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“Civil War Started:” Zach Rehl’s Blow-by-Blow of the Riot

Since Jonathon Moseley has taken over as Zach Rehl’s defense attorney, he has filed a series of really ridiculous motions.

On Friday, according to a filing purporting to argue that Zach Rehl should be released on bail, FBI agents raided Whallon-Wolkind’s home.

Rehl’s attorney, Jonathon Moseley, claimed that because (he said), “Aaron Whallon-Wollkind did not join the events in the District of Columbia on January 6, 2021, whether the peaceful demonstrations or the violent attacks by a very, very few against U.S. Capitol Police … the Government has no basis for investigating or charging Whallon-Wollkind other than his connection to Zachary Rehl” [all three forms of emphasis Moseley’s], which in turn Moseley claimed was proof that the government still did not have any evidence against Rehl.

It’s a colossally stupid argument, almost as stupid as Moseley’s last two filings, in which he admitted that the Proud Boys “‘circle[d]’ (in a rectangle) the region around the Capitol to monitor the risk from counter-demonstrators,” an encirclement plan that had been publicly tied to obstructing the vote count in advance, and then argued that because Ali Alexander, a brown person who took credit for organizing the Stop the Steal rallies, had not been arrested yet, his [white] client should not have been either.

The government responded to these motions in two different filings yesterday. One motion opposed Rehl’s request for a Bill of Particulars, for discovery that (a table in the motion shows) DOJ has already provided, and for a Parler post that DOJ says doesn’t appear to exist. Another motion opposed Rehl’s bid to reopen his pre-trial detention.

The latter basically argues that all the ridiculous gaslighting Moseley is doing has not presented anything that was not known to Rehl when Tim Kelly last denied his motion for bail.

In his motion and the three supplements, the defendant raises no information that was both unknown to him at the time of the original detention litigation before this Court and that would have a material bearing on the detention decision. The Court should accordingly decline to reopen the detention hearing and should deny the defendant’s motion.

Along the way, the motion makes a point I keep making: the Proud Boy leaders keep excusing their actions by claiming some tie to Trump’s speech or a protest, except that they never went to his speech, heading instead to the Capitol to kick off a riot.

The defendant focuses on what the videos show of the Proud Boys’ activity prior to the breach of the Capitol grounds, and it focuses on two videos that were explicitly made for public consumption. The defendant’s reliance on the videos mentioned in the First Supplement moreover ignores the evidence of the conspirators’ coordinated actions immediately prior to, and again after the breach of the First Street barriers. The defendants arrived near the site of the Ellipse—where speeches were to occur—and then immediately marched to the Capitol away from the demonstration. The defendants were not there for a peaceful demonstration; they went to the Capitol to participate in a violent protest.

[snip]

The Court should not accept Rehl’s invitation to conclude that the fact that the Capitol Police issued some permits negates his mens rea. See Mem. at 10-12. The defendant has not proffered that he knew of any permits issued or that he believed he was participating in a permitted demonstration when he rushed past trampled police barriers. If that is the defendant’s subjective memory, he certainly knew that on June 30. But setting that aside, any claim he makes now—for the first time nine months after the riot—that be believed he was participating in a permitted protest should carry no weight in the Court’s analysis, as those claims are belied by the fact that the defendant entered the grounds not at the site of any permitted protest, but through trampled police barriers.

[snip]

The best proof of what defendants planned is what they did—and did not do—on January 6. They did not attend the demonstration at the Ellipse; they marched to the Capitol. And the defendant celebrated the group’s accomplishments and characterized it for what it was—violence and threatened violence to corruptly influence the vote of the American people.

The government motion scoffs at Rehl’s claim to support the cops, noting that a fundraiser Moseley pointed to in a supplement supporting his renewed bail request had been started the day he submitted the filing, and had raised no funds.

The defendant also proffers that he is the son and grandson of police officers and is a longtime supporter of the “back the blue” movement. E.g., Second Supplement at 3. This information, even if true, was known to him at the time of the June 30 hearing, and thus does not provide a reason to reopen the hearing. The fundraiser that the defendant allegedly set up “to raise money for any injured police officers,” see id., is not material to the Court’s detention analysis. According to an ICANN9 lookup, the domain name healcapitolpolice.com was registered on October 6, 2021—the same day that defendant filed the First Supplement referencing that website and the alleged fundraiser. As of October 15, 2021, that website redirects anyone who clicks on it to a GiveSendGo crowdfunding page that states that the campaign has raised $0 and “is currently disabled and can not receive new donations.”

It shows that because of the way Rehl’s lawyer submitted a Reuters article that (I’ve shown) misunderstood the investigation, it cut off a reference to Rehl and his co-conspirators.

The passage Moseley failed to include affirms that FBI had discovered the Proud Boys had a goal of breaking into the Capitol.

Stone, a veteran Republican operative and self-described “dirty trickster”, and Jones, founder of a conspiracy-driven radio show and webcast, are both allies of Trump and had been involved in pro-Trump events in Washington on Jan. 5, the day before the riot.

FBI investigators did find that cells of protesters, including followers of the far-right Oath Keepers and Proud Boys groups, had aimed to break into the Capitol. But they found no evidence that the groups had serious plans about what to do if they made it inside, the sources said.

But the most interesting part of the motion includes citation of multiple texts Rehl sent during the riot, which (the government claims) not only proves that Rehl lied in a previous filing about texting only his spouse from the riot, but shows he was providing a blow-by-blow account of the riot to four other people in which he stated, before Dominic Pezzola broke into the Capitol but after they had surged onto Capitol grounds, that “everyone raided the Capitol.”

In addition to the post-election rhetoric the Court cited in granting the government’s motion to revoke the magistrate’s release order, many of the defendant’s statements from January 6 and 7 underscore the government’s assertion that he possessed a criminal mens rea on January 6. For example, in contrast to defendant’s claim that “gathering at the U.S. Capitol was specifically authorized” by permit (Mem. at ¶ 55), shortly after defendant and his coconspirators had surged onto Capitol grounds, Rehl texted four other contacts, “Everyone raided the Capitol.” At the time that text was sent, 1:15 p.m., the defendant and his coconspirators had pushed into the West Plaza, but they were still approximately 30 minutes from beginning to push up the stairs to the Upper West Terrace. At 1:34 p.m., Rehl texted the same group, “We’re at a standstill, cops are dropping concussion bombs and pepper spraying, people are pepper spraying back and fighting riot cops.” At 2:29 p.m., after hordes of rioters had entered the building, defendant texted the same group, “Civil war started.”4 He followed at 2:48 p.m. with “They just broke all the doors and windows open, people are pouring in.”

The defendant’s statements after January 6 further underscore that the defendant’s focus on that day was not Antifa. On January 7, 2021, he texted the same group mentioned in the previous paragraph, “Trump basically conceded. We lost our country, we shoulda held the capital” and “Once Pence turned his back he was fucked, but was hoping we all sent a message yesterday, I guess that was the message to ben [sic] the knee, its depressing.” In a different Telegram chat on January 7, Rehl stated, “Looking back, it sucked, we shoulda held the capital. After [T]rump conceding today, it all seemed like a waste.” He continued, “The reason why it feels like a waste is because instead of all these politicians getting scared and realizing they need to answer for this fraud, they are all turning on Trump and cucking, they are doubling down on their actions. Everyone shoulda showed up armed and took the country back the right way,” and “I imagine the next time people aren’t showing up unarmed. I’m not trying to fed post, I’m just stating facts, normies turned on the cops man, we didn’t start any of the violence, all we did was a couple of chants.”

4 These text messages stand in contrast to the defendant’s assertion that he only texted his wife to let her know he was safe and that he only knew of the full scale of the attack at the time of the impeachment trial. See First Supplement at 8.

Zach Rehl described the riot on the Capitol that he and his co-conspirators kicked off as a “civil war.” That expresses a mens rea that goes well beyond simply trying to obstruct the vote count.

FBI Searches the Home of the Guy Who Said, “I want to see thousands of normies burn that city to ash” on January 6

I want to see thousands of normies burn that city to ash today — Telegram text from person described as UCC-1, January 6, 2021

According to NYT’s Alan Feuer, the person who participated in the Proud Boy leadership Telegram chat planning for January 6 who was described as “Unindicted Co-Conspirator 1” (UCC-1) in the Proud Boy Leaders indictment is Aaron Whallon-Wolkind, the Vice President of the Philadelphia Chapter of the Proud Boys.

As described in the indictment, in Telegram chats obtained from Nordean’s phone, UCC-1 made a comment on January 4 reflecting an existing plan. And he played a key role in setting up the radio communications that would be used on the day of the riot.

41. On January 4, 2021, at 8:20 p.m., an unindicted co-conspirator (“UCC-1”) posted to New MOSD channel: “We had originally planned on breaking the guys into teams. Let’s start divying them up and getting baofeng channels picked out.”1

42. On January 5, 2021, at 1:23 p.m., a new encrypted messaging channel entitled “Boots on the Ground” was created for communications by Proud Boys members in Washington, DC. In total, over sixty users participated in the Boots on the Ground channel, including D.C. NORDEAN, BIGGS, REHL, DONOHOE, and UCC-1. Shortly after the channel’s creation, BIGGS posted a message to the channel that read: “We are trying to avoid getting into any shit tonight. Tomorrow’s the day” and then “I’m here with rufio and a good group[.]”

[snip]

47. UCC-1 the At 9:09 p.m., broadcast a message to New MOSD and Boots Ground channels that read: “Stand by for the shared baofeng channel and shared zello channel, no Colors, be decentralized and use good judgement until further orders” UCC-1 also wrote, “Rufio is in charge, cops are the primary threat, don’t get caught by them or BLM, don’t get drunk until off the street.” UCC-1 then provided a specific radio frequency of 477.985.

UCC-1 also warned the others not to write their criminal plans in Telegram texts.

Specifically, the person identified in the Superseding Indictment as Unindicted Co-Conspirator (“UCC-1”) advised that participants “[s]houldn’t be typing plans to commit felonies into your phone.” UCC-1 later directed that, “if you’re talkin[g] about playing Minecraft2 you just make sure you don’t use your phone at all or even have it anywhere around you.”

2 Minecraft is a video game. Based on information provided by the FBI, the government understands that it is common for persons discussing criminal activity online to refer to such activity as occurring “in Minecraft” to conceal the true nature of the activity.

The full context of UCC-1’s comment about burning DC to ash includes a comment reflecting his belief that “the state is the enemy of the people” and a response from Person 2 describing that “normiecons” have no adrenaline control, a recognition that shows up elsewhere that the Proud Boys could and did inflame non-Proud Boy members.

DONOHOE: Are you here?

UCC-1: No I started a new job, don’t want to fuck it up yet

DONOHOE: Well fuck man

UCC-1: There will be plenty more I’m sure lol

UCC-1: I want to see thousands of normies burn that city to ash today

Person-2: Would be epic

UCC-1: The state is the enemy of the people

Person-2: We are the people

UCC-1: Fuck yea

Person-3: God let it happen . . . I will settle with seeing them smash some pigs to dust

Person-2: Fuck these commie traitors

Person-3 It’s going to happen. These normiecons have no adrenaline control . . . They are like a pack of wild dogs

DONOHOE: I’m leaving with a crew of about 15 at 0830 to hoof it to the monument no colors

Person-2 Fuck it let them loose

Person-3 I agree . . . They went too far when the [sic] arrested Henry as a scare tactic

A detention memo for Ethan Nordean revealed that UCC-1 was monitoring livestreams and using other methods to track the riot (I’ve written about how useful former Army Captain Gabriel Garcia’s live streams would have been for that purpose; given Whallon-Wolkind’s role in setting the channel for the Baofengs, it’s likely he tracked that too).

When the Defendant, his co-Defendants, and the Proud Boys under the Defendant’s command did, in fact, storm the Capitol grounds, messages on Telegram immediately reflected the event. PERSON-2 announced, “Storming the capital building right now!!” and then “Get there.” UCC-1 immediately followed by posting the message, “Storming the capital building right now!!” four consecutive times.6 These messages reflect that the men involved in the planning understood that the plan included storming the Capitol grounds. This shared understanding of the plan is further reflected in co-Defendant Biggs’ real-time descriptions that “we’ve just taken the Capitol” and “we just stormed the fucking Capitol.”

6 UCC-1 and PERSON-2 are not believed to have been present on the Capitol grounds, but rather indicated that they were monitoring events remotely using livestreams and other methods.

The centrality of UCC-1 in the indictment against the Proud Boy leaders — along with Aram Rostom’s reporting on Whallon-Wolkind’s past efforts to share information on Antifa with the FBI — fed conspiracies about the FBI seeding the entire January 6 riot.

In January 2019, a member of the Philadelphia chapter of the Proud Boys who called himself “Aaron PB” was on a Telegram chat with fellow members to gather information about Antifa, according to leaked chat screenshots whose authenticity was confirmed by a source familiar with the Proud Boys and by a lawyer for Aaron PB. Aaron PB said in a chat that he was gathering “info we want to send our FBI contact.”

A source close to the federal investigation told Reuters that “Aaron PB” is a Philadelphia Proud Boy leader named Aaron Whallon-Wolkind.

Whallon-Wolkind did not respond to phone calls or questions sent via text. Reached by a Reuters reporter, he hung up.

Patrick Trainor, a New Jersey lawyer for Whallon-Wolkind in an unrelated lawsuit, said Whallon-Wolkind and other Philadelphia Proud Boys had talked about inconsequential matters with the FBI over the years. Those contacts did not amount to anything substantive, Trainor said. Trainor represents other Proud Boys as well.

“They’ve all been approached at different times at different rallies in the city of Philadelphia,” he said. “Plainclothes FBI guys wanted to talk to them. You know: ‘We heard this happened. This happened so let’s talk about it.’”

Trainor acknowledged Whallon-Wolkind made the comments about “our FBI contact” on the Telegram chat, but believes they were not meant to be taken seriously. “I think he was just breaking balls,” Trainor said. “I think there was no contact with the FBI.”

In a May Motion for a Bill of Particulars, Ethan Nordean’s attorneys professed to need the identity of UCC-1 because key allegations in the conspiracy were attributed to him.

The government uses the statements of a person identified as “UCC-1” in the FSI to detain Nordean and to establish a conspiracy. The government has not produced evidence identifying this individual.

[snip]

The FSI cites a “UCC-1” who allegedly makes various conspiratorial remarks. FSI, ¶¶ 41, 42, 47. The government has not produced evidence identifying this individual.

But by July 15 (not long before Enrique Tarrio called Zach Rehl’s wife to sound out whether Rehl was flipping), when Judge Tim Kelly asked whether Nordean lawyer Nick Smith still wanted that identity, Smith instead emphasized a greater need for evidence linking Dominic Pezzola to his client. Smith did complain that the Proud Boys were left speculating on the identity of the person, ridiculously suggesting that his client didn’t know the identities of the around six other people with whom he was in a leadership Telegram channel. Smith then noted that there was public information (Rostom’s reporting) that UCC-1 had been a government informant. Prosecutor Luke Jones then confirmed that UCC-1 was not a CHS — that is, a paid informant of the sort that FBI might use to entrap others.

Nevertheless, in July, it appeared that prosecutors had a cooperating witness who could attest to an advance plan to storm the Capitol.

On Friday, according to a filing purporting to argue that Zach Rehl should be released on bail, FBI agents raided Whallon-Wolkind’s home.

Rehl’s attorney, Jonathon Moseley, claimed that because (he said), “Aaron Whallon-Wollkind did not join the events in the District of Columbia on January 6, 2021, whether the peaceful demonstrations or the violent attacks by a very, very few against U.S. Capitol Police … the Government has no basis for investigating or charging Whallon-Wollkind other than his connection to Zachary Rehl” [all three forms of emphasis Moseley’s], which in turn Moseley claimed was proof that the government still did not have any evidence against Rehl.

It’s a colossally stupid argument, almost as stupid as Moseley’s last two filings, in which he admitted that the Proud Boys “‘circle[d]’ (in a rectangle) the region around the Capitol to monitor the risk from counter-demonstrators,” an encirclement plan that had been publicly tied to obstructing the vote count in advance, and then argued that because Ali Alexander, a brown person who took credit for organizing the Stop the Steal rallies, had not been arrested yet, his [white] client should not have been either.

In the guise of arguing that a warrant that Judge Kelly likely knew about — if not authorized — in advance did not substantiate probable cause, Moseley laid out anything a co-conspirator might want to know about the raid of one of another co-conspirator, including the date of the search, the items listed in the warrant, the crimes under investigation, the items seized, and Whallon-Wolkind’s [wise] refusal to answer questions without an attorney present.

Before dawn on the morning of Friday, October 8, 2021, approximately 20 law enforcement agents heavily armed and wearing riot police gear, raided the home rented by Aaron Whallon-Wollkind near the Pennsylvania border. Aaron was awakened to threats, commands, and intimidation from an extremely loud loud-speaker (far more powerful than a hand-held bullhorn) ordering him to come out of his rural house with his hands up. He walked out of the door to find his girlfriend already handcuffed outdoors without any pants being guarded by the riot-gear wearing FBI agents.

On his lawn he found an armored personnel carrier which he understands to be a “Bear Cat.” The tank-like armored personnel carrier and other vehicles had torn up his lawn. There was also a roughly 15 foot long battering ram mounted on a vehicle. They were apparently all agents of the Federal Bureau of Investigation or at least led by the FBI with supporting officers.

[snip]

In the pre-dawn of Friday, October 8, 2021, Whallon-Wollkind was also handcuffed and held outside while the agents ransacked his house along with his half-naked girlfriend. After some of the roughly 20 agents had searched his house inside, some of the agents brought Whallon-Wollkind back inside where they had moved a single chair in the middle of a room like an interrogation scene from a war movie. They sat him down and began to interrogate him. He told them that he refused to say anything without the advice of an attorney.

The FBI took all of his computer and computer devices and phones, including an old broken phone.

However, Whallon-Wollkind was not arrested or charged.

[snip]

They had staked out his house and taken photographs. The only thing they did not already have is evidence of Zachary Rehl planning, organizing, or leading a poorly-defined “Stop the Steal protest” which Ari [sic] Alexander takes credit for being the National Organizer of. Counsel has reviewed the search warrant and documents given to Whallon-Wollkind yesterday morning, which was sent by text message from his girlfriend.

Counsel understands that when freely given to Wollkind and his girlfriend, the documents lost their sealed character. The paperwork was freely provided to Wollkind and his girlfriend at their house, with no instructions that any restrictions applied to them. There is nothing in the search warrant that orders anything with regard to the person whose property is being searched. We are not talking about the underlying affidavit, which was not provided and remains under seal. But the deprivation of Zachary Rehl’s liberty, being incarcerated for months of his life he will never get back, for things he did not do, outweighs any interest of the Government in continuing to perpetuate a baseless conspiracy theory against Zachary Rehl.

The search warrant is authorized to be executed by October 14, 2021, corresponding to the motions schedule for the next hearing of this Court.

The search warrant was issued on either October 1, 2021, or October 4, 2021 (the text message version is blurry).

[snip]

The SUBJECT OFFENSES are the same criminal charges for which Zachary Rehl was indicted in the First Superseding Indictment. The items to be searched and seized include:

a. Clothing items associating AARON WOLKIND with the Proud Boys organization, as described in the affidavit in support of the search warrant application.

* * *

d. Records and information relating to the identification of persons who either (i) collaborated, conspired or assisted (knowingly or unknowingly) the commission of the SUBJECT OFFENSES; or (ii) communicated about matters relating to the SUBJECT OFFENSES, including records that help reveal their whereabouts.

* * *

f. Records and information … any efforts to or questions about the legitimacy of the 2020 Presidential election, the certification process of the 2020 Presidential Election, or otherwise influence the policy or composition of the United States government by intimidation or coercion.

* * *

h. Records and information relating to the state of mind of the subjects and/or co-conspirators, e.g. intent, absence of mistake….

Moseley makes much of the fact that the FBI had correctly identified in which judicial district Whallon-Wolkind’s house is located, which he says is in a rural area close to the PA border, as well as that the FBI had a serial number and type for Whallon-Wolkind’s smart phone.

Indeed, while counsel is not revealing the judicial district where the search warrant was issued, where Wollkind resides, and where the search warrant was executed, the FBI would have to already know everything imaginable about Wollkind in order to apply to the correct judicial district, which is not what one would expect, and to include (thankfully, to avoid misunderstandings and mistakes) three photographs of Wollkind’s rented house. Thus, the FBI did not need to learn about Wollkind. They wanted to scrounge around for evidence against Rehl that they still do not have. The FBI already knew the precise type and serial number of the smart phone used by Wollkind.

It’s as if this attorney has never seen a probable cause warrant affidavit before, which describe both these things to establish probable cause for the warrant.

Moseley’s conspiracy theory is that the FBI obtained this warrant between the time Rehl first renewed his bid for pretrial release and days before the time there’ll be a status hearing exclusively to obtain evidence to use to prove what the DC Circuit Court has already said is adequate basis to detain Rehl’s co-conspirators.

Perhaps the most interesting detail in this filing, however, is a stray sentence that seems to indicate that Whallon-Wolkind may have traveled to DC in January after the riot.

Aaron Whallon-Wollkind never travelled to the District of Columbia until after the protests were over.

Whatever else Moseley argues, this filing comes after months in which his client’s alleged co-conspirators have suggested that Whallon-Wolkind either was cued by the FBI to incite the entire riot with really incriminating statements (which Jones effectively denied) or had only avoided charges for those far more damning statements because he was cooperating. That is, for months, other Proud Boys have argued that Whallon-Wolkind’s statements were badly incriminating. Now Moseley wants the judge who has been hearing that for months (Moseley repeatedly states that this investigation has been going on ten months rather than nine) to believe there’s nothing incriminating about Whallon-Wolkind’s actions leading up to and during the riot.

If Whallon-Wolkind had been cooperating before — presumably under a proffer agreement that would have prohibited the government from using his statements against him so long as they were honest — it appears that cooperation has ceased. Or perhaps the government has gotten more useful cooperators who’ve implicated Whallon-Wolkind more deeply in the planning for that day.

Whatever the reason, the FBI has recently shifted its focus to the guy who expressed his desire on the morning of the insurrection that there would be an insurrection.

Zach Rehl’s Subpoena for Port-a-John Details from the Non-Existent One Nation Under God

The fourth defendant in the Proud Boy Leader indictment, Zach Rehl, has finally made an aggressive appearance in the docket.

How he got here is a matter of significant interest — and some dispute. On September 9, Aram Rostom (who keeps getting these great scoops), reported that Enrique Tarrio released a recording in July reassuring everyone that Rehl would not flip. “If there’s anyone that will hold fast, it’s fucking Zach.”

In the July audio, a copy of which was reviewed by Reuters, Tarrio said that “we are trying to f—ing avoid” a situation in which the senior members facing charges would cooperate with prosecutors. The four, who are jailed without bond, have pleaded not guilty.

Raising the possibility that one of the four leaders may have been cooperating with authorities, Tarrio told fellow Proud Boy leadership he didn’t believe that the man was doing so – and said he had spoken about the matter directly with that leader’s wife.

“The bigger problem with that is the guys that are in prison right now are holding on to hope that everybody is f—ing staying put because they didn’t do anything wrong,” Tarrio said. “The moment that they think one of the guys flipped, it throws everything off and it makes everybody turn on each other, and that’s what we are trying to f—ing avoid.”

When the message leaked, Tarrio released another recording saying that it’s hard enough to fight the government without having to fight, “not just a regular felony, like a serious felony.”

“You know it’s hard enough to fight a f—ing entire government…,” Tarrio said in the Aug. 27 message, “to have to worry about dudes in here f—ing putting you in felony territory. Not just regular felony, like a serious felony.”

On September 19, Ethan Nordean included the following allegations in a filing, noting that in August (so after Tarrio called Rehl’s wife), Rehl had asked Judge Amit Mehta for help firing his attorney, citing what sound like real complaints with his representation. Nordean went on, describing an incident in which prosecutor Seth Jones met with Rehl outside the presence of his counsel and threatened Rehl with transfer to DC if he didn’t flip.

In the bail hearing on September 13, counsel to Defendant Biggs alerted the Court to information concerning the government’s attempts to transfer Defendant Rehl to the D.C. jail. Specifically, Biggs’ counsel advised that the government’s attorneys may have threatened to transfer Rehl to D.C. from a Philadelphia jail if he did not agree to cooperate with the government against the other Defendants. Counsel have subsequently gathered additional information about this episode. It significantly bears on Nordean’s and Biggs’ pending bail motions in several respects. These matters should be investigated by the Court, as it appears that the government’s constitutional violations here are not limited to the improper withholding of exculpatory material beyond the point at which Defendants may make timely use of it. Counsel are working on obtaining sworn declarations for the Court but advise it here about what they have learned in the meantime.

On August 13, Defendant Rehl mailed a letter to the Court. Exh. 1. He was writing from his cell in FDC Philadelphia. Rehl formally requested that he be allowed to terminate his thencounsel, “effective immediately, due to ineffective counsel.” Among other reasons given, Rehl noted that his counsel was taking actions on his behalf without his knowledge and ignoring virtually all requests to discuss the case. “In five months, I have met with [counsel] once in the middle of May for approximately 30 minutes,” Rehl wrote. Exh. 1. As this letter was never filed on the docket, it is not clear when the government became aware of it. However, as inmate nonlegal mail is reviewed, particularly in a case such as this, there is a presumption that the government gained knowledge of the letter at some point.

Sometime after he mailed that message to the Court, Rehl was removed from his cell by federal agents, likely U.S. Marshals. Rehl did not know where he was being taken. The agents told him he was headed to a court appearance. That was not true. Rehl was then moved through an underground tunnel to what appeared to be the Philadelphia federal courthouse. He was then steered not to a courtroom but to an office. There he was greeted by assistant U.S. Attorney Luke Jones. Rehl apparently waited with the government’s prosecutor, without counsel present, for approximately an hour and a half. At that point, an individual who works in the office of Rehl’s former counsel appeared. Rehl had never retained this person to be his counsel and knew her only as an assistant to his former lawyer.3 At that point, AUSA Jones began to converse with Rehl about this case. It is our understanding that Rehl’s retained counsel was not then present. Neither was an FBI agent, according to those in the room.

Among other matters, AUSA Jones apparently told Rehl that if he did not cooperate with the government, he would likely be transferred from FDC Philadelphia to the D.C. jail, where he would not be able to see his wife and child, at least until after his “conviction.”4 It is our understanding that when Rehl said there was nothing to cooperate about, AUSA Jones responded that, in that case, Rehl could “wear a wire” when talking to others. Rehl’s then-counsel arrived much later—approximately three hours behind schedule. At that point the lawyers agreed to continue the meeting to the following day.

So unusual were these proceedings that the Marshals who transported Rehl back to the jail expressed their concern to him about his apparent total lack of legal representation. “Did you know that interview was going to happen? Did your lawyer set that up for you?” When jail staff returned to Rehl’s cell the next day, he refused to meet with AUSA Jones again. [link added]

Nordean made all this public based on a claim that this meant the government was holding them — last I checked, in Florida and Washington — because they wanted Rehl to wear a wire on them.

In response, Jones said the claims were bullshit and inappropriate for Biggs and Nordean to raise in any case.

The allegations of government misconduct are false. It would be improper for the government to address these allegations with counsel for defendants Nordean or Biggs, neither of whom represent defendant Rehl, or to address them further in a public filing. Defendant Rehl is represented by counsel, with whom the government has conferred regarding these allegations.

Contrary to defendant Nordean’s suggestion (ECF No. 174 at 4-7), the allegations have no bearing on his or defendant Biggs’ pending motions to reopen bail hearings. Moreover, the allegations are spurious and should not be countenenced by the Court.

At the most recent hearing, prosecutors attributed the earlier delay on moving Rehl to detention motions and said the Marshals were responsible for the decision to move him. Who knows who is telling the truth, but Judge Tim Kelly agreed that it really is irrelevant to Biggs and Nordean’s bids to get out of jail. He also had a separate hearing where Rehl informed him that Jonathon Moseley is now representing him and he’s quite happy with the relationship thus far.

That’s how we got here, to Rehl’s second substantive motion, in which Moseley moved to request for a subpoena for information on the permits authorizing the Wild Protest rally at the location advertised on the East side of the Capitol. Or, if he can’t get that, he wants policies on port-a-johns because (the motion shows) there were port-a-johns where the rally advertisement said a rally would be held.

ZACHARY REHL, by counsel, requests the issuance of a subpoena to the U.S. Capitol Police, c/o Thomas Manger, [new] Chief of Police and/or Custodian of Records, for

(1) Any and all documents relating in any way to any application for —

(2) Any and all documents relating in any way to —

(3) Any and all documents relating in any way to the denial of —

(4) Any and all documents relating in any way to any revocation of — any permit to demonstrate or assemble on the grounds of the U.S. Capitol, especially in the Northeast corner of the grounds across 2nd Street, NE from the U.S. Supreme Court, on January 6, 2021, or for any time period including January 6, 2021. Or:

(5) Any and all documents relating in any way to the placement of temporary toilets (commonly described as porta-potties) on the grounds of the U.S. Capitol, in the Northeast corner of the grounds across 2nd Street, NE from the U.S. Supreme Court, on January 6, 2021, or for any time period including January 6, 2021. (Please do not confuse the facilities set up on the other side of the Capitol very far away for assembly of stands for the inauguration on January 20, 2021, which could not explain the porta-potties across Second Street from the U.S. Supreme Court.)

(6) Any and all documents relating in any way to general policies and procedures at any time concerning restrictions on the placement of equipment such as porta-potties on the grass of the U.S. Capitol grounds (i) without a permit or (ii) without the employment of contractors approved by the U.S. Capitol Police to do the work.

There’s a lot of word games about how what the indictment really alleges (the object of the conspiracy notwithstanding) is that Rehl conspired to argue in favor of the Electoral College.

15. Indeed, the First Superseding Indictment alleges that:

36. On December 23, 2020, REHL posted on social media describing January 6, 2021, Congress gets to argue the legitimacy of the [E]lectoral [C]ollege votes, and as “the day where yes, there will be a big rally on that day.”

16. Thus, the grand jury by indictment and the prosecution assisting in the drafting of the indictment admits and confesses that REHL’s goal was to get Congress “to argue the legitimacy of the [E]lectoral [C]ollege votes, and – for THAT purpose ” yes, there will be a big rally on that day.”

17. The government admits and confesses within the four corners of the indictment that the goal of the alleged “conspiracy” (which would require a criminal goal) was to get Congress “to argue the legitimacy of the [E]lectoral [C]ollege votes,” and not to stop, obstruct, delay or hinder the Electoral College certification.

18. The government admits and confesses within the four corners of the indictment that the goal of the alleged “conspiracy” was to demand that Congress do not just half of its job but all of its job in certifying the Electoral College vote.

19. Congress plainly could not “argue” the “legitimacy” of the Electoral College votes IF CONGRESS WERE NOT IN SESSION.

But the request itself, for proof that the underlying protest was permitted, is a reasonable basis to try to argue he didn’t plan to prevent the peaceful transfer of power that day.

The problem for Rehl — and the reason this move may backfire — is that the permits are already public and they likely say far more than Rehl wants them to say; BuzzFeed liberated them (in a fairly historic bit of Jason Leopold and Jeffrey Light FOIA magic).

The documents show that when Capitol Police received the permit application for the specific port-a-john location that Rehl wants to subpoena, an officer responding to the permits judged that the application was an attempt to hide the role of Stop the Steal in the rally.

On Dec. 21, 2020, a group called One Nation Under God filed an application with the Capitol Police’s special events section to stage a protest over “election fraud in swing states” at the Senate East Front grassy area on Jan. 6 between 9 a.m. and 6 p.m.

The officer who reviewed the application noticed some irregularities. For one thing, the officer wrote in an intelligence assessment, “One Nation Under God is not an organization and does not maintain social media accounts or webpages.” For another, one of the people listed as a confirmed speaker was Alexander, a leader of Stop the Steal, which was planning a major rally at Freedom Plaza that same day.

A screenshot of the text from the documents

Obtained via Capitol Police

“I explained,” the officer wrote, “that it appears that the Stop the Steal and the One Nation Under God is one in the same due to the similarities and the affiliation with Ali Alexander.” In an email on Dec. 31, 2020, another officer mentioned concerns about the approval of “certain permits,” specifically that “the permit requests … are being used as proxies for Stop the Steal” and “may also be involved with organizations that may be planning trouble.”

The officer did some follow up only to find that the guy who applied for the permit couldn’t answer basic questions about the event.

The permit application listed Nathan Martin of Shelby, Ohio, as a representative of One Nation Under God. According to the documents, a Capitol Police officer spoke with him on Dec. 28, 2020. The officer’s notes suggest that Martin was not forthcoming about the group’s plans.

A screenshot of the application from One Nation Under God

Obtained via Capitol Police

A permit application listing Nathan Martin as the contact for One Nation Under God

“I inquired if he has any additional information he could give me for the event. Mr. Martin said there are a few events that they have going on and he does not know which one I was referring,” the officer wrote. “When I asked about the ‘few events’, he stated that the events were in the hotels.”

And when BuzzFeed called Martin, he admitted the tie between the group on the permit and Stop the Steal — effectively confirming that One Nation was a front for Stop the Steal.

Brown, who did not respond to emails and phone calls requesting comment, told the officer Martin “is associated with Stop the Steal and travels with Ali Alexander.” Martin “does not seem to have an official title but he deals with the daily operations to include hotel books and car rentals.”

[snip]

In an interview with BuzzFeed News, Martin acknowledged his affiliation with the two groups but said he could not explain what One Nation Under God’s mission was, how it was formed, and for what purpose. He said he had not seen the permit, could not explain why his name was on it, and was unaware that the demonstration had been capped at 50 people.

The permit also says the purpose of the demonstration is “demonstration for election fraud in swing states,” which doesn’t sound particularly legal. And BuzzFeed learned that the sound equipment (which Alex Jones may have used to lure bodies to the East side of the Capitol) was never used.

Now maybe Rehl knows all this. Maybe this is what he thinks he’ll get. He first started pursuing this subpoena on September 11, two days after BuzzFeed released these records. So maybe the proof that the Capitol Police approved this permit even after recognizing it was all just a front is what he’s after.

But effectively what he’s doing is soliciting records that show Stop the Steal, with which the Proud Boys seem to have coordinated, engaged in a kind of fraud on the Capitol Police to obtain more permits and spread out their obviously false claim that each protest would only have 50 participants.

Effectively, he risks opening up a whole big can of fraud exposure for any co-conspirators, and any reliance the Proud Boys made on having this permit (and the port-a-johns) to legitimize their mob rests on the shell games that Ali Alexander’s people were playing.

Update: Rehl didn’t know about the BuzzFeed liberation, but neither did he credit me for informing him when he learned of it (the third time the Proud Boy leaders have not credited my reporting in their filings).

4. However, in response to the filing of counsel’s Motion, a news blog noticed the Motion and commented on it, and the blog entry was forwarded to me as counsel.

5. It seems that BUZZFEED filed suit for this information and the permits were released to the public on September 9, 2021. The documents produced are attached hereto.

The admission that he didn’t know that the permits had been liberated (and therefore didn’t know that they show Ali Alexander playing a shell game to obtain permits) may be why his attorney wants to get a good look at these permits for “demonstration for election fraud in swing states” before he relies on them for a new bid to be released.

THEREFORE, the Motion may be moot and counsel asks the Court to delay any consideration of the Motion until counsel can decipher these documents and determine if anything further is still needed.

The FBI’s Proud Boy Informant Showed Up Late

The Proud Boys charged with the most serious assaults on January 6 — including (at a minimum) Dan “Milkshake” Scott and Christopher Worrell — are not charged with conspiracy, though both could easily have been included as co-conspirators. Nor is Ryan Samsel, who is not known to be a Proud Boy but spoke to Joe Biggs just before he kicked off the entire riot by allegedly knocking over a cop and giving her a concussion (this may change, especially since, after a long delay, DOJ charged Samsel individually in an indictment that, either via the assignment wheel or because it was identified as a case related to the Proud Boys leadership indictment, got assigned to Judge Tim Kelly). While Dominic Pezzola is charged with assault for stealing the riot shield he used to break into the Capitol and Billy Chrestman is charged with threatening to assault a cop, their co-defendants are not implicated in those assaults, except insofar as they are overt acts in a conspiracy.

That’s why I find this detail from NYT’s blockbuster report on what a Proud Boy informant who showed up late to the January 6 riot and then entered the Capitol has told the FBI about the investigation rather interesting.

At the same time, the new information is likely to complicate the government’s efforts to prove the high-profile conspiracy charges it has brought against several members of the Proud Boys.

On Jan. 6, and for months after, the records show, the informant, who was affiliated with a Midwest chapter of the Proud Boys, denied that the group intended to use violence that day.

[snip]

On the eve of the attack, the records show, the informant said that the group had no plans to engage in violence the next day except to defend itself from potential assaults from leftist activists — a narrative the Proud Boys have often used to excuse their own violent behavior.

The government has never accused the Proud Boy conspirators of planning to use violence themselves, though there is evidence they knew their incitement could spark violence among “normies.” There’s even evidence that Ethan Nordean tried to rein in one attack (though only after he had presumably witnessed other assaults on cops).

That is, that claim is utterly irrelevant to the government’s conspiracy cases against the Proud Boys.

And yet the NYT offered it as one reason this informant’s report might, “complicate the government’s efforts to prove the high-profile conspiracy charges it has brought against several members of the Proud Boys.”

To be sure, there is one way this informant might undermine the existing conspiracy charges.

The informant’s interview reports affirmatively claim that he knew of no plans to storm the Capitol, nor did he hear any talk of the electoral college certification in his travels that day.

In lengthy interviews, the records say, he also denied that the extremist organization planned in advance to storm the Capitol.

[snip]

But statements from the informant appear to counter the government’s assertion that the Proud Boys organized for an offensive assault on the Capitol intended to stop the peaceful transition from Mr. Trump to Mr. Biden.

On the eve of the attack, the records show, the informant said that the group had no plans to engage in violence the next day except to defend itself from potential assaults from leftist activists — a narrative the Proud Boys have often used to excuse their own violent behavior.

Then, during an interview in April, the informant again told his handlers that Proud Boys leaders gave explicit orders to maintain a defensive posture on Jan. 6. At another point in the interview, he said that he never heard any discussion that day about stopping the Electoral College process.

The records show that, after driving to Washington and checking into an Airbnb in Virginia on Jan. 5, the informant spent most of Jan. 6 with other Proud Boys, including some who have been charged in the attack. While the informant mentioned seeing Proud Boys leaders that day, like Ethan Nordean, who has also been charged, there is no indication that he was directly involved with any Proud Boys in leadership positions.

In a detailed account of his activities contained in the records, the informant, who was part of a group chat of other Proud Boys, described meeting up with scores of men from chapters around the country at 10 a.m. on Jan. 6 at the Washington Monument and eventually marching to the Capitol. He said that when he arrived, throngs of people were already streaming past the first barrier outside the building, which, he later learned, was taken down by one of his Proud Boy acquaintances and a young woman with him. [my emphasis]

This guy’s testimony absolutely poses a challenge to prosecutors prosecuting the Proud Boys this guy was actually interacting with.

That said, the NYT does not say whether he was interacting with those charged with conspiracy or even obstruction (still-active Proud Boys, like Jeremy Grace, have been charged only with trespassing). Even if he was interacting with people charged with conspiracy, the fact that he showed up late and (claimed that he) did not know that some of his own acquaintances were going to breach the barriers until after the fact would, at most, show that he wasn’t privy to the plans of lower level cells.

But the way in which DOJ has charged the Proud Boy side of the conspiracies is with one leadership conspiracy, and four subconspiracies that are effectively cells that allegedly worked together to achieve smaller objectives: to breach the West door, to breach the North door, and to keep the Visitor Center gates open (the NYT misses one of the charged Proud Boy conspiracies, against the Klein brothers, for opening a North door to the building, which has acquired more tactical import with the charging of Ben Martin).

Two main things matter to the viability of the larger Proud Boys conspiracy: First, whether the four charged in the leadership conspiracy did have an advance plan. And second, whether their conspiracy interlocks with the Dominic Pezzola conspiracy that ended up breaching the front door of the Capitol and with it exposed Pezzola, his co-conspirators, and by association, the Proud Boy leaders to terrorism enhancements.

The second point is one that the Proud Boy leaders are contesting aggressively. We have yet to see evidence proving a tie between those two conspiracies. But we also have yet to see any evidence from the December rally at which the ties to Pezzola appear to have been forged. Meanwhile, William Pepe is disclaiming knowing the others, suggesting a possible weakness in that conspiracy charge.

As to the first, what we’ve seen in public evidence is that, in the wake of the Enrique Tarrio arrest on January 4, the four leaders attempted to regroup, and then, on the night before the riot, Joe Biggs and Ethan Nordean met with unnamed people and finalized a plan in seeming coordination with Tarrio, and avoided speaking of it even on their limited leadership Telegram chat.

On January 4, when Tarrio arrived in DC for the riot, he was arrested for his attack on the Black Church in December, whereupon he was found with weapons that are unlawful in DC. In the wake of Tarrio’s arrest, Ethan Nordean was supposed to be in charge of the operation. But around 9:08PM the day before the riot (these texts reflect Nordean’s Washington state time zone, so add three hours), someone said he had not heard from Nordean in hours.

Minutes later, Biggs explained that “we just had a meeting w[i]th a lot of guys” and “info should be coming out.” While redacted in these texts, the superseding indictment describes that he also notes he had just spoken with Tarrio.

He further explained that he was with Nordean and “we have a plan.”

Biggs then says he gave Tarrio a plan.

Ethan Nordean may have been in charge on January 6. But Biggs seems to have been the one working most closely with Tarrio, through whom at least some of the inter-militia coordination worked.

There’s little question they had a plan to do something (and that that plan did not include attending the Trump rally which was the primary innocent reason for Trump supporters to show up to DC that day). The question is what kind of evidence DOJ has substantiating that plan, especially after claimed efforts to flip Zach Rehl collapsed. (Nordean has also said he’ll move to suppress these texts because his spouse consented to the breach of his phone, which led FBI to obtain them, but it’s likely the FBI has a second set of the texts in any case.)

But it also is likely the case that the place to look for that evidence is not with a low-level Proud Boy who showed up late to insurrection, but with the others with whom Nordean and Biggs were meeting the night before the riot. And there’s no indication that these people were all Proud Boys, and in fact good reason to suspect they weren’t.

In the weeks before the riot, Kelly Meggs repeatedly talked about a Florida-based intra-militia alliance.

In the days after both the DC even[t] and an event involving Stone in Florida, Oath Keeper Kelly Meggs claimed he organized a Florida-based “alliance” between the Oath Keepers, Proud Boys, and 3%ers.

On Christmas Eve, Meggs specifically tied protection at the January rally, probably of Stone, and coordination with a Proud Boy, almost certainly Tarrio, in the same text.

And in the days after, the Southern California 3%ers laid out a Stop the Steal affiliated plan to surround the Capitol.

Spread the word to other CALIFORNIA Patriots to join us as we March into the Capitol Jan 6. The Plan right now is to meet up at two occasions and locations: 1. Jan 5th 2pm at the Supreme Court steps for a rally. (Myself, Alan, [and others] will be speaking) 2. Jan 6th early 7am meet in front of the Kimpton George Hotel…we will leave at 7:30am sharp and March (15 mins) to the Capital [sic] to meet up with the stop the steal organization and surround the capital. [sic] There will be speakers there and we will be part of the large effort for the “Wild Rally” that Trump has asked us all to be part of. [my emphasis]

Not only is this what happened on January 6, but Joe Biggs seemed to know that key Stop the Steal figures, including his former employer Alex Jones, would open up a second front of this attack and arrived to take part in it, entering the Capitol a second time virtually in tandem with the Meggs-led Stack.

This is one reason I keep presenting all these conspiracies together: because there’s good reason the Proud Boy conspiracies don’t just intersect with each other, but that the Proud Boy conspiracies intersect, in the person of Joe Biggs and others, with each other.

There are many reasons that the report of an FBI handler not understanding that his or her Proud Boy informant was describing the breach of the Capitol as it happened is important.

After meeting his fellow Proud Boys at the Washington Monument that morning, the informant described his path to the Capitol grounds where he saw barriers knocked down and Trump supporters streaming into the building, the records show. At one point, his handler appeared not to grasp that the building had been breached, the records show, and asked the informant to keep him in the loop — especially if there was any violence.

But, except to limited degree to which his testimony affects the case against the Proud Boys with whom he actually interacted, this report primarily provides yet more proof that the FBI, trained by Billy Barr not to investigate any subjects Trump claimed as his own tribe, had no conception of what they were looking at on January 6, not even as the Proud Boys led an attack on the Capitol.

The government has not yet publicly shown all of its evidence that the Proud Boy leaders, alone or in concert with other militias and Stop the Steal organizers, had a plan to attack the Capitol on January 6. Unless something disrupts the case, we won’t see that until next summer.

But one thing we know from the available evidence is that low-level Proud Boys who showed up late to insurrection are not the place to look for that plan.

What Eliel Rosa Saw at the Precise Moment Ethan Nordean Was Not Seeing Officers Open the Upper West Terrace Door

Yesterday, Eliel Rosa pled guilty to a misdemeanor charge of trespassing, even as his co-defendant, Jenny Cudd (the woman who famously got permission to fly on a pre-arranged trip to Mexico), continued to fight to get the obstruction count both were charged with dismissed as part of her own plea. (Rosa, who is a Brazilian citizen, faces a significant risk of deportation upon sentencing.)

Within an hour of that time, Ethan Nordean filed a motion to de-designate two 40-minute lengths of video designated highly sensitive so he can publicly release it. Nordean is trying to get video of something he didn’t witness personally released, showing that at 2:33PM on January 6, four minutes before Nordean entered the Upper West Terrace door at 2:37, two cops there opened the door and then, three minutes before he entered the door, one of those cops held the door open for an insurrectionist.

Second Upper West Terrace Video. This clip is 40 minutes in length, running from 2:20 p.m. Eastern Time on January 6 to 3:00 p.m. The video is from the same camera responsible for the First Upper West Terrace Video. Except, unlike in the shorter First Upper West Terrace Video, at 2:33 p.m., just a few minutes before Nordean enters the building, two police officers open the doors leading from the entry hallway into the Capitol Building. One officer holds the door open as the first protestor enters the building through the Upper West Terrace Door at 2:34 p.m. At 2:35 p.m., two minutes before the clip begins in the First Upper West Terrace Video, a police officer holds a conversation with a line of protestors. Then the officer permits them to enter the building.

Nordean also wants to get a video showing that, one minute before he entered through that door,  a cop propped the door open, and then, seven minutes after he went through the door, cops let a far bigger mob of people in.

[L]ess than a minute before Nordean enters the door, a police officer props the door open and moves a box out of the way of protestors entering the building. At 2:43 p.m., a time also outside the scope of the First Upper West Terrace Door Video, a group of officers large enough to block the narrow door to the Capitol Building confer with one another, as the line of protestors calmly waiting to enter grows outside. At 2:44:18 p.m., one of the officers appears to hear something in an earpiece. He then places his hand on the shoulder of a second officer who is speaking to the protestors and leans in to say something to him. The group of officers then permit more protestors to enter the building.

None of these things show up in the clips Nordean has been given, and none of these things would have been visible to Nordean in the minute during which he entered the building after assembling a violent mob to get to the door in the first place.

First Upper West Terrace Video. This clip is exactly one minute in length, running from 2:37 p.m. Eastern Time on January 6, to 2:38 p.m. Eastern Time. It depicts Nordean passing through a Capitol Building entryway hall. Two law enforcement officers stand aside as Nordean and others proceed into the building.

First Upper West Terrace Door Video. This clip is also exactly one minute in length, running from 2:37 p.m. Eastern Time on January 6, to 2:38 p.m. Eastern Time. However, this video is from a camera facing the door through which Nordean entered the Capitol Building before passing through the hall seen in the First Upper West Terrace Video. No law enforcement officers can be seen in this one-minute clip.

Don’t get me wrong: eventually, those 40-minute videos should come out, along with explanations of why those cops did what they did and whether they’re among the cops who were suspended for investigation after the insurrection. But the videos don’t help Nordean prove that, when he crossed into the Capitol from a terrace that was already well inside the restricted area that day, when he entered backed by thousands of men — many violent — that he had a key role in assembling, he knew what had happened four minutes earlier or what would happen seven minutes later. The only way he would have known what happened four minutes earlier and what would happen seven minutes later at the moment he himself crossed the threshold is if those cops were collaborators that he knew would open the door before the insurrection started.

If that’s the argument Nordean wants to make to get these videos released, by all means I’d love to hear it.

As I said, within an hour of the time that Nordean filing posted to PACER, Eliel Rosa was pleading guilty. He didn’t read his allocution during the plea, but it has been posted since. And it shows another coincidence in the lives of Ethan Nordean and Eliel Rosa. On January 6, Rosa was approaching the Capitol at the same time as Nordean was. And what he saw and heard is that people with bullhorns — like Nordean had — were shouting “Go, Go, Go,” as police set off pepper spray in an effort to hold them back. Rosa, who entered the Capitol just as it was opened (meaning the video Nordean wants would be helpful to Rosa and may be why Rosa got to plead to a misdemeanor) and two minutes before Nordean, knew that the police didn’t want him or the people yelling through the bullhorns to get people to move toward that door, because the cops were deploying pepper spray to get them to fall back.

10. On January 6, 2021, prior to 2:35 p.m., Eliel Rosa and Jenny Cudd approached the United States Capitol from the West.

11. In front of them, Mr. Rosa observed a large group of individuals shouting and Mr. Rosa heard people with megaphones shouting, “Go, Go, Go.” Mr. Rosa heard bangs and acknowledged the smell and presence of pepper spray that had been deployed. Because of these observations, he knew law enforcement was present and in front of the advancing group.

12. At approximately 2:35 p.m., Eliel Rosa and Jenny Cudd walked into the U.S. Capitol through the Upper West Terrace Door.

Mind you, Rosa is not the only misdemeanor plea that would include such evidence about what Nordean would have been seeing at the moment he was not seeing cops leave the door. By the time Nordean would go to trial there’d be a big handful of such statements of the offense, one after another January 6 defendant who knew, well before they entered the Capitol building, that they were not welcome in the building.

But even while Nordean’s alleged co-conspirator Zack Rehl seems to be getting chatty with prosecutors, Nordean is filing motions that would be most helpful if he wanted to prove he knew [hypothetically–I’m not arguing he did] there’d be collaborator cops waiting at that specific door of the Capitol, but otherwise would be useless to show what Nordean knew or saw when he crossed into the Capitol. Particularly as the government begins to collect sworn allocutions from people like Rosa making it clear what Nordean would have seen before he got to that door.


Update: In response to this motion, the government delivered the video in question to Judge Tim Kelly so he could see — the government contends — how Nordean misrepresented the video.

The Government’s Opposition to Defendant Nordean’s Motion for Removal of Sensitivity Designation (ECF 129) will be filed separately; however, the Government found it necessary to provide an immediate response to Defendant’s characterization of rioters’ entrance to the Capitol. The Government disputes Defendant Nordean’s characterization of the events surrounding Nordean’s unlawful entrance into the Capitol. Among other things, the surveillance footage does not “show[] a law enforcement officer authorizing Nordean’s entrance.” (ECF 113). Likewise, the footage does not show a police officer “prop[ping] the door open and mov[ing] a box out of the way of protestors entering the building.” (ECF 129) (emphasis added). The video depicts outnumbered Capitol Police officers being overrun by rioters unlawfully breaching a Capitol entrance.

And then Nordean’s attorneys responded, providing a new description of the video in question, one that adds a detail they didn’t include the first time: that the cops in question were already dealing with insurrectionists inside the building.

Perhaps most damning, consider the following clips, in tandem, in weighing the truth of the government’s claim to the public that the videos it will not release show “outnumbered Capitol Police officers being overrun by rioters unlawfully breaching a Capitol entrance.” ECF No. 103, p. 1. Nordean asks the Court to first review 2:33:18 p.m. in 126 USC 01 Upper West Terrace – 2021-01-06 _14h20min00s0000ms.asf; and then 2:33:42 p.m. in 0912 USCS 01 Upper West Terrace Door-2021-01-06_14h20min00s000ms.asf. In the first clip, police officers open an inner door to the Capitol, allowing protestors who are already in the building to enter a hallway leading to the Upper West Terrace Door. Seconds later, in the second clip, the protestors then open the Upper West Terrace Door to dozens or perhaps hundreds of protestors. With respect to the government’s claim of officers being “overrun,” and its claim that Nordean “falsely” represents that the videos show officers “authorizing” entry into the Capitol Building, Nordean asks the Court to view 2:37:28 p.m. in 126 USC 01 Upper West Terrace – 2021-01-06 _14h37min00s0000ms.asf, showing Nordean and others peacefully walking between multiple police officers who permit them to enter. It also asks the Court to view 2:44:00 p.m. to 2:44:30 p.m. in 0912 USCS 01 Upper West Terrace Door-2021-01-06_14h20min00s000ms.asf, in which police officers easily block a narrow entrance to the Capitol at the Upper West Terrace Door but then subsequently decide to permit protestors, who are not “overrunning” them, to enter. [my emphasis]

That description of the other rioters didn’t appear in their original description. It changes the meaning of it, because it offers other plausible explanations why cops at one post let rioters in as they were facing down rioters already in the building.

Again, I look forward to one day seeing videos showing what Ethan Nordean had no way of seeing before he entered the building. But thus far, Ethan Nordean has proven that Ethan Nordean provided an incomplete description of videos that depict what Ethan Nordean could not have seen happen just before he entered the Capitol.

It bears noting that Nordean’s larger argument, likening this dispute to one that was resolved in favor of John Anderson hours before Nordean’s own filing, resulting in the release of video that showed Anderson, is inapt and probably designed to impress gullible reporters or maybe complicit Congressmen like Paul Gosar. Nordean is pointing to the release of video that shows a defendant to argue for release of video that doesn’t show Nordean.

Update: Let me restate what Nordean is trying to argue.

By the time he got to the West Terrace door, he had passed at least three barricades. At each, he witnessed assaults, including — the first one — an assault that hospitalized a cop. In one of those cases, he reined in Christopher Quaglin, but Quaglin’s actions were still part of the collective action that allowed Nordean to even get to the West Terrace door. Nordean is trying to argue that, if at one of four barriers he passed to enter the Capitol, no cop was hospitalized as rioters passed, it’s proof he had no way of knowing he wasn’t welcome inside.

Proud Boy UCC-1’s Work Ethic Saved Him from a Felony Charge

The other day the government released Powerpoint presentations (Zach Rehl, Charles Donohoe) from detention hearings for the two Proud Boys, as well as the Telegram chats one or the other side used as part of those detention disputes. (The times on the chats are UTC-8, probably because they came from Ethan Nordean’s phone after it was seized in Washington; add three hours to get the time in DC.)

January 4 5:17 to 5:42PM

January 4 5:50 to 7:06PM

January 5 8:58PM to January 6 12:03AM

January 6 1:00 to 4:07PM

January 30 to February 1, Nordean and Donohoe

In general, the texts show how, in the wake of Enrique Tarrio’s arrest on January 4, Donohoe took the lead in attempting to set up two new Telegram chats — New MOSD, with just a few leaders, and Boots on the Ground, with around 60 Proud Boys (not all of whom were present, it seems) — so the Feds wouldn’t have access to their organizational efforts via Tarrio’s phone, which they correctly assumed the government had seized (though it’s not clear when the phone was exploited). The Proud Boys struggled to figure out what to do with Tarrio, with Donohoe seemingly warning not to add Tarrio back into a chat until they had confirmed he was free and using an uncompromised phone, to prevent the FBI from logging on under Tarrio’s credentials.

They seem to know that Tarrio also spoke with someone outside their circle about his flag-burning, and considered warning that person. They interspersed that conversation with discussions about how to get more Proud Boys to the riot, perhaps picking them up in Philadelphia or Greensboro. For several hours, Donohoe kept adding names, begging for help, explaining what he was doing as he went.

Because of the time crunch, Donohoe added everyone as Admins (I’m not familiar enough with Telegram to understand potential repercussions of that, with regards to FBI’s ability to get more of these chats as they arrested more Proud Boys).

On January 5, their communication plans were still in flux, with one apparent cell leader — who, on account of the redaction, appears not to have been arrested yet — communicating with his cell separately.

Nordean was supposed to be in charge, but he was AWOL for several hours leading up to 9PM (rather interesting hours on January 5 to be unreachable).

There are texts about adding someone to the MOSD leadership channel that might be consistent with Tarrio rejoining the chats after his release (the government redacted his name in some places but not all of them).

Whether or not they added Tarrio to the thread, Biggs — who was with the AWOL Nordean — seems to have been in contact with Tarrio.

Great swaths of the texts from January 6 — almost 10 full pages — are redacted. What’s left are seemingly one after another Proud Boy (not all present) claiming to be storming the Capitol right at 1:02 PM.

At 3:38 PM Donohoe says the Proud Boys will regroup, only to express shock that Trump[‘s Administration] would call out the National Guard against rioters.

The exhibits with just texts are actually far more redacted than the Donohoe Powerpoint — the latter of which includes damning details like Donohoe acknowledging, in advance, that they could face gang charges.

In addition, in the Donohoe Powerpoint, the government lays out a discussion from after the insurrection where someone — perhaps Biggs — expresses some kind of regret, something to make Donohoe push back.

REHL: Ah shit forgot you [Biggs] had to roll, was hoping to have some celebratory beers with yall after this epic fuckin day, I’ll drink one for ya

BIGGS: We will one day. This day lives in infamy or [sic] the ages

DONOHOE: Yeah I feel like a complete warrior. . . .I stood on that front line the entire time and pushed it twice . . . Thank God we were not wearing colors . . . We should never wear colors ever again for any event . . . Only for meetups . . .

[Approximately 12 Minute Gap with No Messages in Message Thread]

DONOHOE: Stop right there . . . All of what you said doesn’t matter . . . We stormed the capitol unarmed . . . And took it over unarmed . . . The people are fucking done . . . Wait when joe biden tells us we are all criminls [sic] [emphasis original]

The gap is interesting, however, because every Telegram text involving Nordean from the key days amounted to a deleted attachment to a text.

We know Nordean would text, though, because he did later in January, when he and Donohoe were discussing Nordean’s plan for a temporary move to North Carolina.

Note, if texts involving Nordean were deleted, they may not be deleted in phones seized from other participants.

Which leads me an obscure detail revealed in that Powerpoint that nevertheless explains something that has been out there for some time: the logic behind an unindicted Proud Boy co-conspirator’s status.

By March 1, prosecutors had details about all these Telegram texts. Yet in a detention hearing for Nordean on March 3, they backed off providing proof, leading to claims that prosecutors had gotten over their skis on Nordean’s prosecution. But the government rolled out the texts themselves — as well as the existence of an unindicted co-conspirator, referred to as UCC-1, in the Proud Boy Leadership conspiracy indictment on March 15. In a sealed filing before unsealing the indictment, the government had asked Judge Tim Kelly to hide all that until Rehl and Donohoe could be arrested. At the time, it seemed that UCC-1 was the likely source for the Telegram texts.

It turns out that was wrong, however. At a hearing on May 4, Nordean’s attorney Nick Smith revealed that the government had obtained all the texts from Nordean’s phone, a password for which his wife shared with the FBI (which explains the time zone and may explain why Nordean’s content was deleted when his that of co-conspirators was not).

Texts from early on January 6, not replicated (or left redacted) in the full exhibits explain that UCC-1 was not at the insurrection because he had just gotten a new job that he didn’t want to fuck up, yet.

DONOHOE: Are you here? …

UCC-1: No I started a new job, don’t want to fuck it up yet

DONOHOE: Well fuck man

UCC-1: There will be plenty more I’m sure lol

UCC-1: I want to see thousands of normies burn that city to ash today

Person-2: Would be epic

UCC-1: The state is the enemy of the people

That provides a ready explanation for why DOJ might seek to get UCC-1 to cooperate: he wasn’t present, and any role had had in decision-making leading up to the insurrection pales in comparison to Tarrio’s role. Plus, maybe he was telling the truth about trying to keep that new job. As soon as investigators saw why this guy didn’t show, they would understand a motive he might have to cooperate.

If that’s right, that not only would provide a direct witness to these leadership chats, but it might provide an even fuller set of Telegram chats than what the charged co-conspirators know about.

DOJ’s Curious Militia Math

The government has responded to Ethan Nordean’s claim that texts that confirmed he was a recognized leader in the Proud Boys were exculpatory. In a filing that lays out more of how the Proud Boys responded — first with glee, then with cover stories, then with plans to regroup — to the events of January 6, DOJ includes a curious paragraph describing Enrique Tarrio establishing a very hierarchical upper leadership of the militia.

On December 29, 2020, the Proud Boys Chairman announced the leadership and structure of the Ministry of Self-Defense. The leadership and structure included an “upper tier leadership” of six people, which included Proud Boys Chairman, Nordean, Biggs, and Rehl. Later that evening, Donohoe explained the structure with reference to the upcoming trip to Washington, D.C. Among other things, Donohoe explained that the MOSD was a “special chapter” within the organization. The “special chapter” was not to have any interaction with other Proud Boys attending the event.

Other Proud Boys attending the event were to coordinate with their own chapters and “do whatever you guys want.”1

The filing goes on to describe the statements of, “one member (“Person-1”) of the upper tier leadership” and “another member of MOSD leadership (Person-2).” In addition, it describes the comments of our old friend UCC-1, an unindicted co-conspirator, clearly distinguishing that person’s legal risk from the others.

When UCC-1 was first introduced in the indictment against the Proud Boys Leadership, it was implied that both he and Charles Donohoe were also in the leadership MOSD, and described the total membership as the four indicted defendants plus “a handful of additional members.”

39. On after Chairman’s January 4, 2021, shortly after Proud Boys Chairman’s arrest pursuant to a warrant issued by D.C. Superior Court, DONOHOE expressed concern that encrypted communications that involved Proud Boys Chairman would be compromised when law enforcement examined Proud Boys Chairmans’ phone. DONOHOE then created a new channel on the encrypted messaging application, entitled, “New MOSD,” and took steps to destroy or “nuke” the earlier channel. After its creation, the “New MOSD” channel included NORDEAN, BIGGS, REHL, DONOHOE, and a handful of additional members.

40. On January 2021, at 7:15 p.m., DONOHOE posted a message on various encrypted messaging channels, including New MOSD, which read, “Hey have been instructed and listen to me real good! There is no planning of any sorts. I need to be put into whatever new thing is created. Everything is compromised and we can be looking at Gang charges.” DONOHOE then wrote, “Stop everything immediately” and then “This comes from the top.”

41. On January 4, 2021, at 8:20 p.m., an unindicted co-conspirator (“UCC-1”) posted to New MOSD channel: “We had originally planned on breaking the guys into teams. Let’s start divying them up and getting baofeng channels picked out.”

Perhaps it’s because I’m what one of Nordean’s buddies calls a “purple haired faggot,” and so can’t understand Tarrio hierarchical logic. But by my math, these two filings suggest the MOSD leadership looks like this:

  1. Enrique Tarrio (who correctly anticipated he’d be arrested in advance of the insurrection)
  2. UCC-1
  3. Joe Biggs
  4. Ethan Nordean
  5. Zach Rehl
  6. Person 1
  7. Person 2

One-two-three-four-five-six-seven. Not six, seven. And that’s assuming Donohoe is not part of the group, though the indictment had suggested he was.

Whether UCC-1 is in or out of that leadership group is a key distinction. The government has a presumed informant who said some of the most inflammatory things in advance of the insurrection:

UCC-1: I want to see thousands of normies burn that city to ash today

UCC-1: The state is the enemy of the people

If this person was an active informant for the FBI going in — as an Aram Rostom story suggests — it means someone at the FBI lost control of their informant and rather than punishing the informant for participating in an insurrection and not informing the FBI about it, it is giving the person a pass. It would mean that because this person had made accusations to feed Billy Barr’s demand for dirt on Antifa, he is getting a pass on insurrection.

But if this informant provided the FBI some kind of warning, then it means the Bureau failed, badly, because the FBI has claimed that it had no warning of events of the day, not even with multiple Proud Boys in its informant ranks, including, possibly, one with top level access.

Not to mention the fact, if this guy had the access some of these filings suggest, it raises real questions about why the FBI still doesn’t know precisely how the operation rolled out.

David Headley and Tamerlan Tsarnaev demonstrate that one way to plan a terrorist attack without the FBI seeing it is to serve as an informant. And if the Proud Boys managed to carry out fairly complex planning for an insurrection because so many of them were trading information on Antifa, it would mean FBI’s handing of informants, plus DOJ’s commitment, from the very top, to prioritize Antifa at the expense of right wing militia, were key ingredients to the success of January 6.

DOJ Got All the Proud Boy Telegram Texts from Ethan Nordean’s Phone

Judge Tim Kelly just wrapped up a status hearing with three of the four Leadership Proud Boy conspiracy defendants: Ethan Nordean, Joe Biggs, and Charles Donohoe (Zach Rehl’s attorney is still arranging her appearance before the DC court).

A really important detail came out about the Telegram texts that have been central to the conspiracy case against the defendants: According to Nordean’s attorney Nick Smith, they call came from Nordean’s phone.

He said that, in part, to anticipate some of the challenges he’ll make to the evidence. First, he’s going to claim the search was illegal and move to suppress it based off a ruling that the government has dropped that theory of crime (that won’t work under Fourth Amendment precedents, but you have to try).

More importantly, he said the government had gotten into the phone — rather than be forced to crack it, as they are doing with everyone else’s phone — because Nordean’s wife gave the FBI the passcode.

It had seemed like someone listed as Unindicted Co-Conspirator 1 may have shared them with the government. That person says some pretty damning things in the chats.

39. On after Chairman’s January 4, 2021, shortly after Proud Boys Chairman’s arrest pursuant to a warrant issued by D.C. Superior Court, DONOHOE expressed concern that encrypted communications that involved Proud Boys Chairman would be compromised when law enforcement examined Proud Boys Chairmans’ phone. DONOHOE then created a new channel on the encrypted messaging application, entitled, “New MOSD,” and took steps to destroy or “nuke” the earlier channel. After its creation, the “New MOSD” channel included NORDEAN, BIGGS, REHL, DONOHOE, and a handful of additional members.

40. On January 4, 2021, at 7:15 p.m., DONOHOE posted a message on various encrypted messaging channels, including New MOSD, which read, “Hey have been instructed and listen to me real good! There is no planning of any sorts. I need to be put into whatever new thing is created. Everything is compromised and we can be looking at Gang charges.” DONOHOE then wrote, “Stop everything immediately” and then “This comes from the top.”

41. On January 4, 2021, at 8:20 p.m., an unindicted co-conspirator (“UCC-1”) posted to New MOSD channel: “We had originally planned on breaking the guys into teams. Let’s start divying them up and getting baofeng channels picked out.”

42. On January 5, 2021, at 1:23 p.m., a new encrypted messaging channel entitled “Boots on the Ground” was created for communications by Proud Boys members in Washington, D.C. In total, over sixty users participated in the Boots on the Ground channel, including NORDEAN, BIGGS, REHL, DONOHOE, and UCC-1.

That, in turn, had led to speculation, and in no way just from me, that UCC1 had already flipped on his buddies and was cooperating.

What was said today appears to be inconsistent with that. Indeed, it seems all the talk of four informants from the Proud Boys working with the FBI mostly pertained to helping Attorney General Billy Barr gin up claims against Antifa, and not (yet, at least) informing on each other.

In Adding Matthew Greene to a Conspiracy with Dominic Pezzola, DOJ Formally Alleges the Proud Boys Committed a Crime of Terrorism

At a detention hearing for Charles Donohoe yesterday, Magistrate Judge Michael Harvey asked a long series of questions, including what a “normie” is, what Telegram is (it is stunning that a DC Magistrate doesn’t know that, but that’s a testament they won’t accept US legal process), and whether “Milkshake,” who had been described saying a lot of really damning things in an organizational channel, was part of the conspiracy. AUSA Jason McCullough said that DOJ is still assessing Milkshake’s — whose real name is Daniel Lyons Scott — criminal liability, but since he was filmed fighting with some cops, I’d be arranging legal representation if I were him.

Along the way, however, the questions led McCullough to provide several new details on the Proud Boy conspiracy. One question he didn’t answer is whether the government knows that Donohoe succeeding in “nuking” some texts describing organizational efforts, as he described wanting to do after Enrique Tarrio got arrested.

McCullough also revealed something that was not yet public: the government had rounded up another Proud Boy, Matthew Greene, and indicted him in what I call the Proud Boy “Front Door” conspiracy along with Dominic Pezzola and William Pepe. In doing so, they did something more important for their larger case. First, they changed the purpose of the conspiracy from what it was originally charged to match all the other militia conspiracies (from busting through the first door to obstructing the vote count). Here’s what the militia conspiracies currently look like as a result:

It was probably fairly urgent for DOJ to do this (and Greene’s inclusion may have been just a convenient rationale). Here’s how the indictment changed from the original Indictment to the Superseding one (S1):

In general, the government is charging Pepe and now Greene with more than they originally charged Pepe with based on a theory that they abetted Pezzola’s alleged crimes. But the critical change is highlighted. Originally (marked in pink), just Pezzola was charged for breaking the window through which the initial breach of the Capitol happened. But in this indictment (marked in yellow), DOJ charges Pepe and Greene for abetting Pezzola in breaking that window.

The reason they did this is because 18 USC 1361 is the crime for which DOJ is arguing that all key Proud Boy defendants can be detained pre-trial, not just Pezzola, but also Joe Biggs, Ethan Nordean, Zach Rehl, and Charles Donohoe. In detention hearings, the government has argued that it counts not just as a crime of violence that allows the government to argue that a defendant is eligible for detention, but also that, because it was done to coerce the conduct of government, it triggers a terrorism designation for detention purposes.

This is how the argument looks in detention memos:

As it did before, the United States moves for detention pursuant to 18 U.S.C. § 3142(e)(3)(C), which provides a rebuttable presumption in favor of detention for an enumerated list of crimes, including Destruction of Property in violation of 18 U.S.C. § 1361. The United States also seeks detention pursuant to 18 U.S.C. § 3142(f)(1)(A), because Destruction of Property, in violation of 18 U.S.C. § 1361, is a crime of violence. Moreover, when Destruction of Property is “calculated to influence or affect the conduct of government by intimidation or coercion,” it also qualifies as a federal crime of terrorism. See 18 U.S.C. § 2332b(g)(5)(B).

This was an issue in the Monday detention hearing before Judge Tim Kelly for Biggs and Nordean. After the hearing, he required the government to submit a picture of Pezzola breaking that window.

And it will likely become an issue when Joe Biggs, at least, appeals his detention, as he noticed he would do yesterday (it would be a still bigger issue in Nordean or Donohoe’s case).

In fact, the government has been making this argument for some time.

But it wasn’t until this supserseding indictment that the government formally aligned Pezzola’s actions — including spectacularly breaking that first window with a riot shield — with the rest of the Proud Boy indictments, in fact making them (as the government has already argued) the same conspiracy, a conspiracy involving terrorism.