing on Zach Rehl’s prosecution, and he remains on the Rehl co-traveler case, which has not yet been indicted. I don’t know what to make of his departure (perhaps a recognition that his efforts to flip Rehl won’t ever come to fruition?). Jones has, in the past, worked on national security cases, and in fact was listed as prosecuting Russian hacker Evgeny Viktorovich Gladkikh in the press release (though not the docket). That case will never go to trial (because the US is not about to get custody of Gladkikh anytime soon). But it suggests that Jones may have spent time last June helping co-counsel present that case to a DC grand jury.

I’m most interested in the addition of Nadia Moore to the Leaders case. She’s a Brooklyn-based prosecutor, among five or so prosecutors from around the country who’ve been working the Proud Boy cases (in this table, William Dreher is from Seattle, Alexis Loeb is from San Francisco, Michael Gordon is from Tampa, and Christopher Veatch is from Chicago). And as the table makes clear she has been working the Florida-based Proud Boy and related cases, as well as the case of Steven Miles and Matthew LeBrun, who spent January 6 with Florida Proud Boys AJ Fischer and friends, and the former of whom is accused of helping to bust open the other side window in the original breach of the Capitol. This may suggest the government believes they’ll obtain the testimony of multiple Floridians against Biggs and Tarrio.

Meanwhile, a slew of these cases have just one (listed) prosecutor, including the Kansas City case with its five remaining defendants.

We’ll still see some significant movements in the Proud Boys cases. But for now, the focus — as so much of the January 6 investigation is — may be on Florida.

Update, 6/1: Today Jones dropped off the Nichols and Rehl co-traveller cases.

DOJ’s Reply Motion for Carl Nichols’ Reconsideration on 1512: Other Judge Other Judges Other Judges

I’ve written two posts on former Clarence Thomas clerk Carl Nichols’ outlier ruling rejecting DOJ’s use of 18 USC 1512(c)(2) to January 6. (one, two)

Yesterday, they submitted their reply motion. It reads like this:

Reconsideration of the substantive ruling in Miller is appropriate because that ruling is inconsistent with decisions from every other judge on this Court to have considered the issue. That inconsistency means proving a violation of Section 1512(c)(2) requires additional facts in this case (and other Section 1512(c)(2) cases in front of this Court) but not in any case before any of the other judges of this Court. Moreover, with one exception, the Court’s ruling in Miller did not address the opinions from other judges of this Court, some of whom have explicitly disagreed with this Court after Miller issued.

[snip]

As noted in the government’s reconsideration motion, every other judge of this Court to consider this issue has concluded that Section 1512(c)(2) “prohibits obstruction by means other than document destruction.” United States v. Sandlin, No. 21-cr-88, 2021 WL 5865006, at *5 (D.D.C. Dec. 10, 2021) (Friedrich, J.); see ECF 75 at 5-6 (citing cases). At the time the reconsideration motion was filed, one judge had disagreed with Miller in a footnote, United States v. Puma, 21-cr-454, 2022 WL 823079, at *12 n.4 (D.D.C. Mar. 19, 2022) (Friedman, J.), and another judge indicated her disagreement with Miller orally when delivering a “brief ruling” denying a defendant’s post-trial motion for judgment of acquittal, see United States v. Reffitt, 21-cr-32, Trial Tr. 1498, 1502-05 (Mar. 8, 2022) (Friedrich, J.) (attached as Exhibit A to the reconsideration motion). Since the reconsideration motion was filed, judges have continued to reject Miller’s reasoning. See, e.g., United States v. Hughes, No. 21-cr-106, Minute Order denying motion to dismiss count charging Section 1512 (D.D.C. May 9, 2022) (Kelly, J.) (rejecting the “narrow reading” of Section 1512(c)(2) and agreeing with an opinion that “directly responded to and rejected the logic employed in Miller”); United States v. Hale-Cusanelli, No. 21-cr-37, Transcript of motion to dismiss hearing at 4-8 (D.D.C. May 6, 2022) (McFadden, J.)(attached as Exhibit D);United States v. Reffitt, No. 21-cr-32, 2022 WL 1404247, at *7-*10 (D.D.C. May 4, 2022) (Friedrich, J.); United States v. McHugh, No. 21-cr-453, 2022 WL 1302880, at *2-*13 (D.D.C. May 2, 2022) (Bates, J). Although none of those rulings represents “controlling law,” McAllister v. District of Columbia, 53 F. Supp. 3d 55, 59 (D.D.C. 2014) (internal quotation marks omitted), it is surely “significant” that this Court stands as the sole outlier among all the judges on this Court to have ruled on the issue both before and after Miller issued.

Two related factors militate in favor of reconsideration of the Court’s substantive conclusion about the scope of Section 1512(c)(2). First, the Court in Miller addressed only one of the contrary opinions from judges on this Court. See Mem. Op. 16, 18 n.8, 22, 26 (citing United States v. Montgomery, No. 21-cr-46, 2021 WL 6134591(D.D.C. Dec. 28, 2021)). Reconsideration would permit the Court the opportunity to consider in full the “persuasive authority” issued by other judges of this Court. See United States v. Drummond, 98 F. Supp. 2d 44, 50 n.5 (D.D.C. 2000) (noting that within-Circuit district court cases are not binding but “[o]f course” are “persuasive authority”). Second, reconsideration resulting in an interpretation consistent with other judges of this Court would ensure that all defendants charged under Section 1512(c)(2) are treated alike until the court of appeals has an opportunity on post-conviction review to consider the merits of their challenges to the statute’s scope.

[snip]

Second, Miller argues (Opp. 10-18) that the government “misunderstands” (id. at 10) this Court’s textual analysis of Section 1512(c)(2). But the issue is not one of misapprehension; rather, the government (and every other judge on this Court to have considered the issue) understands but disagrees with the Court’s (and Miller’s) interpretation of Section 1512(c)(2)’s reach. [my emphasis]

It uses Garret Miller’s response to implicitly attack Carl Nichols and emphasize the degree to which even Nichols’ Trump appointed colleagues — first Dabney Friedrich, then Tim Kelly, and finally, the judge most likely to agree with Nichols, Trevor McFadden — have disagreed with Nichols’ thinking.

Guy Reffitt’s prosecution is now ripe for appeal, if he still plans on doing that. Or Nichols will choose to adhere to his outlier opinion.

Here’s the current tally on obstruction opinions, with McFadden added.

  1. Dabney Friedrich, December 10, 2021, Sandlin*
  2. Amit Mehta, December 20, 2021, Caldwell*
  3. James Boasberg, December 21, 2021, Mostofsky
  4. Tim Kelly, December 28, 2021, Nordean; May 9, 2022, Hughes (by minute order), rejecting Miller
  5. Randolph Moss, December 28, 2021, Montgomery
  6. Beryl Howell, January 21, 2022, DeCarlo
  7. John Bates, February 1, 2022, McHugh; May 2, 2022 [on reconsideration]
  8. Colleen Kollar-Kotelly, February 9, 2022, Grider
  9. Richard Leon (by minute order), February 24, 2022, Costianes; May 26, 2022, Fitzsimons (post-Miller)
  10. Christopher Cooper, February 25, 2022, Robertson
  11. Rudolph Contreras, announced March 8, released March 14, Andries
  12. Paul Friedman, March 19, Puma
  13. Thomas Hogan, March 30, Sargent (opinion forthcoming)
  14. Trevor McFadden, May 6, Hale-Cusanelli
  15. Royce Lamberth, May 25, Bingert

Amid Plea Discussions, Owen Shroyer Submits a Half-Hearted First Amendment Challenge

I came in just a few minutes late to the Owen Shroyer status hearing, and missed the better part of it, it went that quickly! That said, according to Shroyer lawyer Norm Pattis, things are quite chummy with prosecutors and they expect they might come to some kind of plea deal.

That makes the flimsiness of a motion to dismiss he submitted the other day far more interesting. He’s supposed to be arguing that because he’s a “journalist” who was covering the riot he was cheering, he shouldn’t be prosecuted. Most of his 1A argument, however, would apply to the hundreds of other people charged with trespassing that day, and doesn’t address the non-prosecution agreement that specifically prohibited Shroyer from being a loud asshole at the Capitol, uniquely among the thousands of rioters. Shroyer repeats false claims about trying to rein in the mob that Tim Kelly already rejected. He makes one half-hearted bid to press freedom:

News reporters and broadcasters often put themselves into harm’s way to cover political demonstrations. Robust public discourse requires free and unrestrained media. In New York Times v. Sullivan, 403 U.S. 713, 717 (1971), Justice Black opined

In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government.

(Black, J. concurring.)

Yet he provides virtually no evidence that he was reporting.

That’s what makes Shroyer’s declaration, which he could be held to (though it is labeled as a draft), all the more interesting. In addition to claiming that he intended, “in substantial part, to report on my observations to our millions of listeners and viewers worldwide,” and repeating the already rejected claims that he attempted to calm the crowd, he included these details about his expectations of the Former President.

While in Washington D.C. on January 6, I accompanied Mr. Jones to the podium at which President Trump was speaking. It was my understanding that we were to follow Mr. Trump from there to the Capitol.

Mr. Jones and I were accompanied by a security detail comprised of fellow Infowars employees and off-duty police officers. We traveled together as a group, with Mr. Jones and I walking within a perimeter established by our security team.

When Mr. Trump did not appear to lead our group, I followed Mr. Jones and the security detail from the podium traveling in the direction of the Capitol building.

At no point as we walked this route did I see impediments or barriers of any kin [sic] suggestion [sic] that we were not free to enter the grounds.

None of this addresses the general details of his trespass or his specific prohibition on being a loud asshole at the Capitol. Indeed, his claim that he didn’t see any barriers as he “walked this route” “in the direction of the Capitol building” (even assuming it is a factual claim, and the Sedition Hunters say it is not), is largely true only because the march itself was unpermitted.

He’s describing thinking that President Trump was going to lead an unpermitted march to the Capitol, and then leading it himself (following along behind Alex Jones like thousands of others), right down Pennsylvania Avenue which had no barriers because there was no march planned.

This doesn’t help him, even ignoring the presence of Ali Alexander, who is not an Infowars employee.

Whatever else this declaration is (and it’s not the kind of declaration that would win a 1A motion to dismiss), it doesn’t protect Donald Trump.

Meanwhile, the status hearing of the other Infowars employee who was supposed to have a status hearing today, videographer Sam Montoya, was continued so he, too, can continue to discuss a plea deal.

Sedition Is the Foundation on Which the Trump Associate Investigation Builds

As I laid out in this post, I’m impatient with those who claim the government has taken a new direction in the January 6 investigation with subpoenas to people like — most audibly — Ali Alexander. Alexander got a number of journalists who know better to repeat his claim that he was “cooperating” with the investigation rather than merely “complying” with a subpoena. Few of those journalists pointed out real holes in his cover story — including his silence about Roger Stone and Alex Jones, his disavowal of communications with militias before he arrived at the Capitol, his use of cover organizations to get his permits, and his seeming message to co-conspirators that if he once had evidence, it is no longer in his possession.

In his statement, Alexander sought to separate himself from the substance of the investigation, saying he did not coordinate with the Proud Boys and suggesting his contact with the Oath Keepers was limited to accepting an offer for them to act as ushers at an event that never took place: his own permitted event near the Capitol, which didn’t occur because of the mob attack on the Capitol. The Oath Keepers are the subject of conspiracy charges for their roles in breaching the Capitol that day.

“I did not finance the Ellipse equipment. I did not ever talk with the White House about security groups. Any militia working security at the Ellipse belonged to “Women for America First,” not us,” Alexander said. “I did not coordinate any movements with the Proud Boys or even see them that day. I did take Oath Keepers offer to act as ushers for the Area 8 event but all of that was lost in the chaos. I wasn’t in communication with any of the aforementioned groups while I was near the Capitol working to get people away from the building. Lastly, I’m not willing to presume anyone’s guilt.”

“I did nothing wrong and I am not in possession of evidence that anyone else had plans to commit unlawful acts,” Alexander said. “I denounce anyone who planned to subvert my permitted event and the other permitted events of that day on Capitol grounds to stage any counterproductive activities.”

This is classic Roger Stone-schooled disinformation and should be treated as such.

Reporters have, undoubtedly based on really good sourcing, emphasized the existence of a new grand jury focusing on Trump’s associates, and from that, argued it’s a new direction — though as I’ve documented, DOJ has availed themselves of at least six grand juries thus far in this investigation.

But how could an investigation of Alexander’s actions be new if DOJ successfully debunked much of his current cover story — that he was “working to get people away from the building” — last November? Alexander co-traveler Owen Shroyer attempted to offer the same false claim in an attempt to throw out charges — filed in August — against him, but Judge Tim Kelly rejected that attempt on January 20. How could this be a totally new direction if prosecutors would have obtained Alexander’s Stop the Steal listserv as a result of Brandon Straka’s “cooperation” in early 2021? How could it be a new direction if DOJ has gotten guilty pleas from those who went first to the Capitol, then to the East front, and finally breached the building in response to lies about Alexander’s rally permits told by Alex Jones? DOJ has, demonstrably, been laying the groundwork for a subpoena to Alexander for over year.

And it’s not just Alexander. Steps DOJ took over the past year were undoubtedly necessary preconditions to going after Trump’s close associates. Those include:

These are efforts that started in January 2021. Some of the most important — the way DOJ seized Rudy’s comms and got a privilege review without revealing a January 6 warrant — started on Lisa Monaco’s first day in office.

But there’s a more important thing that DOJ probably believed they needed before going after Trump and his close associates: compelling proof that Trump wielded the mob in his effort to obstruct the vote count, obtaining the proof in the yellow boxes, below. That was one of the things I was trying to lay out in this post.

While there are specific things Trump and his associates did that were illegal — the call to Brad Raffensperger, the fake elector certificates, the illegal demand of Mike Pence — many of the rest are only illegal (at least under the framework DOJ is using) if they are tied to Trump’s successful effort to target the mob at American democracy. You first have to prove that Trump fired the murder weapon, and once you’ve established that proof, you can investigate who helped Trump buy the weapon, who helped him aim it, who loaded the gun for him, who was standing behind him with four more weapons to fire if his own shot failed to work.

And this is why I’m interested in the apparent two month process it appears to have taken DOJ to shift its main focus from the work of the January 8, 2021 grand jury, whose work culminated in the January 12, 2022 seditious conspiracy indictment against Stewart Rhodes, and the February 14, 2022 grand jury, the foundational overt act of which was the March 7 conspiracy charge against Enrique Tarrio.

The first grand jury proved that the vast majority of the rioters, whether trespassers or assault defendants, got there via one of three methods:

  • Responding to Trump and Alex Jones’ lies about Trump accompanying the marchers and giving a second speech
  • Acting directly on Trump’s “orders,” especially his December 19 tweet, often bypassing the Ellipse rally altogether
  • Coordinating with one of the militias, especially the Proud Boys

Judge Amit Mehta also seems to believe that the grand jury developed proof that many of those who assaulted cops were aided and abetted by Donald Trump. The first grand jury also proved that of those who — having been led to believe false claims about vote fraud based on over three months of propaganda — had the intent of obstructing the vote count, a great number had the specific goal of pressuring or punishing Mike Pence. While the intent of pressuring Pence came, for some rioters, from militia hierarchies, for most others, it came directly from Trump.

This is my hypothesis about the seeming shift from using the January 8 grand jury as the primary investigative grand jury to launching a new one on February 14. The January 8 grand jury has largely completed its investigation into what caused the riot, how it was orchestrated, who participated; the remaining prosecutions that don’t require and affect the larger picture will be and have been charged via the November 10 grand jury. But by indicting Tarrio and showing, with Charles Donohoe’s cooperation, that everything the Proud Boys did emanated from Tarrio’s orders and, by association, from whatever understanding Tarrio had about the purpose of the riot from his communications with people close to Trump, DOJ and the Valentine’s Day grand jury will move onto the next level of the conspiracy to obstruct the vote count. Again, that’s just a hypothesis — we’ll see whether that’s an accurate read in the weeks ahead. But it’s not a new direction at all. It is the direction that the investigation has demonstrably been headed for over a year.

Update: In a statement pretending the stories about his cooperation were leaked by DOJ, Alexander insists he is not cooperating, but complying.

After consultation with counsel, we provided a statement that established that I was not a target of this grand jury; I haven’t been accused of any criminal wrongdoing; and that I was complying, as required by law, with their probe.

[snip]

Useful idiots on the right, clinging to a New York Times headline that sensationalizes my compliance with a subpoena, will empower the Deep State which planted these stories to give their political investigation more legs to hurt our election integrity movement and Trump’s 2024 prospects. [my emphasis]

The rest of the statement should convince anyone that this is a replay of the same bullshit we saw from Stone and Jerome Corsi in the Mueller investigation.