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Tucker Carlson and Glenn Greenwald Are Outraged that Bill Barr Set Up Antifa!!!! [Just Kidding]

You’ve no doubt seen the conspiracy theory championed by Tucker Carlson and Glenn Greenwald claiming that the unnamed Oath Keeper associates described in those indictments are actually FBI informants.


As happened with earlier propaganda campaigns (notably the one downplaying Brian Sicknick’s death), the conspiracy theory started with Revolver News, got magnified by Tucker Carlson, and got normalized by Glenn Greenwald (the latter of whose central role largely escaped attention because commentators don’t identify him, yet, as a right wing propagandist).In his first appearance, Carlson grotesquely accused Sharon Caldwell, who was described in later Oath Keeper documents as Person Two but was identified clearly in earlier documents by her first name and as Thomas Caldwell’s spouse, of being an informant who framed her husband.

Person Two and Person Three were organizers of the riot. The government knows who they are. But the government has not charged them. Why is that? You know why. They were almost certainly working for the FBI. So FBI operatives were organizing the attack on the Capitol on January 6, according to government documents. And those two are not alone! In all Revolver News reported there were, quote, “upwards of 20 unindicted co-conspirators in the Oath Keepers indictments, all playing various roles in the conspiracy, who have not been charged for virtually the exact same activities — and in some cases much, much more severe activities — as those named alongside them in indictments.”

Huh????

So it turns out that this white supremacist insurrection was, again, by the government’s own admission in these documents organized at least in part, by government agents.

This little campaign has led compromised members of Congress to embrace this excuse for the insurrection they previously have claimed was not an insurrection at all.


Thomas Caldwell’s wife, Sharon, is Person Two

To show that “Person Two,” whom Tucker Carlson alleges for framing Thomas Caldwell, is actually his wife, Sharon, you can compare this filing, where her name is not redacted, with this one, where “Person Two” has substituted for her name.

1. Sharon Caldwell is Thomas’ wife:

2. “Sharon and I are setting up shop there” (at the Comfort Inn Ballston) and then “Sharon and I are going our way.”

3. “Sharon was right with me!”

Later filings over release conditions confirm the selfies posted to Facebook were of Thomas’ wife, describe Thomas agreeing to be accompanied by his wife, Sharon, to Sunday Mass starting on Easter, expressing concern that his wife has to do all the chores on their 30-acre farm which has led to the loss of farm income, and describing that he rarely travels anywhere without his wife, Sharon Caldwell, and she’s willing to go with him every time he does leave their property.


Glenn and Tucker must be outraged that Billy Barr set up Antifa

Parts of this campaign are pathetic, even for the men involved, and may reflect a desperate attempt to repackage their own past claims.

For example, after parroting a bunch of obviously self-serving PR from Parler in the days after the attack (such as that the insurrectionists organized on Facebook, not Parler), Glenn now shows that Parler was actually sharing threats of violence with the FBI in advance, without noting that that undermines several things he said in the past, such as that the insurrectionists didn’t plan on Parler. This must be dizzying and embarrassing for Glenn.

And because Glenn has to package this — like he did his never-ending obsession with Hunter Biden’s laptop — as a failure of Democrats and liberal media, he remarkably claims that the left — which has so relentlessly asked why the FBI was caught unawares that Glenn even screen caps an example of Ryan Goodman linking to Carolyn Maloney doing so — is resistant to questioning the FBI’s role in the riot.

What accounts for this furious liberal #Resistance to questioning the FBI’s role in the January 6 riot and asking whether there are vital facts that are being concealed?

Maybe Glenn has a harder time getting CSPAN in Brazil than I do in Ireland, because when I’ve watched the multiple hearings Democratic Chairs of various committees (including Maloney) have had with FBI Director Chris Wray or now-National Security Branch EAD Jill Sanborn, they question the FBI about it over and over and over. Glenn literally made up this hash-tagged resistance out of thin air because he needs it to be true, when in fact the opposite is true.

But it’s important to look at what this propaganda campaign obscures.

Probably, this campaign got started because a number of people implicated in the investigation, now realizing that it won’t go away, are trying to absolve themselves of any responsibility. It has already happened with those charged for crimes committed on January 6. Dominic Pezzola suggested that a key witness against him was actually more involved in the riot than he was, only to learn he guessed wrong and that the government was going to invoke a terrorism enhancement with him. Similarly, top Proud Boys were hinting at challenges to the UCC-1 described in their indictment, before they grew conspicuously silent about it, as if they learned something that undercut such claims. [see update below]

The other reason people are talking about informants is that (FBI’s failure to respond notwithstanding) it’s not that far-fetched. Importantly, multiple Proud Boys have claimed to be informants, though Glenn only mentions Enrique Tarrio. Maybe that’s because the implication of the claims from the others leads to a place Glenn and Tucker don’t want to go. Of the four Proud Boys that Aram Rostom described as being FBI informants prior to January 6, three claimed to be sharing information about Antifa.

Reuters interviewed two Proud Boys members who spoke on the condition of anonymity about some members’ interactions with the FBI. Reuters also interviewed Proud Boys leader Enrique Tarrio, examined court records and interviewed sources close to the federal investigation.

The reporting showed:

– One Proud Boy left the group in December after telling other members he was cooperating with the FBI by providing information about Antifa, say Tarrio and two other Proud Boy sources. The former member, whom Reuters was unable to identify, insisted to group leaders that he had not revealed information about the Proud Boys, these people say.

– A second Proud Boy leader bragged in 2019 about sharing information with the FBI about Antifa, according to private chats leaked on social media. The chats’ authenticity was confirmed by a source familiar with the Proud Boys and the Jan. 6 case.

– A third Proud Boy leader, Joseph Biggs, who was indicted and charged with conspiracy in the January attack, has said in court papers he reported information to the FBI about Antifa for months. Reuters spoke to Biggs two days before the riot. In that interview, he said he had specific plans for Jan. 6, but declined to disclose them. But, he volunteered to Reuters in that call, he was willing to tell his FBI contact of his plans for the coming rally, if asked. Reuters wasn’t able to determine whether such a contact took place. [my emphasis]

What this suggests is not that the FBI set up the Proud Boys with paid informants, but the opposite: that under a President who “denounced” the Proud Boys by saying they should “Stand back and stand by,” and under an Attorney General who dismissed threats against a judge involving the Proud Boys as a technicality, the Proud Boys were viewed not as an equivalent (or greater) threat than Antifa, but instead were able to disguise their use of Antifa as a foil to sow violence by serving as informants against them.

If these three self-proclaimed informants are right (there’s good reason to doubt them), then it means under Bill Barr, the FBI was using informants not to set up the Proud Boys, but instead to set up Antifa.

If Tucker and Glenn were good faith actors and not paid propagandists, you would fully expect them to be outraged that the FBI set up Antifa.

Especially because of the possibility that the FBI didn’t take the Proud Boys threat seriously because (on top of being endorsed by the President and downplayed by the Attorney General), they prioritized investigating Antifa over investigating the Proud Boys. With that possibility in mind, read the framing of Glenn’s Substack post:

The original report, published by Revolver News and then amplified by Fox News’ Tucker Carlson, documented ample evidence of FBI infiltration of the three key groups at the center of the 1/6 investigation — the Oath Keepers, the Proud Boys, and the Three Percenters — and noted how many alleged riot leaders from these groups have not yet been indicted. While low-level protesters have been aggressively charged with major felonies and held without bail, many of the alleged plot leaders have thus far been shielded from charges.

The implications of these facts are obvious. It seems extremely likely that the FBI had numerous ways to know of any organized plots regarding the January 6 riot (just as the U.S. intelligence community, by its own admission, had ample advanced clues of the 9/11 attack but, according to their excuse, tragically failed to “connect the dots”).

[snip]

What would be shocking and strange is not if the FBI had embedded informants and other infiltrators in the groups planning the January 6 Capitol riot. What would be shocking and strange — bizarre and inexplicable — is if the FBI did not have those groups under tight control.

It is fucking insane that Glenn claims to be mystified by the possibility that a group endorsed in the President’s first Presidential debate and dismissed by the Attorney General would not get the proper scrutiny by the FBI. Trump very effectively punished people — especially at the FBI — for investigating entities close to him. And on September 29, 2020, Donald Trump made it quite clear the Proud Boys should get special treatment. That’s all the explanation you need. Though it is, indeed, reason for closer scrutiny, the kind of scrutiny that Democrats have been demanding, Glenn’s false claims to the contrary notwithstanding.

But if you want to raise the possibility that FBI had informants in the group, then the explanation may be equally as damning: That the FBI didn’t see January 6 coming because it was too busy treating Antifa as a terrorist threat.

Indeed, everything we know about the threat reporting on that day — which claimed the big risk of violence arose from the possibility of clashes between counter-protestors and right wing militias — suggests that may be what happened: that the FBI was looking the other way, possibly in conjunction with the militia that played a key role in planning the attack. That certainly accords with Acting Secretary of Defense Christopher Miller’s claim that Trump told him to use the National Guard to protect Trump supporters.

Since Glenn claims to be very familiar with the role of informants, surely he knows that multiple terrorists — definitely David Headley and allegedly Tamerlan Tsarnaev and Omar Mateen — have planned attacks under the cover of serving as informants (or in the case of Mateen, his father doing so). There were also at least two former FBI informants that played key parts in the Russian operation in 2016. The most logical answer to the questions that Glenn pretends to entertain is that the FBI didn’t look too closely at what Joe Biggs was planning (as part of a Kelly Meggs-brokered Florida alliance of militia groups with ties to Roger Stone), because they treated him as a credible source of reporting on Antifa.

The propaganda that goes unnoticed

The absurdity of accusing Sharon Caldwell of entrapping her spouse has, justifiably, gotten all the attention from this campaign.

But there’s a piece of propaganda that it incorporates — one parroted by Members of Congress — that deserves focus of its own: in framing his piece, Glenn not only claims that the plot leaders have been shielded from charges, he also states as fact that, “low-level protesters have been aggressively charged with major felonies and held without bail.”

While low-level protesters have been aggressively charged with major felonies and held without bail, many of the alleged plot leaders have thus far been shielded from charges.

In making this claim, Glenn is mindlessly parroting something that appears in the original Revolver piece.

The first category is the group of mostly harmless tourists who walked through already opened doors and already-removed barricades, and at most were guilty of minor trespassing charges and light property offenses. The second group consists of those who were violent with police officers, broke down barricades, smashed windows, belonged to a “militia” group engaged in military-style planning prior to the event, discussed transporting heavy weaponry, and so forth.

Up until now, the overwhelming (perhaps exclusive) share of counter-establishment reporting on 1/6 has focused on absolving the first group. And this is a valuable thing. The notion that these harmless “MAGA moms” wandering around the Capitol were domestic terrorists engaged in an insurrection is absurd. That many of these people are being held in prison, without bail, under harsh conditions, amounts to an unacceptable and outrageous abuse of basic human rights.

The only way to sustain a claim that “low-level protestors” have been charged with major felonies and held without bail is to claim that alleged plot leaders — people like Ethan Nordean, Joe Biggs, Billy Chrestman, and Kelly Meggs — were actually just protestors.

That’s because with perhaps two exceptions (people like Karl Dresch whose criminal records were cited as the reason for their detention), the only people who remain in jail are either those charged with planning the insurrection, or people who engaged in violence or came armed. And even many of those people were released. Just going in alphabetical order, Christopher Alberts brought a gun and a magazine to the insurrection but was released on bail. John Anderson is accused of assault but is out on bail. Richard Barnett, who entered Nancy Pelosi’s office with a high voltage stun gun, was initially jailed but has since been released. Bradley Bennett, whom the government argued went on the lam for weeks and destroyed his phone, got released on bail. Craig Bingert, involved in one of the conflicts with cops at a barricade, was released on bail. Gina Bisignano, accused of inciting violence and destruction with a bullhorn, was released on bail. Joshua Black, who was involved in confrontations with cops before heading to the Senate Chamber and said God ordered him to riot, was released on bail. James Breheny, an Oath Keeper who allegedly lied to the FBI and attended a key inter-militia planning event, is out on bail. Both men who brought zip ties to the Senate Chamber on the day of the riot, Eric Munchel and Larry Brock, are out on bail (and Brock isn’t even charged with a felony).

Even Brandon Fellows, charged with obstruction and present when Jeff Merkley’s office was trashed and laptop stolen, thus far remains out on bail, even after several bail violations.

Perhaps the only two people who remain in custody who weren’t either associated with a group being treated as a militia or involved in assault are Doug Jensen and Jacob Chansley. Both, though, played a kind of leadership role during the attack, both brought blades with them to the insurrection, both had direct confrontations with cops, and the government has argued (Jensen, Chansley) both exhibit the kind of fervor in their QAnon beliefs that pose a particular danger.

Given that QAnon had better success placing bodies where they were useful during the insurrection, I’m not sure it even makes sense to treat them differently than the more traditional militia.

Other than that, the men detained pre-trial are accused of leading the insurrection, precisely the people that this conspiracy theory falsely claims have been shielded from charges. Among the Proud Boys, Ethan Nordean, Joe Biggs, Charles Donohoe, Zack Rehl, and Kansas City cell leader Billy Chrestman remain jailed. Among the Oath Keepers, Kelly Meggs, Kenneth Harrelson, and Jessica Watkins remain jailed. All are accused of playing key leadership roles in the insurrection.

There were some questionable detention decisions early on. At this stage, however, there are no cases where people still detained are simply protestors on the wrong side of the law.

And yet even Glenn makes that false claim without any evidence.

Donald Trump’s FBI Director and Bill Barr’s hand-picked US Attorney called these defendants terrorists

There’s one more aspect of this conspiracy that is confounding.

Tucker Carlson and Glenn Greenwald suggest this is a Deep State plot to harm Trump and his supporters. Even Andrew McCarthy, who wrote a long and worthwhile piece debunking Tucker and Glenn’s conspiracies, nevertheless claims the prosecutorial decisions in this case reflect Democratic politicization.

Although Schaffer is plainly a member of the Oath Keepers conspiracy, the Biden Justice Department did not have him plead guilty to the conspiracy charge in the Oath Keepers indictment. That’s undoubtedly because, for the purposes of helping Democrats hype a white-supremacist terrorism narrative, the conspiracy charge is too minor. Although that charge has been portrayed by the media and the Justice Department as if it were a terrorism allegation, it actually involves a statute that criminalizes comparatively minor conspiracy offenses, fit for a maximum penalty of just five years’ imprisonment (with the possibility of no jail time at all).

So instead, DOJ had Schaffer plead guilty to a two-count criminal information, charging him with the substantive crimes of obstructing Congress and illegally carrying a dangerous weapon (bear spray) on restricted federal grounds. That allowed government officials to bray that Schaffer could be looking at 30 years in prison, which sure sounds a lot worse than five years. But it’s a feint. The 30-year level is just an aggregation of the maximum sentences prescribed by the two statutes in Schaffer’s guilty plea — i.e., the highest possible sentence that could potentially apply to anyone who violated these laws. The sentence a judge actually imposes within that 30-year range depends on the circumstances, with only the worst offenders getting the maximum sentence. Realistically, then, what matters in Schaffer’s case are the federal sentencing guidelines that apply specifically to him. In the plea agreement’s fine print, prosecutors concede that the guidelines call for a relatively paltry 41- to 51-month term, which may be reduced if his cooperation proves to be valuable.

I suspect that Schaffer is one of the unnamed, numbered “Persons” referred to in the Oath Keepers indictment.

[snip]

To be clear, Carlson is right that it is ridiculous for Attorney General Merrick Garland to portray the Capitol riot as if it were a terrorist attack and the people behind it as the most dangerous national-security threat we face. As noted above, the conspiracy allegation is not a terrorism charge: It carries a penalty of no more than five years. Carlson is right to point out that, despite the government’s and the media’s claims to the contrary, there is no indication that racism motivated the riot (the Oath Keepers, for example, are not a white-supremacist organization, and the indictment does not even hint that race had anything to do with January 6). Carlson is right that, even as congressional Democrats posture about the supposed need for a commission to fully expose the events of January 6, the government is withholding mounds of information — including the identity of the security official who killed rioter Ashli Babbitt, a concealment that would be unfathomable in a case where a police officer killed an African-American criminal suspect or a Black Lives Matter rioter. And Carlson was right to call out the ludicrous suggestion by Frank Figliuzzi, a former top FBI national-security official, that congressional Republicans who cynically supported Trump’s scheme to overturn the election result are the equivalent of a terrorist organization’s “command and control element.”

Christopher Wray — the FBI Director chosen by Donald Trump — has, from day one, called this a terrorist attack.

More importantly, the person leading this investigation for the first two months was the US Attorney Bill Barr installed with no input from Congress, Michael Sherwin. If Sherwin had his way, these people would be charged with seditious conspiracy. Under Sherwin, Proud Boy Dominic Pezzola’s crimes were labeled terrorism. Under Michael Sherwin, Jessica Watkins’ crimes were labeled terrorism. And while the Jon Schaffer cooperation agreement that McCarthy disdains was finalized after Sherwin left, signs of it were already evident before Sherwin left (note, McCarthy is probably wrong in his belief that Schaffer is one of the people identified thus far in the Oath Keepers conspiracy, and he misunderstands why prosecutors charged Schaffer like the did). A Sherwin-friendly article written after his departure quotes him stating these were not close cases (and also taking credit for making the bulk of the cases).

“These were not complicated cases,” Sherwin said of the Capitol breach probe. “What made these cases so unusual were the scope and scale of the crime,” reaching into almost every state in the country, including Florida.

Sherwin’s tour of duty as acting U.S. Attorney ended soon after the Biden administration took over the Justice Department. He was asked to stay on as the lead prosecutor in the Capitol breach probe, but Sherwin said it was time to move on after making the bulk of the cases in the investigation.

If you have a problem with the way this investigation unfolded, you have a problem not with Joe Biden’s DOJ, but instead with the guy Bill Barr installed into a politicized US Attorney role with no input from Congress.

Which may be why those who need to downplay the seriousness of the attack have instead resorted to baseless conspiracy theories.

Update: Because some dead-enders still don’t believe that Tucker Carlson has accused Sharon Caldwell of entrapping her husband Thomas, I’ve done an entire section showing how the same references to Person Two in a later filing show up as Thomas’ wife Sharon in an earlier one. I also describe all the efforts Sharon is making to keep her husband out of jail.

Update, July 25: Above, I noted that the Proud Boy leaders seem to have learned something that sated their curiosity about whether UCC-1 was an FBI informant. Indeed they did. At a recent hearing, one of the AUSAs on the case revealed that they had been provided this person’s identity and confirmation he was not an informant.

Several more relevant updates: First, Larry Brock has since been charged with obstruction, a felony, but remains out on bail. Doug Jensen, one of the last remaining people who wasn’t either a leader or charged with assault still being detained, was released on bail. Michael Curzio, one of just a few exceptions who got jailed because of past crimes, got released after serving a six month time served sentence for his misdemeanor trespass charge. Two non-violent defendants — Brandon Fellows and Thomas Robertson — have since had pretrial released revoked for violating their conditions.

Finally, the friend of former DEA officer Mark Ibrahim — who may himself serve as an FBI informant — not only debunked Ibrahim’s excuse for being at the insurrection, but made it clear that the FBI did not formally ask him to attend the event.

IBRAHIM said he went along with his friend, who had been asked by the FBI to document the event, and that he went along with his friend to assist with that effort.

Your affiant also interviewed IBRAHIM’s friend. According to the friend, IBRAHIM crafted this story about how his friend was at the Capitol to assist the FBI and that IBRAHIM was there helping him. IBRAHIM’s friend told your affiant that he was not there in any formal capacity for the FBI and that the FBI was not giving him directions or marching orders. He said that IBRAHIM crafted this story in an effort to “cover his ass.” According to IBRAHIM’s friend, IBRAHIM went to the rally in order to promote himself—IBRAHIM had been thinking about his next move after leaving the DEA and wanted the protests to be his stage for launching a “Liberty Tavern” political podcast and cigar brand.

Ibrahim, who brought another of the guns that Glenn claims no one brought to January 6 and displayed it publicly, is out on bail.

Were Proud Boys Using Livestream for Command and Control … and Other Operational Questions

Mapping out both the four charged conspiracy indictments against the Proud Boys as well as some — not all — of those with links to the groups who have not been included in the conspiracy indictments, has raised specific questions for me about how the Proud Boys operated that day and how they’re being prosecuted.

Were the Proud Boys using livestreams for command and control?

I’ve had this question more generally: whether someone offsite from the Capitol was providing Command and Control guidance for the assault on the Capitol. But the new “Leadership conspiracy” indictment against Ethan Nordean and Joe Biggs mentions that Gabriel Garcia — along with Joshua Pruitt — were among those who charged on the Capitol in the first wave, along with Dominic Pezzola.

That, by itself, makes me wonder if DOJ is going to expand that “Front Door” conspiracy to include Garcia and Pruitt.

But the content of Garcia’s charging document raises more questions for me.

Garcia is a former Army Captain, so one of the higher ranking former veterans among the Proud Boy defendants. He may have been IDed by what we now know was a request that Facebook provide the IDs associated with all the livestream video uploaded during the insurrection from inside the Capitol (indeed, it was Garcia’s complaint that first led me to suspect the FBI had used one).

Based on information provided by Facebook, Facebook User ID (“UID”) 100000183142825 has a Facebook account under the name “GABRIEL GARCIA.” GARCIA uploaded to his Facebook account at least two “Facebook live” videos taken inside of the Capitol building on January 6, 2021. Additionally, GARCIA uploaded at least one video before entering the Capitol building.

[snip]

In the video, GARCIA is walking east on Constitution Avenue towards the Capitol building with a large group of people. 2

Approximately 20 minutes later, at 19:19:08 UTC, or 02:19pm, GARCIA uploaded to Facebook a video filmed from inside the Capitol building:

If you were following Garcia’s livestreams in real time — even from a remote location — you would have visibility on what was going on inside almost immediately after the first group of the Proud Boys breached the Capitol.

In a later livestream, Garcia narrated what happened in the minutes after the Proud Boys had breached the Capitol.

GARCIA states, “We just went ahead and stormed the Capitol. It’s about to get ugly.” Around him, a large crowd chants, “Our house!”

Then, as a standoff with some cops ensued, Garcia filmed himself describing, tactically, what was happening, and also making suggestions to escalate violence that were heeded by those around him.

At minute 1:34, a man tries to run through the line of USCP officers. The officers respond with force, which prompts GARCIA to shout, “You fucking traitors! You fucking traitors! Fuck you!” As the USCP officers try to maintain positive control of the man that just rushed the police line, GARCIA yells, “grab him!” seemingly instructing the individuals around him to retrieve the man from USCP officers. GARCIA is holding a large American flag, which he drops into the skirmish in an apparent attempt to assist the individuals who are struggling with the USCP officers.

USCP officers maintain control of the line, holding out their arms to keep the crowd from advancing. At least one USCP officer deploys an asp. GARCIA turns the camera on himself and offers tactical observations regarding the standoff. [my emphasis]

Garcia’s livestream was such that you would obtain crowd size estimates from it, as well as specific names of officers on the front line, as well as instructions to “keep ’em coming,” seemingly asking for more bodies for this confrontation.

At minute 3:26, GARCIA, who is still in extremely close proximity to the USCP officer line again yells, “Fucking traitors!” He then joins the crowd chanting “Our house!” At minute 3:38, GARCIA states, “You ain’t stopping a million of us.” He then turns the camera to the crowd behind him and says, “Keep ‘em coming. Keep ‘em coming. Storm this shit.” GARCIA chants with the crowd, “USA!”

Soon after, GARCIA stops chanting and begins speaking off camera with someone near him. At minute 4:28, GARCIA says, “do you want water?” Though unclear, GARCIA seems to be asking the person with whom he is speaking. GARCIA is so close to an officer that, as the camera shifts, the only images captured are those of the officer’s chest and badge. [my emphasis]

Remarkably, Garcia filmed himself successfully ordering the rioters to hold the line — which they do — and then filmed them charging the police.

GARCIA yells, “Back up! Hold the line!” Shortly thereafter, the crowd begins advancing, breaching the USCP officer line. GARCIA says, “Stop pushing.” The last moments captured in the video are of the crowd rushing the USCP officers.

In the arrest affidavit for the Kansas City Proud Boys, a footnote describes how Nicholas Ochs and Nicholas DeCarlo were similarly filming what was going on as the Kansas City Proud Boys successfully thwarted police efforts to shut down access to the tunnels.

Proud Boys Nicholas Ochs and Nicholas DeCarlo can be seen in the background recording the unlawful conduct with their phones and other devices.

While their arrest documents don’t show the two livestreaming on Facebook (and Ochs would later complain about the connectivity inside the Capitol), if they were livestreaming somewhere, it would mean live video of tactically important moments from the siege would have been available to someone outside the Capitol or even someone watching more remotely, from a hotel room or even Florida.

Certainly, Garcia’s stream would be operationally useful if someone were providing command and control remotely. Was someone?

Does DOJ now have a list of all the teams from the Telegram channels?

The latest detention motions for Ethan Nordean and Joe Biggs (as well as the Leadership Conspiracy indictment) describe the process of divvying up the Proud Boys in attendance into teams, which process involves an unindicted co-conspirator who presumably is cooperating.

January 4, 8:20 PM, unindicted co-conspirator: “We had originally planned on breaking the guys into teams. Let’s start divying them up and getting baofeng channels picked out.”

January 5, 9:30 to 9:32 AM, Biggs: “What are the teams. I keep hearing team [sic] are picked already.” A few minutes later, [Biggs] stated “Who are we going to be with. I have guys with me in other chats saying teams are being put together.”

January 5, 9:17 to 9:20 PM, Biggs: “We just had a meeting woth [sic] a lot of guys. Info should be coming out” … “I was able to rally everyone here together who came where I said” … “We have a plan. I’m with [Nordean]. [my emphasis]

The replication of these Telegram chats, from two different channels, stops at 10AM on January 6 (they presumably continued after that time, but we know that Nordean’s phone was turned off during the day).

That suggests DOJ is likely to know what the various teams were and who led them. There were 60 people on the participants’ Telegram channel from that day, which means they may have a lot more teams to indict.

Who paid for the vans from Florida to DC?

The detention memo for Christopher Worrell, a Proud Boy who sprayed law enforcement with pepper spray, reveals that he and his girlfriend traveled to DC on vans paid for by someone else and stayed in hotels also paid for by someone else.

According to Worrell’s live-in girlfriend, who was interviewed by law enforcement on March 12, 2021, she and Worrell traveled to Washington D.C. in the days leading up to January 6, 2021, with other Proud Boys in vans paid for by another individual. Their hotel rooms were also paid for by another individual.

Particularly given that these vans were from Florida — where Tarrio, Biggs, and the key figures from the Oath Keepers all hung out (and hung out with Roger Stone) — the person that paid for these things may be on the hook for any conspiracy ultimately charged as a whole.

What kind of cooperation will DOJ get from the Front Door co-conspirators?

As of right now, just Dominic Pezzola and William Pepe are charged in what I call the “Front Door” conspiracy — the group of people who first breached the Capitol on the west side of the building. As noted above, DOJ itself identified Garcia and Pruitt to have some tie to this group (which makes me wonder if an expanded conspiracy obtained Friday will be released before I’m done with this post!).

But DOJ has not included Robert Gieswein or Ryan Samsel, who were also part of this initial assault. Neither is described as a Proud Boy in their charging documents, but both were with the Proud Boys before the operation. Both men are also on the hook for fairly serious assault charges (a cop that Samsel pushed over got a concussion and Gieswein brought a bat he used). Samsel has not been indicted and the joint request for a continuance (filed way back on February 17) explaining why explicitly states the two sides are seeking a “resolution,” (that is, a plea deal).

The government and counsel for the defendant have conferred, and are continuing to communicate in an effort to resolve this matter.

As to Gieswein, he has been indicted. But his docket has none of the proceedings that cases moving towards trial would have, such as a motion for a protective order (though given the delays on PACER postings that doesn’t definitely mean anything). And well after his magistrate docket in Colorado was closed, he submitted several sealed filings to it.

If I were someone that the government had dead to rights with not just brutal assault, but assault that was tactically important to the success of the entire operation, particularly if I had a criminal record that would add to prison time at sentencing (as Samsel does), I would sure want to help prosecutors assign some responsibility for those assaults to those who guided my actions on that day. Thus far, assault is not included in any of the conspiracy indictments (it is individually charged against Pezzola and a threatened assault was charged against William Chrestman), but if it were, it would raise the stakes of them significantly.

I’m also interested in the case of Chris Kelly. He’s not a Proud Boy. But in advance of his trip, he made it public that he was traveling to DC from NY with some members of the Proud Boys.

I’ll be with ex NYPD and some proud boys. This will be the most historic event of my life.

Kelly also made it clear the NYPD officer was his brother.

The Kelly Facebook Account also shows on January 2, 2021 KELLY messaged another user and stated, “Me and [NAME] plus a couple of others are headed down the 5th and staying 2 nights. Ill be frequency 462.662 on a ham radio if cell service goes down.” Public records databases also revealed Christopher M Kelly has a brother (“S1”) of New City, New York with the same first name used in the above statement. New York City Police Department records confirm S1 is a retired police officer. Based on this statement, and the statement above about traveling with “ex NYPD and some proud boys” your affiant believes that this comment indicated that KELLY planned to travel to Washington, D.C. with S1.

We still don’t know who a cooperating witness against Pezzola and Pepe is, who described to the FBI, almost immediately, a conversation promising that the Proud Boys would have killed Mike Pence had they found him that day. Pezzola had suspected that it was the guy who first recruited him into the Proud Boys and further speculated the conversation reported by the witness occurred on the trip home (which would help to explain how Pepe, also from NY, got included in conspiracy charges with Pezzola). That is, Pezzola believed that the cooperating witness must have been in a car with him from DC to NY.

But the government revealed that they are not prosecuting this cooperating witness.

The defendant speculates that W-1 is a “cooperating witness” with deeper ties to the Proud Boys than the defendant. The defense is incorrect. W-1 has not been charged with a crime in connection with the events of January 6, 2021, and the government is unaware of any affiliation between W-1 and the Proud Boys or any indication that W-1 knew the defendant prior to January 5, 2021.

Kelly can’t be that witness. He had already been charged at the time. But unless I missed his arrest, Kelly’s brother might be. And if his brother were cooperating (which would require honest testimony about what brother Chris had done), then it would raise the chances that Chris Kelly would be too. And why not? If I had traveled to DC with the people who initiated the entire insurrection, I’d want to make damned clear that I wasn’t part of that. Like Samsel, Kelly has not been indicted (publicly) yet.

For some time, the government had been saying they weren’t prepared to make plea deals yet. The inclusion of Co-Conspirator 1 in the Leadership indictment strongly suggests that’s done. And if Samsel and the government were discussing a plea over a month ago, you can be sure he has already proffered testimony to the government.

So the government likely has some cooperators in the “Front Door” conspiracy. The question is only, how much?

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

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

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

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

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

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

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

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

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

Oath Keepers

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

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

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

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

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

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

Proud Boys

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

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

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

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

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

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

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

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

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

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

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

Rolling Updates:

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

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

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

 

Journalists May Be Most at Risk (as Described) from a Presumed January 6 GeoFence Warrant

On February 22, the Intercept had a thinly sourced story reporting (heavily relying on one “recently retired senior FBI official” whose motive and access weren’t explained and one other even less-defined source) on methods used in the January 6 investigation. It started by describing something unsurprising (some of which had been previously reported): that the FBI was using emergency legal authorities to conduct an investigation in the wake of an insurrection.

Using special emergency powers and other measures, the FBI has collected reams of private cellphone data and communications that go beyond the videos that rioters shared widely on social media, according to two sources with knowledge of the collection effort.

In the hours and days after the Capitol riot, the FBI relied in some cases on emergency orders that do not require court authorization in order to quickly secure actual communications from people who were identified at the crime scene. Investigators have also relied on data “dumps” from cellphone towers in the area to provide a map of who was there, allowing them to trace call records — but not content — from the phones.

From there, the story made conclusions that were not borne out by the evidence presented (which is not to say that such conclusions won’t one day be supported).

In particular, the story suggested that these investigative methods were used to investigate Congress, and likewise suggested that the involvement of Public Integrity prosecutors must mean members of Congress are already the focus of the investigation and further suggesting that the location data collection tied to the investigation of members of Congress.

The cellphone data includes many records from the members of Congress and staff members who were at the Capitol that day to certify President Joe Biden’s election victory.

[snip]

The Justice Department has publicly said that its task force includes senior public corruption officials. That involvement “indicates a focus on public officials, i.e. Capitol Police and members of Congress,” the retired FBI official said.

To make the insinuation, the story misstates the intent of a Sheldon Whitehouse statement aiming to use Congressional authorities to remove coup sympathizers from committees of jurisdiction (and ignores Whitehouse’s earlier statement that calls for the kind of data collection described in the story).

On January 11, Sen. Sheldon Whitehouse, D-R.I., released a statement warning against the Justice Department getting involved in the investigation of the attack, at least regarding members of Congress, asserting that the Senate should oversee the matter.

Thus far, the story seems tailor-made to get Congress — the Republican members of which are already trying to sabotage the investigation — to start tampering with it.

Far down in the story, it also describes the orders used with more specificity — but not yet enough specificity to substantiate the claims made earlier in it.

Federal authorities have used the emergency orders in combination with signed court orders under the so-called pen/trap exception to the Stored Communications Act to try to determine who was present at the time that the Capitol was breached, the source said. In some cases, the Justice Department has used these and other “hybrid” court orders to collect actual content from cellphones, like text messages and other communications, in building cases against the rioters.

At the time I suggested the story’s conclusions went well beyond the evidence included in it. I had several concerns about the story.

First, it didn’t address the granularity of location data collected, explaining whether the data collection focused just on the Capitol building or (as the story claimed) “in the area” generally. The Capitol is, according to multiple experts, incredibly wired up, meaning that one can obtain a great deal of data specific to the Capitol building itself. That matters here, because as soon as Trump insurrectionists entered the Capitol building, they committed the trespass crimes charged against virtually all the defendants. And the people legally in the Capitol that day were largely victims and/or law enforcement. It’s not an exaggeration to say that anyone collected off location collection narrowly targeted to the Capitol building itself is either a criminal, a witness, or a victim (and often some mix of the three).

If location collection was focused on the Capitol building itself (we don’t know whether it was or not, and the reports of collection aiming to the find the person who left pipe-bombs in the neighborhood on January 5 do pose real cause for concern), it mitigates some of the concerns normally raised by the use of IMSI-catchers at public events and protests, which is that such location collection would include a large number of people who were just engaging in protected speech, as many of the people outside the Capitol were. Similarly, unlike with most geofence warrants or tower dumps, which are used to find possible leads for a crime, here, FBI had an overwhelming list of suspects from its mass of tips and video evidence already: it wasn’t relying on location data to find suspects. Plus, with normal geofence warrants and tower dumps, the vast majority of the data obtained comes from uninvolved people, posing a risk that those unrelated people could become false positives who, as a result, would get investigated closely. Here, again, anyone collected from location data inside the Capitol was by definition associated with the crime, either as witness, victim, or perpetrator.

Finally, the story not only didn’t rely on, but showed little familiarity with the hundreds of arrest affidavits released so far, which provide some explanation (albeit undoubtedly parallel constructed) for how the FBI built cases against those hundreds of people.

Well before The Intercept article was written, there were a few interesting techniques revealed in the affidavits. Perhaps the most interesting (and not specifically covered in The Intercept article, unless as a hybrid order) described identifying Christopher Spencer from the livestreams on Facebook he posted from inside the Capitol.

The government received information as part of a search warrant return that Facebook UID 100047172724820 was livestreaming video in the Capitol during these events. The government also received subscriber information for Facebook UID 100047172724820 in response to legal process served on Facebook. Facebook UID 100047172724820 is registered to Chris Spencer (“SPENCER”). SPENCER provided subscriber information, including a date of birth; current city/state, and a phone number to Facebook to create the account.

[snip]

The government received three livestream videos from SPENCER’s Facebook UID 100047172724820 as part of a search warrant return. At different times during the videos, Spencer either used the rear facing camera to show himself talking, or turned the phone toward his face. Your affiant would note that the camera is capturing a reversed image of SPENCER in two of these sections of video as evidenced by the text on SPENCER’s hat. As such, reversed images are also provided below the original screenshot [my emphasis]

The first mention of the Facebook return appears before a paragraph describing an associate of Spencer’s who had seen the videos and recognized his wife, and the later paragraph describes the associate sharing a phone number for Spencer that the FBI seemed to have already received from Facebook. As written (and this structure is matched in the affidavit for Spencer’s wife, Jenny) the narrative may indicate that the FBI obtained the Facebook return before the tip and identified Spencer from the Facebook return even before receiving the tip. This is one of the strongest pieces of evidence that the FBI used data obtained from location-based collection in the Capitol from any social media source to identify an unknown subject. But, as described, it also has some protections built in. The data was obtained with a warrant, not PRTT or d-order. That means the FBI would have had to show probable cause to obtain the content (but, for the reasons I explained above, most people in the Capitol live-streaming were committing a crime). There’s also no indication here that this video was privately posted (though with a warrant the FBI would be able to obtain such videos).

All this is a read of what this paragraph might suggest about data collection. It doesn’t describe whether the data was obtained via a particularized warrant (targeting just Spencer), or whether the FBI asked Facebook to provide all live-streaming posted from within the Capitol during the insurrection (there are other early affidavits that targeted the content of Facebook via individualized warrants). In Spencer’s case, I suspect it’s the latter (there’s nothing that remarkable about Spencer’s video, except he was outside Speaker Pelosi’s office). Even so, for most people, posting from inside the Capitol during the insurrection would amount to probable cause the person was trespassing.

Even before The Intercept piece was posted I had also pointed to the affidavit for the Kansas cell of the Proud Boys. It uses location data to place one after another of the suspects “in or around” the Capitol during the insurrection: cell site data showed that the phones of Christopher Kuehne, Louis Colon, Felicia Konold were “in or around” the Capitol during the insurrection. That of Cory Konold, Felicia’s brother, was not shown to be, but,

Lawfully-obtained cell site records indicated that the FELICIA KONOLD cell called a number associated with CORY KONOLD while in or around the Capitol on January 6, 2021.

The most interesting detail in that affidavit pertained to William Chrestman. His phone wasn’t IDed off a cell site. Rather, it was IDed by connecting to Google services “in or around” the Capitol.

According to records produced by CHRESTMAN’s wireless cell phone provider in response to legal process, CHRESTMAN is listed as the owner of a cell phone number (“CHRESTMAN cell”). Lawfully-obtained Google records show that a Google account associated with the CHRESTMAN cell number was connected to Google services and was present in or around the U.S. Capitol on January 6, 2021.

A more recent document — the complaint against the southern Oath Keepers obtained on February 11 but unsealed long after that — describes the phones of those suspects in an area “includ[ing]” (but not necessarily limited to) the interior of the Capitol.

having utilized a cell site consistent with providing service to the geographic area that includes the interior of the United States Capitol building.

Unlike Spencer, the use of location data in the Proud Boys and Oath Keeper complaints seems to be used to establish probable cause. In both the militia group cases, the individuals appear to have been identified via different means (unsurprisingly, given their flamboyantly coordinated actions), with the location data being used in the affidavit to flesh out probable cause. (Undoubtedly, the FBI exploited this information far more thoroughly in an effort to map out other co-conspirators, but it is equally without doubt that the FBI had adequate probable cause to do so.)

The other day, DOJ unsealed an affidavit — that of Jeremy Groseclose — that provides more detail about the location collection at the Capitol. The FBI describes identifying Groseclose off of two tips, both on January 7, from people who had seen him post about being in the Capitol on Facebook (and in one case, remove his Facebook posts after he posted them).

Groseclose wore a gas mask for much of the time he was inside the Capitol (though wore the same clothes as he had outside), which undoubtedly made it more difficult to prove he was the person illegally inside the Capitol preventing cops from ousting the rioters.

The FBI affidavit describes times when Groseclose appears on security footage from inside the Capitol without the gas mask, but doesn’t include it. To substantiate his presence in the Capitol, the FBI included three paragraphs describing what must be a Google geofence warrant showing the device identifiers for everyone within a certain geographic area.

According to records obtained through a search warrant served on Google, a mobile device associated with [my redaction]@gmail.com was present at the U.S. Capitol on January 6, 2021. Google estimates device location using sources including GPS data and information about nearby Wi-Fi access points and Bluetooth beacons. This location data varies in its accuracy, depending on the source(s) of the data. As a result, Google assigns a “maps display radius” for each location data point. Thus, where Google estimates that its location data is accurate to within 10 meters, Google assigns a “maps display radius” of 10 meters to the location data point. Finally, Google reports that its “maps display radius” reflects the actual location of the covered device approximately 68% of the time. In this case, Google location data shows that a device associated with [my redaction]@gmail.com was within the U.S. Capitol at coordinates associated with the center of the Capitol Building, which I know includes the Rotunda, at 2:56 p.m. Google records show that the “maps display radius” for this location data was 34 meters.

Law enforcement officers, to the best of their ability, have compiled a list (the “Exclusion List”) of any Identification Numbers, related devices, and information related to individuals who were authorized to be inside the U.S. Capitol during the events of January 6, 2021, described above. Such authorized individuals include: Congressional Members and Staffers, responding law enforcement agents and officers, Secret Service Protectees, otherwise authorized governmental employees, and responding medical staff. The mobile device associated with [my redaction]@gmail.com is not on the Exclusion List. Accordingly, I believe that the individual possessing this device was not authorized to be within the U.S. Capitol Building on January 6, 2021. Furthermore, surveillance footage from the Rotunda, time-stamped within a minute of 2:56 p.m., shows GROSECLOSE, in his distinctive clothing, using his cell phone in an apparent attempt to take a picture.

Records provided by Google revealed that the mobile device associated with [my redaction]@gmail.com belonged to a Google account registered in the name of “Jeremy Groseclose.” The Google account also lists a recovery SMS phone number that matches [my redaction]. The recovery email address for this account appears to be in the name of GROSECLOSE’s significant other, with whom he has two children in common. Additionally, I have reviewed subscriber records from U.S. Cellular, related to the phone number [my redaction]. This number, along with another, are connected to an account in the name of GROSECLOSE’s significant other. The billing address for this account is [my redaction]. One of GROSECLOSE’s neighbors identified [my redaction] as GROSECLOSE’s address.

This seems to confirm that FBI obtained a geofence warrant from Google, but — at least as described — it was focused on those at the Capitol, perhaps focused on the Rotunda and anything 100 feet from it. This is the kind of granularity that will exclude most uninvolved people. They may have used it (or included it in the affidavit) because by wearing a gas mask, Groseclose made it difficult to show his face in the existing film of the attack.

The affidavit suggests that the Google geofence relied not just on GPS data of users’ phones, but also Wi-Fi access points (there’s another affidavit where the suspect’s phone triggered the Capitol Wi-Fi) and Bluetooth beacons. Again, given how wired the Capitol is, this would offer a granularity to the data that wouldn’t exist in most geofence warrants.

Finally, and most interestingly, this affidavit (obtained on the same day as the The Intercept story and so presumably after the Intercept called for comment) describes that the FBI has an “Exclusion List” of everyone who had a known legal right to be in the Capitol that day. That suggests that, after such time as the FBI completed this list, they could identify which of those present in the Capitol were probably there illegally.

There are concerns about FBI putting together a list like this. After all, Members of Congress might have good Separation of Power reasons to want to keep their personal phone numbers private. That said, there’s reason to believe that the FBI has used this method of separating out congressional identifiers and creating a white list in the past (including with the Section 215 phone dragnet), with congressional approval.

The concern arises in FBI’s definition of how it describes those legally present:

  • Members of Congress
  • Congressional staffers
  • Law enforcement responding to the insurrection (as distinct from law enforcement joining in it)
  • Secret Service Protectees (AKA, Mike Pence and his family)
  • Other government employees (like custodial staff)
  • Medical staff

Not on this list? Journalists, not even those journalists holding valid congressional credentials covering the vote certification.

Already, there have been several cases where suspects have claimed to be present as media, only to be charged both because of their comments while present and the fact that they don’t have congressional credentials. Three are:

  • Provocateur John Sullivan, who filmed the riot and sold the footage to multiple media outlets and “claimed to be an activist and journalist that filmed protests and riots, but admitted that he did not have any press credentials.”
  • Nick DeCarlo, who told the LA Times he and Nicholas Ochs were there as journalists but who FBI noted, “is not listed as a credentialed reporter with the House Periodical Press Gallery or the U.S. Senate Press Gallery, the organizations that credential Congressional correspondents.”
  • Brian McCreary, who on his own sent the video he took on his phone while inside the Capitol, but who later admitted to the FBI that entering the Capitol “might not have been legal” and also described admitting to cops present that he was not a member of the media.

If the FBI is going to use official credentials to distinguish journalists from trespassers, then it could also use those credentialing lists to white list journalists present at the Capitol. But to do that, the journalists in question would have to be willing to share identifying information for all the devices that were turned on at the Capitol, something they might have good reasons not to want to do.

Plus, I suspect there are a number of journalists without Congressional credentials who were covering the events outside the Capitol and, as the rally turned into a riot, entered the Capitol to cover it. Those journalists risked their lives and provided some of the most important early information about the riot and did so in ways that in no way glorified it. But in doing so, their devices may be in an FBI database relating to the attack.

There is clear evidence that the FBI obtained location data from the Capitol as part of its investigation, including Google and almost certainly Facebook. Thus far, the available evidence suggests that the ability to target that collection narrowly limits the typical concerns about tower dumps and geofence warrants (again, any similar data collection outside the Capitol in an effort to find the person who left the pipe bombs is another issue). Moreover, almost all those legal present in the Capitol appear to be whitelisted.

But not all. And the exception, journalists, include those who have the most at stake not having their devices identified and investigated by the FBI.

All that said, perhaps a similarly controversial question pertains to preservation orders. The Intercept describes a letter from Mark Warner calling on carriers to preserve data (and rightly questioning his legal authority to make such a request), then suggests the carriers have done so on their own.

Some of the telecommunications providers questioned whether Warner has the authority to make such a request, but a number of them appear to have been preserving data from the event anyway because of the large scale of violence, the source said.

The story doesn’t consider the — by far — most likely explanation, which is that FBI served very broad preservation orders on social media companies (though some key ones, such as Facebook, would keep data for a period even after insurrectionists attempted to delete it in the days after the attack as normal practice). In any case, broad preservation orders on social media companies would be solidly within existing precedent. But I suspect it may be one of the more interesting legal questions that will come out of this investigation.

Update March 7: Added McCreary.

Beryl Howell Takes an Early Swipe at the Trump Made-Me-Do-It Defense and Other Detention Standards

When DC Chief Judge Beryl Howell ordered Richard Barnett detained pending trial, the only record of her judgement — beyond her strong language at the detention hearing — was the order itself, including a paragraph about Barnett’s, “brazen conduct.” When she ordered Rachel Powell released to home detention, she released no opinion.

But when she ordered Proud Boy William Chrestman detained until trial, she wrote a 32-page opinion explaining her thinking. With regards to Chrestman — who threatened a cop, carried an axe-handle as weapon, and organized a cell of people who worked together to prevent police from expelling insurrectionists — Howell judged that his pre-trial detention wasn’t a close call: he poses a danger to the nation.

Defendant’s conduct on January 6 and blatant disregard for the law clearly show that he is a serious danger to the community and the nation, and that no condition or combination of conditions can be imposed that will ensure his compliance with the law pending trial in this matter.

But as one after another DC District judge struggles with the difficult pre-trial detention questions and just days after Judge Amit Mehta noted that some of these legal questions will pertain to a significant number of January 6 decisions, Howell used her decision on Chrestman to address three issues that have been and will continue to be litigated by insurrectionists:

  • Standards for review of magistrate decisions from other districts
  • The distinctions between different roles in the insurrection
  • The claim that Trump ordered or sanctioned insurrection

Magistrate decisions from other districts

As she did with a number of other defendants, after a magistrate in Kansas granted Chrestman pre-trial release, Judge Howell granted an emergency request from prosecutors staying that order for another review. And in at least one case where DC judges reviewed a magistrate’s decision (Dominic Pezzola), the defendant has tried to limit the scope of the review.

In most cases, January 6 defendants will have their cases initially reviewed by a magistrate local to their homes, only to be prosecuted in the DC District.

Perhaps to establish both the primacy and the scope of these District Court orders, in her opinion Howell reviews the requirements for granting a hearing on detention (both Jessica Watkins’ and Thomas Caldwell’s attorneys had argued their charged crimes did not merit a review).

As generally pertinent to charged offenses arising out of the January 6, 2021 assault on the Capitol, a detention hearing must be held on the government’s motion when the charged offense involves:

1. “[A] crime of violence,” id. § 3142(f)(1)(A), which is defined broadly as an offense having as an element the attempted, threatened, or actual use of physical force against a person or property of another, or a felony offense that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense, id. § 3156(a)(4)(A)–(B);

2. “[A]n offense listed in section 2332b(g)(5)(B) for which a maximum term of imprisonment of 10 years or more is prescribed,” id. § 3142(f)(1)(A), which “list” includes “a violation of . . . [18 U.S.C. §] 1361 (relating to government property or contracts),” id. § 2332b(g)(5)(B)(i);4

3. “[A]ny felony that is not otherwise a crime of violence that involves . . . the possession or use of a firearm or destructive device . . . or any other dangerous weapon[,]” id. § 3142(f)(1)(E);

4. “[A] serious risk that such person will flee,” id. § 3142(f)(2)(A); or

5. “[A] serious risk that such person will obstruct or attempt to obstruct justice, or threaten, injure, or intimidate, or attempt to threaten, injure, or intimidate, a prospective witness or juror,” id. § 3142(f)(2)(B).

A subset of the types of offenses requiring a detention hearing triggers a rebuttable presumption “that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community if the judicial officer finds that there is probable cause to believe that the person committed” that subset of offenses. Id. § 3142(e)(3). As pertinent to charged offenses arising out of the January 6, 2021 assault on the Capitol, that subset of offenses includes “an offense listed in section 2332b(g)(5)(B) of title 18, United States Code, for which a maximum term of imprisonment of 10 years or more is prescribed.” Id. § 3142(e)(3)(C).

4 18 U.S.C. § 2332b(g)(5) provides a definition for “the term ‘Federal crime of terrorism,’” when the offense is “a violation of” an enumerated list of Federal offenses set out in § 2332b(g)(5)(i)–(iv) and the offense “is calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct,” id. § 2332b(g)(5)(A). While individuals involved in the January 6, 2021 assault on the Capitol expressed publicly the intent to disrupt a government function in certifying the results of the 2020 Presidential Election and to coerce such disruption by breaching the Capitol, to date, to the knowledge of this Judge, no person charged in connection with the assault on the Capitol has been charged with a “Federal crime of terrorism,” under chapter 113B of title 18, United States Code, but only with separate, predicate enumerated offenses, such as violation of 18 U.S.C. § 1361 (relating to government property or contracts).

Howell then reaffirms that when conducting such reviews, District Court judges conduct a de novo review (Dominic Pezzola’s attorney, for example, asked the District judge for a more limited review).

[B]oth the BRA and the Federal Magistrates Act, 28 U.S.C. § 636, support the conclusion, reached by every circuit to have considered the question, that a district court reviews a magistrate judge’s release or detention order de novo.

[snip]

First, the BRA vests the authority to review and ultimately to “determine[]” a motion for review of a pretrial release or detention order in a “judge of a court having original jurisdiction over the offense.” 18 U.S.C. § 3145. Even when reviewing an order issued under § 3142, then, the district court exercises its original jurisdiction over the case as a whole, not appellate jurisdiction over the magistrate judge’s release or detention order.

Thus in the Chrestman case and in the hundred or so detention motions that will come, Howell lays out, the DC District judge will — if the government requests a review under the available offenses — decide the detention question.

Distinctions between different roles in the insurrection

Howell then turns to the difficult question of presiding over the detention reviews for hundreds of defendants involved in an unprecedented crime. Before assessing the question with respect to Chrestman, she addresses the question more generally:

The BRA, of course, requires a reviewing court to assess the specific conduct of each defendant, but the varying results in these cases raise the natural question, given the undeniably traumatic events of January 6, of the standard against which a particular defendant’s actions on that day should be evaluated. Before evaluating the nature and circumstances of defendant’s specific conduct, then, consideration of the differentiating factors that warrant pretrial detention of certain defendants facing criminal liability for their participation in the mob and pretrial release of others is helpful.

She lays out the kind of things judges might consider (all but one of which happen to work against Chrestman, but which provide useful guidelines for others). This analysis covers three pages, but the questions she asks (I’ve changed the order slightly) are:

  • Was the defendant charged with misdemeanor or felony offenses?
  • Did the defendant remain on the Capitol grounds or breach the building?
  • Did the defendant engage in planning before arriving at the Capitol, for example by obtaining weapons or gear?
  • Did the defendant carry or use a dangerous weapon?
  • Did the defendant coordinate with other participants before, during, or after the riot?
  • Did the defendant assume a formal or de facto leadership role?
  • Did the defendant injure or attempt to injure others?
  • Did the defendant damage or attempt to damage federal property?
  • Did the defendant threaten federal officers or law enforcement?
  • Did the defendant specifically promote the disruption of the electoral vote?

These questions aren’t surprising. Similar questions (excepting the first) seem to guide the government’s charging decisions. Still, as Howell says explicitly, they offer a “useful framework” to help contextualize each defendant’s actions.

Using these guidelines, she assesses that Chrestman’s actions pose a particularly grave threat to the country.

The nature and circumstances of defendant’s offenses evince a clear disregard for the law, concerted and deliberate efforts to undermine law enforcement, and an apparent willingness to take coordinated, pre-planned, and egregious actions to achieve his unlawful aims, all of which indicate that he poses a danger to the community. This first factor weighs heavily in favor of detention.

Without relying on the framework of terrorism (though she describes Chrestman as “terrorizing elected officials”), Howell places the danger in Chrestman’s pre-planning and coordination to undermine government.

Defenses claiming to be following Trump’s orders

As I noted, in his bid for pre-trial release, Chrestman suggested that he believed he was operating with Trump’s approval.

To prefigure how those offenses relate to the likelihood of Mr. Chrestman succeeding on pretrial release, we must start long before January 6.

It is an astounding thing to imagine storming the United States Capitol with sticks and flags and bear spray, arrayed against armed and highly trained law enforcement. Only someone who thought they had an official endorsement would even attempt such a thing. And a Proud Boy who had been paying attention would very much believe he did. They watched as their “pro-America, pro-capitalism and pro-Trump” rhetorical strategy “allowed the Proud Boys to gain entry into the Republican mainstream.”11 They watched as law enforcement attacked Black Lives Matter and anti-fascism protestors, but escorted Proud Boys and their allies to safety.12 They watched as their leader, Enrique Tarrio, was named Florida state director of Latinos for Trump.13 They watched the Trump campaign, “well aware of the organized participation of Proud Boys rallies merging into Trump events. They don’t care.”14 They watched when then-President Trump, given an opportunity to disavow the Proud Boys, instead told them to “stand back and stand by.”15 They understood that phrase as “a call to arms and preparedness. It suggests that these groups, who are eager to do violence in any case, have the implicit approval of the state.”16 Having seen enough, the Proud Boys (and many others who heard the same message)17 acted on January 6.

In the guise of addressing Chrestman’s claim that he has a viable defense, even in spite of the overwhelming evidence against him, Howell takes an early swipe at a defense many, if not most, defendants are offering: Trump invited or ordered the insurrectionists to take the illegal actions.

Howell admits she’s reviewing the particular form of the argument Chrestman presented before it has been sufficiently briefed (without also noting that one after another defendant is already trying some version of it).

This theory has not been fully briefed by the parties, and the question of former President Trump’s responsibility, legal, moral, or otherwise, for the events of January 6, 2021 is not before this Court.

Defendant presents this defense only for the limited purpose of counterbalancing the overwhelming weight of the evidence against him.

Nevertheless, Howell reviews the precedents Chrestman invokes to suggest that he might be excused for following Trump’s directions by distinguishing — first of all — between believing that a government official was describing the law accurately and, as happened here, believing that a government official could bless a “waiver of law.”

Nonetheless, in order to measure properly defendant’s potential privilege against liability against the government’s proffer, some exploration of the proposed due process defense is necessary.

Defendant invokes a novel iteration of a complete defense to criminal liability that arises when an individual criminally prosecuted for an offense reasonably relied on statements made by a government official charged with “interpreting, administering, or enforcing the law defining the offense” and those statements actively misled the individual to believe that his or her conduct was legal. United States v. Cox, 906 F.3d 1170, 1191 (10th Cir. 2018) (internal quotation marks and citations omitted) (outlining the elements of the defense). “The defense . . . is based on fundamental fairness concerns of the Due Process Clause,” United States v. Spires, 79 F.3d 464, 466 (5th Cir. 1996), and thus relies on an assessment of whether the challenged prosecution “offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental,” Patterson v. New York, 432 U.S. 197, 202 (1977) (internal quotation marks and citation omitted), because of the lack of notice and fairness to the charged defendant. The Supreme Court recognized this defense, sometimes called “entrapment by estoppel,” in three cases, Raley v. Ohio, 360 U.S. 423 (1959), Cox v. Louisiana, 379 U.S. 559 (1965), and United States v. Pennsylvania Industrial Chemical Corp. (“PICCO”), 411 U.S. 655 (1973). Examination of these decisions shows first, that entrapment by estoppel is a narrowly tailored defense, available in very limited circumstances, and second, that this defense does not excuse defendant’s conduct in the instant case.

[snip]

[T]his trilogy of cases gives rise to an entrapment by estoppel defense under the Due Process Clause. That defense, however, is far more restricted than the capacious interpretation suggested by defendant, that “[i]f a federal official directs or permits a citizen to perform an act, the federal government cannot punish that act under the Due Process Clause.” Def.’s Mem. at 7. The few courts of appeals decisions to have addressed the reach of this trilogy of cases beyond their facts have distilled the limitations inherent in the facts of Raley, Cox, and PICCO into a fairly restrictive definition of the entrapment by estoppel defense that sets a high bar for defendants seeking to invoke it. Thus, “[t]o win an entrapment-by-estoppel claim, a defendant criminally prosecuted for an offense must prove (1) that a government agent actively misled him about the state of the law defining the offense; (2) that the government agent was responsible for interpreting, administering, or enforcing the law defining the offense; (3) that the defendant actually relied on the agent’s misleading pronouncement in committing the offense; and (4) that the defendant’s reliance was reasonable in light of the identity of the agent, the point of law misrepresented, and the substance of the misrepresentation.” Cox, 906 F.3d at 1191 (internal quotation marks and citations omitted).

The Court need not dally over the particulars of the defense to observe that, as applied generally to charged offenses arising out of the January 6, 2021 assault on the Capitol, an entrapment by estoppel defense is likely to fail. Central to Raley, Cox, and PICCO is the fact that the government actors in question provided relatively narrow misstatements of the law that bore directly on a defendant’s specific conduct. Each case involved either a misunderstanding of the controlling law or an effort by a government actor to answer to complex or ambiguous legal questions defining the scope of prohibited conduct under a given statute. Though the impact of the misrepresentations in these cases was ultimately to “forgive a breach of the criminal laws,” Cox, 379 U.S. at 588 (Clark, J., concurring in part and dissenting in part), none of the statements made by these actors implicated the potential “waiver of law,” or indeed, any intention to encourage the defendants to circumvent the law, that the Cox majority suggested would fall beyond the reach of the entrapment by estoppel defense, id. at 569. Moreover, in all three cases, the government actors’ statements were made in the specific exercise of the powers lawfully entrusted to them, of examining witnesses at Commission hearings, monitoring the location of demonstrations, and issuing technical regulations under a particular statute, respectively.

In contrast, January 6 defendants asserting the entrapment by estoppel defense could not argue that they were at all uncertain as to whether their conduct ran afoul of the criminal law, given the obvious police barricades, police lines, and police orders restricting entry at the Capitol. Rather, they would contend, as defendant does here, that “[t]he former President gave th[e] permission and privilege to the assembled mob on January 6” to violate the law. Def.’s Mem. at 11. The defense would not be premised, as it was in Raley, Cox, and PICCO, on a defendant’s confusion about the state of the law and a government official’s clarifying, if inaccurate, representations. It would instead rely on the premise that a defendant, though aware that his intended conduct was illegal, acted under the belief President Trump had waived the entire corpus of criminal law as it applied to the mob. [my emphasis]

Moreover, the instructions Trump purportedly gave cannot be deemed part of his job. Howell argues that under both the Take Care Clause and the Constitution, Trump cannot sanction illegal or unconstitutional acts.

No American President holds the power to sanction unlawful actions because this would make a farce of the rule of law. Just as the Supreme Court made clear in Cox that no Chief of Police could sanction “murder[] or robbery,” 379 U.S. at 569, notwithstanding this position of authority, no President may unilaterally abrogate criminal laws duly enacted by Congress as they apply to a subgroup of his most vehement supporters. Accepting that premise, even for the limited purpose of immunizing defendant and others similarly situated from criminal liability, would require this Court to accept that the President may prospectively shield whomever he pleases from prosecution simply by advising them that their conduct is lawful, in dereliction of his constitutional obligation to “take Care that the Laws be faithfully executed.”

[snip]

[A] President cannot, within the confines of his constitutional authority, prevent the constitutionally mandated certification of the results of a Presidential Election or encourage others to do so on his behalf, nor can he direct an assault on the coequal Legislative branch of government. Were a President to attempt to condone such conduct, he would act ultra vires and thus without the force of his constitutional authority.

This gets close to the argument I keep making, that a key step Trump took that day (and riled up the mob when it didn’t work) was to give another Constitutional officer, Mike Pence, an unconstitutional order. And I was surprised that Howell didn’t mention pardons, a means by which Trump, at least, has forgiven the illegal obstruction of justice done for his behalf. Similarly, I would expect more focus on the separation of powers.

Still, it’s a framework for responding to what already is a sea of defendants claiming they can’t be held accountable for their crimes because Donald Trump invited or ordered them to commit the crimes. And does so within a broader framework that may provide DC District judges some way to approach the detention challenges with some measure of consistency.

The New Recruits on the Front Line on January 6

In addition to adding six more people to the Oath Keeper conspiracy indictment originally charged against Jessica Watkins, DOJ added some new overt acts. Among others, it added training.

Training and recruitment were always part of Watkins’ alleged actions:

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

On November 9,2020, WATKINS asked a recruit if he could “download an App called Zello” and stated, “We all use Zello though for operations.”

On November 17 , 2020, when a recruit asked WATKINS for her predictions for 2021 , WATKINS replied, among other statements:

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

and:

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

The original indictment also described Donovan Crowl attending a training session in December.

On December 12-13,2020, CROWL attended a training camp in North Carolina.

The superseding indictment adds to these details. It includes descriptions of how 54-year old Graydon Young and his 52-year old sister Laura Steele joined the Oath Keepers.

31. On December 3, 2020, YOUNG emailed the Florida chapter of the Oath Keepers with a membership application and wrote, “looking to get involved in helping. . ..”

33. On December 19, 2020, YOUNG wrote to a Facebook group: “Please check out Oath Keepers as a means to get more involved. Recruiting is under way. DM me if you want more info.”

38. On December 26, 2020, YOUNG wrote an email to a Florida company that conducts training on firearms and combat. YOUNG wrote, in part, “l trained with you not long ago. Since then I have joined Oath Keepers. I recommended your training to the team. To that effect, four of us would like to train with you, specifically in your UTM rifle class.”

52. On January 3, 2021, STEELE emailed the Florida chapter of the Oath Keepers with a membership application and wrote, “My brother, Graydon Young told me to submit my application this route to expedite the process.” Later in the day, STEELE emailed KELLY MEGGS and wrote, “My brother, Graydon Young told me to send the application to you so I can be verified for the Events this coming Tuesday and Wednesday.” The following day, STEELE sent an email to an Oath Keepers address, copying both YOUNG and KELLY MEGGS, attaching her Florida Oath Keepers membership application and vetting form, and writing, “I was just requested to send my documents to this email.”

And the arrest affidavit for the Parkers describe them discussing joining Watkins’ militia because their own had largely dissolved.

On December 27, 2020, Bennie Parker texted Watkins, “I may have to see what it takes to join your militia, ours is about gone.” Also on December 27, 202, Bennie Parker texted Watkins, “Yes and you and Sandi and I are like minded you guy [sic] aren’t that far away . . . . “

Effectively, that means that the organized stack (also included as an overt act in the superseding indictment) included at least three people — Crowl, Steele, Young, and Sandi Parker — who had just joined either Watkins’ militia or the Oath Keepers generally (Bennie, who’s 70, is not known to have entered the Capitol).

For all that it attracted media attention for that organized stack, the Oath Keepers weren’t as instrumental to the launch of the coup attempt as the Proud Boys.

But there, too, the militia was relying on new recruits. Dominic Pezzola claims (not entirely convincingly) that the insurrection was just his second action with the Proud Boys (though his first was the December MAGA March, where he was in close proximity to Roger Stone’s Oath Keeper body guard Robert Minuta).

Of more interest are the details Felicia Konold shared about her experience leading the mob.

She did a Snapchat video gleefully describing how much power she had exercised.

I’m watching the new guys

Fuuuck

Dude, I can’t even put into words. I. I. Never.

I never could [unintelligible] have imagined having that much of an influence on the events that unfolded today.

[Laughs]

Dude, people were willing to follow. You fucking lead, and everyone had my back, due, everyone, fucking wall, legit, in the air, up against the fence, [unintelligible], three lines of police, fence, me, not even on the ground, my feet weren’t even on the ground, all my boys, behind me, holding me up in the air, pushing back.

[Laughs]

We fucking did it.

Her arrest affidavit also quotes her on saying she was, “recruited into a fucking chapter from Kansas City,” complete with a challenge coin. The government’s detention memo for William Chrestman describes that he, “readily recruited two individuals from Arizona [Felicia and her brother Cory] to join the group of Kansas City Proud Boys, who then participated in the crime spree on U.S. Capitol grounds.” (It’s likely the case against Chrestman relies on an FBI interview of Konold, which has not been publicly cited.)

And it didn’t stop there. Experts have talked, abstractly, about how January 6 served as a recruiting boon for right wing terrorists. That’s shown tangibly in a detail from Royce Lamberth’s opinion  Zip Tie Guy Eric Munchel granting the government’s motion for his detention. Even as images from Munchel’s antics in the Senate had attracted close focus and on the same day the government obtained a warrant for his arrest, Zip Tie Guy reached out — via Signal — to the Proud Boys in an effort to join up.

There is also no evidence that Munchel is a member of any violent groups, thought the government has presented evidence that Munchel was in contact with a member of the Proud Boys after January 6 and was interested in joining the group. See Signal Chat Tr. (Jan. 9-10, 2021).

On top of being an explicit attempt to prevent Joe Biden from assuming the presidency, January 6 was also a recruitment bonanza, providing both a goal in advance to work towards, but also a networking opportunity permitting in-person recruitment.

The insurrectionists breached the Capitol with flagpoles and bullhorns. And some of the key players leading that breach were recent recruits to the organized militia leading the way. Meanwhile, Stewart Rhodes, Joe Biggs, and Ethan Nordean were watching from relative safety.

Update: I’ve fixed the Stack numbers; I think Crowl may have been training rather than being trained at the came in North Carolina in December.

Proud Boys “Cell Leader” William Chrestman Says He’s Not Organized Crime, Was Just Acting on Orders

I’m working towards posts on how DOJ is treating the different members of the Proud Boys charged with crimes relating to January 6 and how DOJ’s past history with the group makes their failure to warn about January 6 all the more damning.

But first, I want to look at what William Chrestman’s lawyers said in a memo arguing he should not be detained pre-trial.

As a reminder, Chrestman was charged with conspiring with four other people, all wearing orange tape, both to obstruct the counting of the electoral vote, and to impede law enforcement officers during a civil disorder. Of particular note, Chrestman and those with him physically prevented cops from shutting access to tunnels through which members of Congress had been evacuated.

The government’s detention memo calls Chrestman an “apparent leader of this particular cell” and describes that he recruited two people from Arizona (Felicia Konold, whom charging documents say the FBI interviewed, but from which interview they didn’t quote, and her brother Cory) to take part in the riot.

Defendant Chrestman readily recruited two individuals from Arizona to join the group of Kansas City Proud Boys, who then participated in the crime spree on U.S. Capitol grounds.

As such, the action of a group led by Chrestman directly ensured the ongoing threat to members of Congress, to say nothing of the difficulties they caused police trying to limit the incursion of the rioters.

In the memo, Federal Public Defenders Kirk Redmond and Chekasha Ramsey offered a more extended version of an argument other defendants have made, arguing that Chrestman had good reason to believe not just his actions — but the Proud Boys’ generally — must have been sanctioned by the President. [footnotes below replaced with links]

To prefigure how those offenses relate to the likelihood of Mr. Chrestman succeeding on pretrial release, we must start long before January 6.

It is an astounding thing to imagine storming the United States Capitol with sticks and flags and bear spray, arrayed against armed and highly trained law enforcement. Only someone who thought they had an official endorsement would even attempt such a thing. And a Proud Boy who had been paying attention would very much believe he did. They watched as their “pro-America, pro-capitalism and pro-Trump” rhetorical strategy “allowed the Proud Boys to gain entry into the Republican mainstream.”11 They watched as law enforcement attacked Black Lives Matter and anti-fascism protestors, but escorted Proud Boys and their allies to safety.12 They watched as their leader, Enrique Tarrio, was named Florida state director of Latinos for Trump.13 They watched the Trump campaign, “well aware of the organized participation of Proud Boys rallies merging into Trump events. They don’t care.”14 They watched when then-President Trump, given an opportunity to disavow the Proud Boys, instead told them to “stand back and stand by.”15 They understood that phrase as “a call to arms and preparedness. It suggests that these groups, who are eager to do violence in any case, have the implicit approval of the state.”16 Having seen enough, the Proud Boys (and many others who heard the same message)17 acted on January 6.

Their calculations were wrong. The five weeks since January 6 have broken the fever dream. The Proud Boys are “radioactive now.”18 Any “air of respectability is gone.”19 The Proud Boys are in “disarray, as state chapters disavow the group’s chairman and leaders bicker in public and in private about what direction to take the Proud Boys in.”20 Their leader was arrested, then “outed as a longtime FBI informant, a role he has now admitted to.”21 And not insubstantially, a number of their members have been arrested for their roles in the January 6 attack. [my emphasis]

The filing goes on to quote extensively from impeachment evidence and Mitch McConnell’s post-acquittal statement, reiterating Trump’s central role in all this.

Even before it gets there, though, the memo makes an argument I expect we’ll see more of, one which very much resembles the argument Bill Barr’s DOJ made to diminish prior threats from the Proud Boys.

Third, the government’s evidence is a far cry from what courts have found constitutes sufficient evidence of a serious risk of obstruction justifying detention. Threatening to kill a witness,4 injure a witness,5 or manufacture false evidence6 is the kind of stuff that gets one detained under 18 U.S.C. § 3142(f)(2)(B). More similar to our facts is United States v. Demmler, 523 F.Supp.2d 677 (S.D. Ohio 2007). There, the “Government allege[d] that Demmler talked about enlisting other defendants in the underlying Poulsen case in his and Poulsen’s scheme[.]”7 But whether the defendant “would have followed-up on these musings had he not been arrested, and whether he would do so now, are entirely speculative. It is just as likely, on this record, that Demmler’s arrest on federal charges has chastened, rather than emboldened, him.”8 So too here.

4 United States v. Fontanes-Olivo, 937 F.Supp.2d 198, 201 (D. P.R. 2012) (Authorizing detention based on potential obstruction where defendant told witness that “one of ‘his people,’ could ‘get rid of you’ based on a rumor that the UM was cooperating with authorities.”).

5 United States v. Ploof, 851 F.2d 7, 11 (1st Cir. 1988) (When “defendant, if released, will attempt to injure or intimidate other prospective witnesses (and if the evidence supports said conclusion) then, too, detention is authorized”).

6 United States v. Robertson, 608 F.Supp.2d 89, 92 (D. D.C. 2009) (“Given the extraordinary lengths that these defendants went to in their efforts to tamper with witnesses and manufacture utterly false, misleading evidence at trial—and in light of their proven success in achieving a hung jury in one trial already—this Court ultimately has no choice but to detain these defendants prior to trial.”).

7 Demmler, 523 F.Supp.2d at 683.

8 Id.; See also United States v. Simon, 760 F.Supp. 495 (D. V.I. 1990) (Detention inappropriate even when defendant attempted to speak with a juror in his brother’s murder trial; although “conduct is inexcusable, it is a far cry from the venality, corruption and violence of the sort common in organized-crime cases, designed to destroy the integrity of the criminal justice system.”)

A year ago, Bill Barr’s DOJ said threats from the Proud Boys might “technically” be obstruction, but such a sentencing enhancement, “typically applies in cases involving violent offenses, such as armed robbery.” Almost exactly a year later, Chrestman’s attorneys argue that threats from the Proud Boys and the threat of ongoing Proud Boys action, “is a far cry from the venality, corruption and violence of the sort common in organized-crime cases.”

This passage is far less persuasive than those invoking Trump. After all, Chrestman threatened police he would, “take your fucking ass out,” if they shot protestors, and further incited others to fight back.

Defendant Chrestman stood directly in front of Capitol Police officers who were attempting to guard the Capitol. Defendant Chrestman yelled at the Capitol Police officers, “You shoot and I’ll take your fucking ass out!” At a different point, Capitol Police officers attempted to arrest one person from the crowd, and Defendant Chrestman encouraged other members of the crowd to stop the Capitol Police from arresting him. Among other things, Defendant Chrestman said to other members of the crowd, “Don’t let them take him!”

Particularly backed — as Chrestman was — by mobs of thousands, that threat was every bit as serious as the one Chrestman’s lawyers cite in Fontanes-Olivo. And the Proud Boys have long been considered an organized hate group, so the allusion to organized crime is actually on point.

More importantly, Chrestman’s completed act — the success that he and others had at delaying the count of the electoral count vote — did grave damage to the integrity of our democracy, a point prosecutors made in their detention memo.

The nature and circumstances of the charged offenses weigh heavily in favor of detention. Defendant Chrestman, a member of a right-wing militia, knowingly and willfully participated in a riot that was designed to prevent the United States Congress from certifying the results of the 2020 Presidential election. Not only did Defendant Chrestman participate in the riot, he assumed a leadership role by shouting “Whose house is this?” and encouraging the crowd to “Take it!”

Words alone may never communicate the true nature of the crimes that were carried out on January 6. It is an event that cannot be measured in the number dead, injured, or wounded, but rather in the destabilizing effect that it has had on this country. This destabilizing effect is precisely what Defendant Chrestman envisioned when he decided to travel to the Capitol, helped lead others into the U.S. Capitol, and participated in the Proud Boys’ participation in the riot at the Capitol building.

The problem is that not just Donald Trump but even his Department of Justice (to say nothing of the line law enforcement officers cited by Chrestman’s lawyers) have long minimized the risk fo such a threat.

That said, the fact that Donald Trump got precisely the destabilizing blow to democracy and the terror he wanted is no reason to let Chrestman go free. Instead, Chrestman makes a great argument that Trump should be treated as a co-conspirator.

Mike Lee Provides Key Evidence Implicating Trump in the Existing Criminal Conspiracy

Because Donald Trump’s Personal Injury lawyer, Michael Van der Veen, made a specious argument about the First Amendment to successfully give 43 Republicans cover to vote to acquit the Former President in his impeachment trial, the discussion about Trump’s potential criminal exposure for January 6 (which according to CNN he is concerned about) has largely focused on incitement charges.

That’s true even though the trial led Mike Lee to offer up evidence implicating Trump in the same conspiracy charges already charged against 10 defendants: conspiring to delay Congress’ official proceeding to certify the electoral college vote. As I have noted, DOJ has started mapping out conspiracy charges against both the Oath Keepers and the Proud Boys:

While there are differences in the scope of the conspiracy and overt acts involved, all three charging documents charge defendants with conspiring “to stop, delay, and hinder Congress’ certification of the Electoral College vote,” effectively conspiring to commit 18 USC 1512, tampering with the official procedure of certifying the electoral college vote, an official procedure laid out in the Constitution.

And in spite of their votes to acquit the Former President last night, both Tommy Tuberville and Mike Lee provided evidence that the FBI might use to investigate Trump in that conspiracy. As I noted days after the attack, during the attack, Trump twice attempted to reach out to Tuberville to ask him to delay the count. The second time, Rudy Giuliani even left a message specifically asking for a delay as such, precisely the object of the already charged conspiracy charges.

I know they’re reconvening at 8 tonight, but it … the only strategy we can follow is to object to numerous states and raise issues so that we get ourselves into tomorrow—ideally until the end of tomorrow.

I know McConnell is doing everything he can to rush it, which is kind of a kick in the head because it’s one thing to oppose us, it’s another thing not to give us a fair opportunity to contest it. And he wants to try to get it down to only three states that we contest. But there are 10 states that we contest, not three. So if you could object to every state and, along with a congressman, get a hearing for every state, I know we would delay you a lot, but it would give us the opportunity to get the legislators who are very, very close to pulling their vote, particularly after what McConnell did today. [snip]

Over the last few days, both Tuberville and Lee offered up more details on the earlier call. Tuberville confirmed the content of the call, including that he told the President that his Vice President had been evacuated.

Sen. Tommy Tuberville revealed late Wednesday that he spoke to Donald Trump on Jan. 6, just as a violent mob closed in on the the Senate, and informed the then-president directly that Vice President Mike Pence had just been evacuated from the chamber.

“I said ‘Mr. President, they just took the vice president out, I’ve got to go,’” Tuberville (R-Ala.) told POLITICO on Capitol Hill on Wednesday night, saying he cut the phone call short amid the chaos.

And Lee — who twice demanded that references to this call be removed from the Congressional record — ultimately provided phone records showing that even after Pence had been publicly rushed to safety, Trump was still working on delaying the vote rather than addressing the danger. Trump tweeted about Pence at 2:24, specifically complaining that Pence hadn’t given states a chance to “correct” facts, effectively a complaint that Pence had not disrupted the orderly counting of the vote.

Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!

And then, two minutes later, Trump attempted to call Tuberville and, after Lee turned over his phone to the former coach, spoke to him for four minutes. It matters that Tuberville told Trump about the evacuations, though it is highly unlikely he had not been informed both informally and formally at that point. But it matters just as much that even after the insurrectionists had breached the building, Trump took two overt acts to attempt to delay the vote.

A Trump defense might argue — as his Personal Injury Lawyer did this week — that he was just trying to count the votes, but Trump had already made an unconstitutional request of Mike Pence, something Trump’s team provided no defense for. And that’s before you consider the evidence that Rudy, at least, was in direct contact with James Sullivan, who is affiliated with the group, the Proud Boys, that has already been accused of conspiring to breach the Capitol (indeed, another conspiracy case, against Proud Boys Dominic Pezzola and William Pepe, charges that they conspired to interfere with cops trying to keep protestors out of the Capitol, and the Chrestman indictment also includes that as a separate conspiracy).

I’m not saying this will definitely happen. The bar to charging a Former President remains high.

But DOJ has already charged ten people for doing what Trump was also demonstrably doing that day. And, partly because of Mike Lee’s desperate effort to avoid having the record of him implicating Trump in the congressional record, Lee ended up making the timeline of the events public without the FBI having to breach speech and debate concerns to obtain it. By doing so, Lee made it easier for the FBI to make a case against Trump if they ever attempt to do so.

Mike Lee may have helped prevent Trump from being barred from running for President again. But Mike Lee also made it easier to prosecute Trump for those very same acts.

Update: NYT just posted a story showing that six of the Oath Keepers Roger Stone was palling around with leading up to the attack entered the Capitol on January 6.