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Don’t Ignore What Trevor McFadden Has to Say about January 6

Tierney Sneed had a good article yesterday summarizing how starkly some of the judges presiding over January 6 cases have described it. For example, Sneed quoted liberally from the comments Randolph Moss made in sentencing Paul Hodgkins, comments that the government and other judges are quoting frequently.

“It means that it will be harder today than it was seven months ago for the United States and our diplomats to convince other nations to pursue democracy,” Judge Randolph Moss said at a July 19 sentencing hearing. “It means that it will be harder for all of us to convince our children and our grandchildren that democracy stands as the immutable foundation of this nation. It means that we are now all fearful about the next attack in a way that we never were.”

[snip]

Moss, a nominee of President Barack Obama, said that the attack “threatened not only the security of the Capitol, but democracy itself,” as he sentenced Paul Hodgkins, a rioter who pleaded guilty to obstructing an official proceeding.

“Our elected representatives from both political parties came together that day to perform their constitutional and statutory duty to declare, in the word of the statute, the person elected president,” Moss said at the July 19 hearing. “The mob’s objective was to stop that from happening. They were prepared to break the law to prevent Congress from performing its constitutional and statutory duty. That is chilling for many reasons.”

She includes judges appointed by Democrats (in addition to Moss, Amy Berman Jackson and Beryl Howell) and Republicans (Reggie Walton and Royce Lamberth).

As someone who thinks January 6 was exceptionally dangerous, it’s comforting to hear some judges agree. But I think that, to make a case about how judges are interpreting January 6, you would need to include the statements of a judge like Trevor McFadden, as well.

Of the District Judges carrying the heavy January 6 case load, four — Carl Nichols, Dabney Friedrich, Tim Kelly, and McFadden — are Trump appointees. Unlike some of Trump’s DC Circuit appointees, they’re all serious judges, with time as prosecutors or in other DOJ roles. Trump appointees aren’t necessarily going to be more favorable for January 6 defendants. While Nichols may have burnished his right wing bonafides clerking for Clarence Thomas, for example, that means he spent a lot of time with a Justice who is generally awful for non-corporate defendants’ rights. Former public defender and Obama appointee Tanya Chutkan has already made decisions (on bail) that are more favorable to defendants than the Trump appointees, for example, and I expect that to continue (the judge presiding over the Oath Keeper conspiracy case, Amit Mehta, has also served as a public defender).

Still, as recent Republican appointees, the Trump judges are an important read and voice on this investigation. Both by disposition and record on the court, Friedrich is probably the Trumpiest judge, but thus far the most interesting case she has been assigned is that of Guy Reffitt, the III Percenter who threatened his kids if they revealed his role in the riot; in that case, she approved an order allowing prosecutors to use his face to open a laptop with pictures from the insurrection. Nichols has a bunch of cases, such as the Pollocks or former Green Beret Jeffrey McKellop, that may get interesting down the road, but thus far his most active cases have involved presiding over the plea deals of a group of people arrested on trespass charges on the day of the attack. Tim Kelly is presiding over the bulk of the Proud Boy cases, which by itself gives him a pretty full docket (but is also why DOJ really fucked up by treating Ethan Nordean’s invocation of the Kavanaugh protests so blithely); his decisions thus far have been totally fair. The decisions of Trevor McFadden, who is presiding over the omnibus Tunnel assault case, have also been fair.

I think McFadden’s statements should be included in any read of what these judges think of January 6 because he has pulled a number of the ones that, because the defendants’ political speech has been implicated in the cases against them, will provide an early read about how a Republican with solid political ties will view the balancing of political speech and threat posed by January 6.

In addition to the Hunter and Kevin Seefried prosecution (the latter of whom was pictured carrying a Confederate flag through the Capitol), McFadden is presiding over the prosecutions of American Firster Christian Secor, Cowboys for Trump founder Couy Griffin, and Neo-Nazi Timothy Hale-Cusanelli.

In these cases, McFadden has expressed a fair amount of nuance in his views as he has presided over some genuinely difficult decisions.

He did take the way Hale-Cusanelli expressed his bigotry into account when he decided to hold him without bail (which was genuinely one of the most difficult detention decisions, in my opinion, and I was leaning towards release before McFadden made the decision), but in significant part because he may have acted on those views in the past and because his promises of action were alarming and intimidating his colleagues.

Having said all of that, we don’t typically penalize people for what they say or think. I think for purposes of my analysis, I need to — I’m trying to figure out whether this well-documented history of violent and racist language does suggest that the defendant poses a danger to the community.

[snip]

I also note the government’s evidence that the defendant appears to have surrounded himself, to a certain extent anyway, with people who have encouraged this behavior and people who may even agree with him. And I agree with the government’s concern regarding potential escalation of violence at this point given all that has occurred. And I am concerned for the safety of the confidential human source. I think given all of the facts here in the government’s motion, I mention it is pretty obvious to the defendant anyway who this person is. And I am concerned given all of the defendant[‘]s — all of the things he said in the past about committing violence against those who he feels are pitted against him. And given the sum evidence that the defendant has been willing to put these thoughts into action in the past, I think I do have a duty to protect that confidential source.

McFadden did, however, release someone with similarly repugnant views, Secor, even though Secor had been arming himself, in part because Secor had third party custodians — his parents — willing to vouch for him and put up a $200,000 bond. McFadden seems to be seeking to separate out hateful speech from where that speech turns violent and, if nothing else, that struggle deserves close attention.

But he’s also not viewing DOJ’s response to January 6 as driven predominantly by First Amendment issues. In a decision rejecting Griffin’s attempt to throw out one of the trespassing charges DOJ has used — which Griffin, because he did not enter the Capitol, was uniquely situated to challenge — McFadden dismissed Griffin’s claims of political discrimination.

The Government moved to detain Griffin before trial. It described Griffin’s political views as “inflammatory, racist, and at least borderline threatening advocacy.” Gov’t’s Mem. in Supp. of Pretrial Detention at 2, ECF No. 3. The Government also highlighted the gun rights advocacy of Cowboys for Trump, as well as allegedly violent statements made by Griffin.

[snip]

Finally, Griffin complains of discriminatory prosecution. He contends that he was targeted and “selectively charged . . . because the government loathed him and his politics.” Def.’s Reply at 3. “Few subjects are less adapted to judicial review than the exercise by the Executive of his discretion in deciding when and whether to institute criminal proceedings, or what precise charge shall be made, or whether to dismiss a proceeding once brought.” United States v. Fokker Servs. B.V., 818 F.3d 733, 741 (D.C. Cir. 2016) (cleaned up). So “the presumption of regularity” applies to “prosecutorial decisions and, in the absence of clear evidence to the contrary, courts presume that prosecutors have properly discharged their official duties.” Id.

Griffin comes up short on providing the “clear evidence” required for this Court to surmount the presumption of regularity—and the separation of powers. He points to “hundreds or perhaps thousands of other individuals ‘remaining’ in the same area” as him on January 6 who have not faced charges under 18 U.S.C. § 1752. Def.’s Mot. at 24. The Court hesitates to credit these unsupported numbers, especially as the Government continues to charge new individuals with offenses related to January 6. Nor is the Court concerned by the Government’s statements about Griffin when seeking to detain him pretrial; detention hearings require the Court to consider the defendant’s history and personal characteristics, as well as his potential dangerousness.

Griffin highlights the Government’s dismissal of charges under 18 U.S.C. § 1752 in “the interests of justice” in United States v. Christopher Kelly, 21-mj-128 (D.D.C. 2021). According to news reports, the Government moved to drop the charges after determining Kelly did not enter the Capitol building. See Feds move to drop charges for Capitol riot defendant, Politico, June 1, 2021, https://www.politico.com/news/2021/06/01/feds-capitol-riot-defendant-491514 (“‘Since he was not inside, in the interest of consistency in the investigation, the charges were dropped,’ the official said.”). Even so, the Government could rationally forgo federal prosecution as to most trespassers while deciding that Griffin’s leadership role in the crowd, position as an elected official, and more blatant conduct at the scene merited him different treatment. Not all differences amount to discrimination. In any event, presumably Kelly and the other uncharged protestors surrounding Griffin on the Capitol steps share his “politics,” Def.’s Reply at 3, complicating his complaint of bias here.

Griffin also points to the numerous uncharged protestors who broke through USCP barricades to occupy the Capitol steps on the eve of Justice Kavanaugh’s Senate confirmation vote. See Def.’s Notice at 2, ECF No. 39; see also Kavanaugh Protesters Ignore Capitol Barricades Ahead of Saturday Vote, Roll Call, Oct. 6, 2019, https://www.rollcall.com/2018/10/06/kavanaugh-protesters-ignore-capitol-barricades-ahead-ofsaturday-vote/. Disparate charging decisions in similar circumstances may be relevant at sentencing. Cf. 18 U.S.C. 3553(a)(c) (“the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct”). But this is not a basis to dismiss the charges. [My emphasis]

McFadden based his decision on this point in part on separation of powers (the basis for some of his decisions that have been deemed pro-Trump) and presumption of regularity, as well as basic facts. He deemed reasonable the possibility that prosecutors viewed Griffin’s leadership role to be more important to prosecute. He suggested he might sentence Griffin (if he were found guilty) leniently based on a comparison with similarly situated protestors against Kavanugh. But he also based his decision on the notion that Griffin’s threats of violence (raised in a detention challenge conducted before Michael Sherwin departed) could pose a genuine concern to the government.

McFadden is not treating this investigation as a witch hunt against people with right wing views.

But at the same time, McFadden has deviated from his colleagues’ more alarmist language to refer to January 6. At least twice in hearings (including on this Griffin challenge), McFadden admonished an AUSA who referred to January 6 as an insurrection. Have you charged anyone with insurrection, McFadden rightly asked. In a court room, these are not empty terms. They are also names of crimes. And DOJ needs to be careful not to accuse these defendants of crimes that — for whatever reason — they haven’t charged.

It’s not that McFadden thinks January 6 was not serious. In the same Hale-Cusanelli hearing, he described, “Obviously, the January 6th riot was a serious and sui generis threat to our country’s body politic.” But thus far (he has not presided over any of the six cases that have been sentenced yet), he has adopted a more moderate tone in discussing the event.

It’s true that, for the moment, some District Court Judges will frame how we think of January 6. In Munchel, the DC Circuit, too, described January 6 in grave terms (albeit in a passage of Robert Wilkins’ majority opinion not joined by Greg Katsas).

It cannot be gainsaid that the violent breach of the Capitol on January 6 was a grave danger to our democracy, and that those who participated could rightly be subject to detention to safeguard the community. Cf. Salerno, 481 U.S. at 748 (“[I]n times of war or insurrection, when society’s interest is at its peak, the Government may detain individuals whom the government believes to be dangerous.” (citations omitted)).

But ultimately, the six Republican appointees on the Supreme Court will have their say about what this event was — at least about whether hundreds of people committed felony obstruction in trying to halt the peaceful transfer of power. And with that in mind, commentators and DOJ would do well to watch carefully for the specific aspects of January 6 that Trevor McFadden finds most troublesome.

Government Moves to Dismiss Its First January 6 Case: Christopher Kelly

In a first among the January 6 cases, the government has moved to dismiss the trespassing and obstruction charges against Christopher Kelly, a New Yorker whose arrest documents quoted Facebook postings saying that he was going to the riot with a former NYPD cop believed to be his brother and some Proud Boys.

The Kelly Facebook Account also shows that on January 4, 2021 another Facebook user (User 2) asked KELLY, “How are things there?? Gonna be crazy on the 6th eh?” KELLY responded, “Yea Im leaving tomorrow in the afternoon to gey there early.” He added, “Yea driving its only 250miles.” User 2 stated, “Enjoy the occasion, hope it all goes to plan. Stay safe, Antifa will be out in force.” KELLY responded with, “No worries, I’ll be with ex NYPD and some proud boys. This will be the most historic event of my life (emphasis added).”

And unless there was a horrible mistake, his Facebook posts also show that he entered the Capitol and was enthusiastic about the results.

At 2:22 pm EST Chris Kelly posted the photograph in Figure One. A chat participant asked, “You’re there, @Chris Kelly? What’s really going on?” At 2:25pm EST, KELLY responded, “MAGA is here full on. Capitol building is breached.” At 2:30pm EST KELLY added, “Tear gas, police, stopped the hearing, they are all headed to the basement,” and, “Fuck these snakes. Out of OUR HOUSE!” (emphasis added).”

One possibility is that he didn’t enter the Capitol, his brother did, and that because Kelly sent the picture the government believed he had been inside.

I had pointed to his case back in April as one where the defendant, by proximity to the Proud Boys but not one of them, might have enough to offer to get a cooperation agreement.

As of less than a month ago, his excellent attorney, Edward McMahon, was still discussing a plea, not outright dismissal.

Since that time, counsel have engaged in substantial plea discussions that would, if successful, render moot the current hearings. Both parties agree that a continuance of the preliminary hearing and status conference date is warranted to allow for the continuation of plea discussions with an eye towards a resolution of this case.

But instead, his case will be dismissed and his record will remain clear.

There are a couple of things — aside from any cooperation he already provided — that might explain the dismissal.

First, as noted, the former NYPD he was traveling with was his brother, and no one resembling his brother has shown up in arrest records. If his brother had ties to the Proud Boys, then it might be more important to pursue him than Kelly. So maybe that’s what’s happening in lieu or prosecuting Kelly.

A far more interesting possibility would involve the established informant who first provided the tip turning Kelly in.

On or about January 9, 2021, CS-1 identified a Facebook account as being utilized by “Chris Kelly.” CS-1 provided to the FBI screenshots containing content posted to and sent and received by this account. The materials provided by CS-1 included a screenshot of the account’s profile picture.

1 Since in or about 2019, CS-1 has provided information to FBI in exchange for monetary compensation. CS-1 has no criminal record and the information provided by CS-1 has been proven to be reliable in the past.

There were maybe five established informants involved in the original tips out of all the January 6 defendants (and the case of one of the others, Timothy Hale-Cusanelli, also has problems). But informants in the vicinity of the Proud Boys pose particular problems, because there are reports that a whole slew of them were feeding tips to the FBI before January 6. And if one of them had his own involvement in January 6, but decided to narc out Kelly for cash or to divert attention from himself, that would make a case against Kelly unsustainable.

Another possibility, again, is that he didn’t enter the building. The pictures he posted of himself show him well outside the boundary of the restricted zone.

Whatever it was, the government wants to dismiss the case without prejudice.

The defendant was arrested on a Complaint in this matter on January 20, 2021, and he had his initial appearance before this Court on February 9, 2021. The matter has been continued several times and the next date is June 2, 2021 for preliminary hearing and status conference. The government and defense counsel have discussed the merits of the case, and upon reflection of the facts currently known to the government, the government believes that dismissal without prejudice at this time serves the interests of justice. The defendant consents to this motion to dismiss the Complaint without prejudice.

By dismissing the case “without prejudice,” the government could bring it back if circumstances change. But for now, Kelly becomes the first charged January 6 defendant to walk.

Update: Josh Gerstein gets confirmation that DOJ dismissed this because they have no evidence that Kelly entered the Capitol.

However, subsequent inquiries indicated that Kelly never actually entered the Capitol, according to a law enforcement official.

Prosecutors maintain that breaching the police lines outside the building is illegal, but few if any people have been charged in federal court solely for that.

“Since he was not inside, in the interest of consistency in the investigation, the charges were dropped,” the official said.

 

In [Legal] Defense of the Nazi

The biggest known investigative fuck-up in the January 6 investigation thus far was when the FBI raided the home of Marilyn and Paul Hueper believing that Marilyn was a woman that the FBI suspects, based off surveillance video, may have been part of stealing Nancy Pelosi’s laptop. The Hueper’s claims about their actions on January 6 don’t seem to be entirely forthright, but Marilyn has made a solid case that the FBI mistook her for the woman in question.

I think the FBI did have probable cause for that search, but I also think the FBI did not use available tools — most notably the Google and GeoFence warrants they’ve used in many other cases — that should have been able to exclude Marilyn as the suspect.

I think it likely that DOJ has made an error, of another sort, with Nazi sympathizer Timothy Hale-Cusanelli, detaining him for four months based off a mistaken belief he played a more important role in January 6 violence than he did.

Hale-Cusanelli was arrested on January 15, three days after a co-worker of his, who was already an NCIS informant, alerted the FBI that Hale-Cusanelli took part in the riots and had, in the past, espoused fairly extreme white supremacist views. On January 14, the informant recorded Hale-Cusanelli describing giving hand signals to the mob and taking a flag that Hale-Cusanelli described as a “murder weapon” to destroy.

Hale-Cusanelli’s arrest warrant, which charged him with the misdemeanor trespassing charges everyone gets charged with along with a civil disorder charge, included no video from the day of the attack. When the government indicted him, they added obstruction charges and abetting.

When the FBI arrested Hale-Cusanelli, he admitted in an interview that he gave hand and voice signals — which could be no more than waving people forward — to encourage others to “advance” past cops. But the government’s primary basis to keep him jailed, when they first succeeded in doing so back in January, seems to have been that, once you cut him off from the military network he worked in as a Navy contractor, he was bound to turn to war.

Releasing Defendant from custody will only reinforce his belief that his cause is just. Given his impending debarment from Naval Weapons Station Earle, and his potential Administrative Separation from the U.S. Army Reserve, Defendant’s release will likely leave him with nowhere to go and nothing to do except pursue his fantasy of participating in a civil war. If nothing else, the events of January 6, 2021, have exposed the size and determination of right-wing fringe groups in the United States, and their willingness to place themselves and others in danger to further their political ideology. Releasing Defendant to rejoin their fold and plan their next attack poses a potentially catastrophic risk of danger to the community.

When they made a more substantive (and successful) argument he should remain detained, they focused on two things: his choice of a third party guardian was also an extremist who had helped him try to game reporting from the Navy on his extremism, and his extremism itself, including that he groomed to look like Hitler.

They also argued that Hale-Cusanelli poses a threat to the informant who IDed him.

Hale-Cusanelli is appealing his detention. But both he and his attorney, Jonathan Zucker, are getting fed up. Last week, Zucker submitted a motion asking to be replaced, but also claiming that he has received nothing in discovery about what Hale-Cusanelli did at the Capitol.

The parties were last before the court on May 12, 2021. At that time the defense expressed concern to the court regarding the paucity of discovery in this case. To date the prosecution has disclosed the defendant’s custodial interview, a surreptitiously recorded conversation between the defendant and a cooperating witness who was wearing a recording device provided by law enforcement, two portions of text messages between the defendant and two other civilians. The prosecution has provided nothing else, particularly no evidence regarding what defendant did on January 6 either outside or inside the Capitol. Nor any other evidence regarding the defendant’s activity in relation to the charged offenses. 1

1 Defendant advises that other defendants have disclosed to him that other defendants indicated they received discovery of recordings from inside the Capitol where defendant has been seen peacefully walking in the hallways.

Yesterday, the government responded. AUSA Kathryn Fifield claimed that most of what Zucker had said was not accurate.

The bulk of Defendant’s representations to the Court regarding discovery—both in terms of what they have received and government’s response to their requests—are not accurate. To date, the government has provided the most substantial portions of the government’s evidence. That includes the CHS recordings in which Defendant makes substantial admissions regarding his criminal conduct on January 6, Defendant’s custodial interview in which Defendant makes substantial admissions regarding his criminal conduct on January 6, and a partial extraction of Defendant’s cellular phone. The partial extraction includes the extraction report and the native files, including chats, videos, and photos. Defense counsel has confirmed with the undersigned that they have access to these materials on USAfx. Further, the government separately provided Capitol CCTV video capturing Defendant inside the Capitol building on January 6 and reports of interviews conducted by NCIS. Defense counsel confirmed receipt of these materials with prior government counsel. Thus, Defendant is already in possession of the evidence most relevant to detention proceedings and to Defendant’s conduct on January 6, and has been in receipt of these materials since before the last status hearing on May 12, 2021.

She described how, because of the technical issues that occur every time the government shares large volume electronic files with defense attorneys, Zucker still doesn’t have the full content of Hale-Cusanelli’s phone.

But the accompanying discovery summary in fact seems to confirm what Zucker has said: he has received no or next to no surveillance video of his client in the Capitol, and what he has gotten appears to pertain primarily to a different person he represents (Zucker also represents Jerod Wade Hughes and Thomas Webster, and did represent Dominic Pezzola for a period).

Video recording of custodial interview of Defendant Hale-Cusanelli produced via USAfx on February 22, 2021.

Bulk report of interviews conducted by NCIS produced via email on March 7, 2021.

Report of interview conducted by NCIS of Sergeant John Getz produced via email on March 8, 2021.

Partial extraction of Apple iPhone – includes Cellebrite Extraction Report (PDF 1209 pages) and native files most relevant to Defendant’s detention proceedings and conduct on January 6, 2021. Produced via USAfx on March 11, 2021.

Capitol Surveillance CCTV produced via USAfx in connection with another defendant represented by defense counsel on March 31, 2021. Upon information and belief, you confirmed receipt of this video with prior government counsel. Reproduced in the USAfx folder for this case on May 25, 2021. The Government has designated these files Highly Sensitive under the Protective Order issued in this case.

CHS video and audio recordings produced via USAfx on May 7, 2021. The Government has designated these files Sensitive under the Protective Order issued in this case. Cellebrite Extraction Report (PDF 63073 pgs): iPhone 6s (A1633), MSISDN 7328105132, ISMI 310120163205040. Produced via USAfx on May 7, 2021.

Full extraction of Defendant’s Apple iPhone produced on encrypted zip drive on or about April 28, 2021, on Blu Ray discs on or about April 28, 2021, and on defense counsel’s hard drive on or about May 25, 2021.

One of the main images in an earlier detention memo from inside the Capitol is indexed to Pezzola, so that may be the discovery in question.

This guy has absolutely loathsome views. But they are views protected by the First Amendment — and also views shared by a goodly percentage of the other January 6 defendants, many of them out on personal recognizance. The others who, like Hale-Cusanelli, were of particular concern to the government because they held clearance on January 6 also engaged in physical assault — and Freddie Klein was released even after that. As I noted, the government spent two months confirming details of active duty Marine, Major Christopher Warnagiris’ far more important conduct from the day before arresting him, and then let him out on personal recognizance.

While the government has provided evidence that he did intend to obstruct the vote count, nothing in his conduct from the day substantiates the civil disorder challenge. Yesterday, Fifield asked for two more months to find that evidence.

This seems like a mistake that the government is simply doubling down on. But if you haven’t found more compelling evidence after four months, what are the chances you will?

January 6: A Change of Pace

Although GWU’s tracker, which is still the best way to keep track of all the January 6 defendants (though this visual story from WaPo using their data is nifty) added four new January 6 defendants yesterday, the pace of new defendants has slowed considerably. While there are still some detention fights, several of those disputes (Proud Boys Ethan Nordean and Joe Biggs, and disorganized conspirators Nate DeGrave and Ronnie Sandlin, as well as Neo-Nazi sympathizer Timothy Hale-Cusanelli — have moved to the DC Circuit.

We’re likely to have more bail revocation fights. The other day, for example, Landon Copeland — who made news for his meltdown during a magistrate judge’s hearing last week — was arrested for some still unidentified bail violation. The government has also moved to revoke Patrick Montgomery’s bail because he — a professional hunting guide — shot a mountain lion that he — a felon — cannot legally possess.

But there are a couple of developments this week that point to what’s going on with this investigation.

Delayed phone exploitation

In a hearing in the case against mother and son defendants Deborah and Salvador Sandoval, Deborah’s attorneys were anxious to move to trial based off an apparent misunderstanding that the evidence on her sole computer device, her smart phone, would show she barely entered the Capitol. Meanwhile, the government revealed that because Salvador chose not to share passwords to his multiple devices, those are taking a lot longer to exploit. As I’ve already noted, Ethan Nordean is the only Proud Boys leadership co-conspirator whose phone DOJ was able to exploit without cracking the password first (the FBI got the password from Nordean’s wife). Exploiting all these phones is going to take a lot of time.

In another case, there appear to be privileged communications on Eric Torrens’ phone, which will delay the exploitation of that for up to four weeks as a filter team reviews the content.

In other words, even before you consider any delay created by FBI’s need to respond to Signal’s Moxie Marlinspike’s exposure of vulnerabilities in Cellebrite’s code, it will take some time to process the vast volume of evidence the government has obtained since January 6.

The network analysis

The arrest of Brittiany Dillon gives a sense of another cause of delay.

Bryan Betancur was one of the first wave of January 6 defendants to be arrested, on January 17, after his parole officer alerted the FBI that he had lied about handing out Bibles to get permission to travel from Baltimore to DC that day. The government got a warrant for his phone on January 20. Once they got into his phone, they discovered text messages between Betancur and Dillon in which Dillon described falling in the door of the Capitol during the riot. The government found video of her — falling down as she entered — on surveillance videos by January 23. The government obtained phone and Google warrants to confirm that Dillon had been inside the Capitol the day of the riot. For some reason, the FBI only got around to interviewing Dillon’s father, ostensibly about Betancur, on April 21; the agent got Dillon’s father to confirm Dillon’s ID while they were talking.

This is similar to what happened with Patrick Montgomery, who like Betancur was arrested on January 17. Only after FBI exploited his phone and found some key pictures did they arrest a buddy he was with that day, Brady Knowlton, while pursuing two others.

These arrests of friends of early arrestees may reflect an FBI agent trying to get arrest numbers, but in a number of cases, they seem to reflect larger investigative strategies based on things investigators have found in the profiles of the original defendant. By my count there are about 18 cases of network arrests aside from the militia conspiracies, and about half of those look like they may be more interesting than friends getting scooped up together. I would expect to see more of this going forward.

Delayed arrests

The two month delay between the time DOJ identified active duty Marine, Major Christopher Warnagiris, as the person who played a key role in keeping the East door of the Capitol open after it was first breached on January 6 and when they arrested him on Wednesday is far more interesting.

As the arrest affidavit explains, FBI isolated Warnagiris as a suspect based on his conduct as shown in video, and then published a Be On the Lookout picture to figure out who he was. On March 16, a former co-worker IDed him, and on March 17, the FBI interviewed one of his current co-workers, who positively IDed Warnagiris.

And that’s it–that’s where the narrative in the affidavit, which was signed on Wednesday, ends. They get a BOLO-based tip on March 16, and get military witnesses to confirm his ID on March 17. And that’s all they’re telling us about who he is and what other evidence they have against him.

I’m sure that’s not all that has transpired since FBI discovered an active duty Major played a key role in keeping the East Capitol breach open.

All the while, someone who by dint of being an active duty service member has clearance, has (as far as we know) been going into Quantico every day for the almost two months since they IDed him. That’s … an interesting investigative decision.

Compare that narrative to the one told in the arrest affidavit of Timothy Hale-Cusanelli, the Army reservist and Nazi-sympathizer who worked as a contractor at Naval Weapons Station Earle in New Jersey. On January 12, an informant told the FBI that Hale-Cusanelli was at the riot, on January 14, the informant recorded a conversation in which Hale-Cusanelli admitted to pushing and shoving along with the rest of the mob. Hale-Cusanelli has been jailed since the very next day, January 15 (he is appealing his detention to the DC Circuit). Hale-Cusanelli has not been charged with assault and he is not known to have played such a key role in compromising the Capitol from a second side.

Now, for many defendants, I can see taking your time after the initial rush of arrests. After all, if they were going to delete their Facebook, that would have happened (and did happen, with a goodly number of defendants) by January 9. But Warnagiris seems like a more urgent risk.

And, remarkably, DOJ apparently did not ask for any special conditions on Warnagiris. He has no location monitoring, no restrictions on possessing a gun, no specificity to his travel around DC (most defendants have stay-away orders, but for people like Warnagiris who are local to DC, they’re sometimes restricted to their District). They did not ask him to surrender his passport. Now, perhaps something is also going on with him in the military. But the whole thing — on top of the inevitable shock of having an active duty officer arrested — raises more questions than other cases.

All of which is to say that, with a defendant who genuinely poses unique security risks, the government is now taking their time to flesh out their investigation.

I’ve said from the start that this investigation has been lightning quick. That’s still, absolutely, true. But there’s going to be a lot more happening behind closed doors in the weeks ahead.