Trials of Insurrectionists are Not Simply an American Thing

Looking backwards to an imaginary past to justify a fascist future

While Donald Trump is defending himself in a NY courtroom (with other pre-trial battles being fought in other courtrooms), and while hundreds of January 6th insurrectionists sit in prison serving their sentences after their trials, and while other “Stop the Steal” related indictments move toward their own courtrooms, and while SCOTUS Justice Samuel Alito blames his wife for flying a US flag upside down for several days in the immediate aftermath of the January 6th insurrection, news of other trials of accused insurrectionists comes in from Deutsche Welle:

The most high-profile of three trials linked to a far-right coup plot begins on Tuesday in a newly erected courtroom on the outskirts of Frankfurt. The defendants are alleged to be the 10 ringleaders of a group led by German aristocrat Heinrich XIII Prince Reuss, and stand accused of preparing to commit high treason and of membership in a terrorist organization.

All the suspects, part of the so-called “Reichsbürger” movement, were allegedly plotting to overthrow the German government. They were allegedly planning to storm the German parliament and detain prominent politicians, including Chancellor Olaf Scholz, Foreign Minister Annalena Baerbock and conservative opposition leader Friedrich Merz.

The Reichsbürger, or “citizens of the Reich,” reject Germany’s postwar state, claiming it was installed and controlled by the Allied powers who won World War II.

[snip]

The alleged military arm of this group has been facing court in Stuttgart since April 29. A further eight suspected members of the alleged association will have to stand trial in Munich from June 18 . . .

There’s more at the link, but a lot of it sounds disturbingly familiar:

  • Weapons: in raids during December 2022, “more than 380 firearms were confiscated, along with almost 150,000 pieces of ammunition.”
  • Support in the national parliament: “Birgit Malsack-Winkemann, a judge and former representative of the far-right Alternative for Germany (AfD) party in the federal parliament, the Bundestag, . . . was allegedly to become justice minister after the coup.”
  • Dream of support within the military
  • Fantastic conspiracy theories about the deep state: “The prosecution has alleged that Reuss and his supporters believe that a “deep state” runs Germany and was planning to murder hundreds of children and teenagers. The group apparently believed the floods in Germany’s Ahr Valley in 2021 were an attempt to cover up murders already committed by flooding old government bunkers. Among Reuss’ supporters, there was talk of 600 dead children.”
  • Anger at COVID restrictions and plans to kidnap political leaders
  • Ties to Russia and plans for a future alliance.

The Guardian makes the parallels even more clear in their distillation of the 621 page indictment:

On trial are the group’s alleged ringleader, a self-styled aristocrat estate agent known as Prince Heinrich XIII, his Russian girlfriend, and seven other founding members including a former policeman and a former judge who is now an MP for the far-right AfD party.

According to federal prosecutors, the group planned to storm the Reichstag in Berlin with armed support via its paramilitary wing, to arrest members of the Bundestag, and to parade a shackled Olaf Scholz on German television in the hope and expectation of winning ordinary Germans around to their coup.

Call me crazy, but that sounds like a group of the January 6th plotters, doesn’t it?

Could it have worked? That’s apparently not a high possibility, but they were certainly heavily invested in making it happen:

Police say the group had amassed more than half a million euros in gold and cash, as well as hundreds of firearms, tens of thousands of rounds of ammunition and explosives. They had acquired satellite phones to stay in touch after the paramilitary wing had carried out plans to cut off the national communications networks and electricity.

The group had waited for “day X” to start the coup, with one believing the signal was the death of Queen Elizabeth II. When police stormed the house of one member, he shot at them, injuring two police officers.

Sophie Schönberger, an expert in constitutional law at Heinrich Heine University in Düsseldorf, and co-author of the book Reichsbürger, said: “The chances of such a putsch actually succeeding were not all that high, but it could have unleashed a considerable level of violence and was capable of sending shock waves through the system.”

CNN did an explainer of the Reichsbürger in March 2023, which included this:

Werner Patzelt, a political scientist and former professor at TU Dresden, believes the Reichsbürger is less of a “movement” but rather “a loosely coupled network of political stupids who believe that, or at least behave as if, the Federal Republic of Germany does not exist.”

“They claim that Germany is still an occupied country under US control, or a business enterprise registered in Frankfurt,” he told CNN.

“From such fictitious ‘facts’ they derive both a ‘right’ not to pay taxes and penalties, or to establish ‘provisional political authorities.’

“Much of this is operetta-like. In some cases, however, criminal energy goes hand in hand with political nonsense, leading to attacks on financial or police officers.”

Followers refuse to cooperate with the German state in a number of ways including not paying taxes or choosing to print their own currency and identity cards.

Tobias Ginsburg is a German journalist who reported undercover on Germany’s far-right scene.

“You meet people there of all walks of life,” Ginsburg said. “I met the stereotypes, but also normal people, the dentist from downtown, someone working with the tax revenue service, just normal people. Some had no idea what they had entered.”

What we are fighting in the US is not specific to the US. Whether these groups are coordinated (Russia, anyone?) or simply people in both countries being filled with nationalist gingoism, hatred and fear of The Other(s), and nostalgic views of a triumphant history that never was, those who dream fascist fantasies and work to bring them to life are alive and well around the world.

What bmaz says about the Trump trials here is true about the Reichsbürger trials in Germany. In and of themselves, these trials are not “magic bullets” that will immaculately solve the problems presented by these folks. “We tried them, found them guilty, and now everything is peachy keen” is no way to declare an insurrection over. While the trials are necessary part of addressing these problems, true solutions need to go much deeper and need to address the attractiveness of the AfD in Germany and the MAGA wing of the GOP in the US.

DOJ Accuses Donald Trump of Asking for Special Treatment Even His Seditionists Didn’t Get

You’ve no doubt heard about the spat over whether Donald Trump’s DC trial should be televised (which court rules pretty much prohibit). Judge Chutkan allowed the parties to weigh in a media request to film the trial.

DOJ, after claiming to consult with Trump, filed an 18-page opposition, citing case law, but focusing especially on witness intimidation.

Paired with the ever-increasing acrimony in public discourse, witnesses and others who appear on video may be subjected to threats and harassment. Were there an appeal and retrial, witnesses who were subjected to scrutiny and harassment on social media may be unwilling to testify again. Even the knowledge that their images will circulate on social media may temper a witness’s initial testimony.

Trump responded, demanding a televised trial, with one of the most bombastic filings he has submitted.

After obtaining permission, DOJ replied, again focusing on witness tampering. It notes that he’s asking for special treatment.

Instead, decrying the alleged unfairness of the unequivocal and constitutionally-sound broadcast prohibition that has governed federal criminal trials—no matter the defendant—for decades, the defendant’s response is a transparent effort to demand special treatment, try his case in the courtroom of public opinion, and turn his trial into a media event.

But they also situated Trump among similar defendants — noting, for example, that fraud defendants like to continue their con inside the courtroom.

He desires instead to create a carnival atmosphere from which he hopes to profit by distracting, like many fraud defendants try to do, from the charges against him.

More interesting still are the high profile trials to which DOJ likens this one: All those of terrorists.

Indeed, the defendant ignores that high-profile federal criminal trials have long proceeded in accordance with the broadcast prohibition under the rules—and that they have garnered significant and detailed media coverage of courtroom proceedings nonetheless. See United States v. Tsarnaev, 595 U.S. 302, 313 (2022); United States v. Moussaoui, 205 F.R.D. 183, 184 (E.D. Va. 2002); United States v. McVeigh, 931 F. Supp. 753 (D. Colo. 1996). This has remained true in the context of trials related to the January 6, 2021 attack on the United States Capitol, including on seditious conspiracy charges. See, e.g., United States v. Rhodes, 610 F. Supp. 3d 29 (D.D.C. 2022); United States v. Nordean, 579 F. Supp. 3d 28 (D.D.C. 2021). The comprehensive, often minuteby-minute, public reporting on courtroom hearings in this case provides further evidence that the defendant’s desired “sunlight” need not come from eschewing the rules.

To be sure, Tsarnaev, Moussaoui, and McVeigh are direct precedents on access to the courtroom, as are those of Stewart Rhodes and Trump’s own Proud Boys.

But DOJ could have addressed the high profile trials of Roger Stone or Scooter Libby — the criminals Trump already pardoned, rather than the seditionists he promised to in a second term.

Fraudsters and seditionists. Those are Trump’s peers.

Zelenskyy wasn’t the First Ukrainian President to Address a Joint Meeting of Congress

Viktor Yushchenko addresses a Joint Meeting of the US Congress, 2005 (White House photo by David Bohrer)

On April 5, 2005, the JFK Library welcomed the recipient of their annual Profile in Courage Award, Viktor Yushchenko. Senator Ted Kennedy opened his brief remarks at the ceremony by saying this:

In “Profiles in Courage,” President Kennedy wrote: “A man does what he must – in spite of personal consequences, in spite of obstacles and dangers and pressures – and that is the basis of all human morality.” Our honoree this evening vividly embodies my brother’s words, and is renowned throughout the world for his extraordinary courage.

As we all know, at a critical moment in his nation’s history, he took a strong and courageous stand for what he knew was right. He risked his life – and nearly lost it – in the ongoing struggle for democracy in Ukraine. His story is the story of honor, decency, and the will of the people triumphing over fraud, deceit and intimidation. And because of his great courage, the rule of law prevailed against the oppressive rule of the powerful over the powerless.

In 1993, Yushchenko became head of Ukraine’s national bank, but 8 years later he was dismissed because his push for reforms made him too popular with ordinary Ukrainians. Again from Ted Kennedy:

Refusing to be silenced, he became the head of a political party and helped create a bloc of reform parties called “Our Ukraine,” which won a plurality of seats in the parliamentary elections of 2002 and became a significant force in the legislature.

As the presidential election approached in 2004, it was obvious that he appealed to Ukrainian citizens in ways no other politician could. His popularity was higher than any others because he had the ability to relate to people’s lives, and was so clearly seeking public office for the public good, not private gain.

These qualities endeared him to the people, but made him a special threat to the corrupt leaders of the regime in power. Nothing – not even a vicious attempt to poison him – could break his spirit and prevent him from speaking out against corruption and for a democracy grounded firmly in the rule of law.

[snip]

State-owned media shamelessly opposed him, and independent media were subjected to violence and intimidation in a largely successful effort to silence their support.

Opposition rallies faced constant harassment. Government employees, factory workers and students were threatened with dismissal unless they opposed him. President Putin of Russia openly intervened by declaring his support for the government candidate and sending a team of his top political advisers to assist him.

Yushchenko continued his campaign, even after being poisoned. (A political reformer, poisoned? Why does that sound familiar?). When the election was held, international observers noted huge irregularities and fraud, and when election authorities declared his opponent the winner, the people of Ukraine poured into the streets in protest in what became known as the Orange Revolution (after the prominent color used by Yushchenko’s campaign). In the end, the Ukrainian courts looked at it, agreed with the accusations of fraud, and ordered a new election – an election Yushchenko won.

The day after the JFK Library honored Yushchenko, he addressed a joint meeting of the US Congress. Just like Zelenskyy yesterday, he tied what was happening in Ukraine with the US and its own history, opening his remarks with these words:

Mr. Speaker and Mr. President, Honorable Senators and House Members, Ladies and Gentlemen: On the wall of this great building, there is the Latin phrase “E Pluribus Unum,” which means “Out of many, one.” This motto reminds the world about the American Revolution, the starting point of the modern world’s history of liberty.

My road here went through the orange-colored Independence Square that became known as maidan. Millions of people standing there continuously repeated it: “Together we are many, we cannot be defeated.” This motto of the Ukrainian Revolution is a reminder of the fact that freedom continues to win. Ukraine is opening a new page in the world’s chronicle of liberty in the 21st century.

These two mottos have a lot in common. They speak to the strength of our peoples that comes from unity. They speak of the victories of our peoples in their struggles for freedom.

The whole address is here [pdf, beginning on page 12], but let me highlight a few other parts of it.

My oath is built on the reminiscences of the common prayer of hundreds of thousands of people in the maidan. Christians, Jews, Muslims were praying one prayer, everybody according to their rites, with everybody asking the Creator for one thing: freedom, fairness and blessings for Ukraine and for each of its citizens.

We are building an open economy that encourages innovation, rewards initiative, and assures high social standards. We are beginning an implacable war on corruption, promoting fair competition and forming transparent government-to-business relations. My goal is to place Ukraine in the forefront of prosperous democracies. My vision of the future is Ukraine in a United Europe.

That sounds a bit like something we heard from Zelenskyy last night:

Ladies and gentlemen — ladies and gentlemen, Americans, in two days we will celebrate Christmas. Maybe candlelit. Not because it’s more romantic, no, but because there will not be, there will be no electricity. Millions won’t have neither heating nor running water. All of these will be the result of Russian missile and drone attacks on our energy infrastructure.

But we do not complain. We do not judge and compare whose life is easier. Your well-being is the product of your national security; the result of your struggle for independence and your many victories. We, Ukrainians, will also go through our war of independence and freedom with dignity and success.

We’ll celebrate Christmas. Celebrate Christmas and, even if there is no electricity, the light of our faith in ourselves will not be put out. If Russian — if Russian missiles attack us, we’ll do our best to protect ourselves. If they attack us with Iranian drones and our people will have to go to bomb shelters on Christmas Eve, Ukrainians will still sit down at the holiday table and cheer up each other. And we don’t, don’t have to know everyone’s wish, as we know that all of us, millions of Ukrainians, wish the same: Victory. Only victory.

Yushchenko continued his 2005 speech by laying out a desire to integrate more fully with Europe, and buttressed his remarks with references to Presidents Wilson, Reagan, Bush the Elder, and Clinton. Then he went on:

Dear friends, the goal of my visit to the U.S. is to establish a new era in Ukraine-U.S. relations. We do not seek only thaws that alter chillings in our relations. We seek a new atmosphere of trust, frankness and partnership. A new Ukraine offers the U.S. a genuinely strategic partnership.

[snip]

The U.S. and Ukraine have common strategic interests, and we have unity in one thing. Everywhere possible we want to uphold freedom and democracy. We are committed to such a responsibility because we know if somebody is deprived of freedom, this freedom has been taken away from us.

[snip]

Ukraine will be a reliable partner to the U.S. in fighting terrorism. I am sure we will be able to overcome it and not only by power of force. It is our obligation to eradicate the sources of terrorism. We can defeat the ideology of hatred that nourishes it. I am fully convinced that the time will come when in the dictionary of world languages, the term “terrorism’’ will be followed by the footnote, “archaic term.’’

The actions of the past year have proven Yushchenko’s promise that Ukraine would be a reliable partner of the US to have been honored, and Zelenskyy’s speech yesterday was a great reminder of what Yushchenko said in 2005.

Near the end of his address, Yushchenko began his conclusion with these words:

Ladies and Gentlemen: John Fitzgerald Kennedy took an oath before the whole world by saying, “We shall pay any price, bear any burden, meet any hardship, support any friend, oppose any foe, to assure the survival and the success of liberty.’’ I am subscribing to these words on behalf of Ukraine. This authority was given to me by my fellow countrymen who endured days and nights in bitter cold and snow on the maidan. Ukraine is free and will always remain free. Citizens of Ukraine gained their freedom due to their courage and support of friends and proponents of democracy across the world.

These words, too, have proven true.

Yushchenko spoke to Congress in 2005 at the invitation of a GOP-run House and Senate, while a Republican president was in the White House. Zelenskyy spoke to Congress yesterday at the invitation of a Democratic-run House and Senate, while a Democratic president was in the White House. Both Ukrainian presidents hit the same notes, pleading for a stronger partnership with the US, regardless of which political party was in charge in DC. Even without that partnership, however, each pledged that Ukraine would continue its fight for freedom.

Over the past year, Volodymyr Zelenskyy and the people of Ukraine have demonstrated that Yushchenko’s words were not simply flowerly language in a fluffy speech. Back in 2005, Caroline Kennedy said this about why the JFK Library selected Yushchenko to receive the Profiles in Courage award:

His courage has inspired citizens of the world. For those of us who are free – he has reminded us that we can never take our freedom for granted, and for people with no voice in their own government, President Yushchenko and the Ukrainian people have given them hope.

Zelenskyy delivered his own reminder of this to those of us who are free last night, much as Yushchenko did in 2005.

Thank you, President Zelenskyy. Slava Ukraini, indeed.

 

Hatchet Speed Arrested on a Small Part of his $50,000 “Panic Buying” Arsenal

Last month, I reminded readers that every single one of the 5,000 people in whom the FBI might still have an investigative interest relating to January 6 — even just the trespassers — could be the next Ricky Shiffer: a Trump supporter mobilized by Trump’s false claims of victimhood who attempted to breach an FBI office, only to be killed in a shootout with police.

That’s because there are 5,000 more like him out there.

I don’t mean, there’s a shit-ton of Trump supporters who could go postal at any moment. There are far more than 5,000 of them.

I mean, there are 5,000 people who participated in January 6 that the FBI might have predicated investigative interest in, but has not yet arrested.

That’s a fairly conservative number. In recent days, DOJ passed the 850 arrest mark for January 6 defendants. There are probably 1,500 to 2,000 more people who entered the Capitol on January 6 whose arrest would be comparatively easy (because their trespass is fairly easy to prove) who have not yet been arrested. There are probably 250 identified suspected assailants still at large (over 530 people, including those who’ve been arrested, are listed on the FBI site). And there were probably 10,000 people who breached the external barricades but did not enter the building that DOJ would only arrest if there were something extra — the political profile of Ryan Kelley or Couy Griffin, the pre-existing Deferred Prosecution Agreement of Owen Shroyer, conspiracy ties like Stewart Rhodes — to justify the arrest. Sure, the people who attended the January 5 rally, as Shiffer did, were more likely to participate in more radicalized online networks; those people weren’t in DC just to hear the loser of an election speak.

But at every moment that DOJ has been investigating the leaders that orchestrated January 6 (which provably started within weeks of the attack) and at every moment that DOJ has been investigating Trump’s other criminal acts, DOJ and FBI have been trying to deal with the growth of political violence that Trump has deliberately fostered. DOJ spent the weeks after January 6 doing triage, trying to arrest enough people to get visibility on the very real plans for follow-on attacks before or at the Inauguration. DOJ spent the year after January 6 trying to incapacitate the militia networks that served as an organizing structure for the attack. And DOJ has spent the last six months, as it turned more overtly to investigate several sets of crimes by the former President, trying to anticipate which of those 5,000 veterans of January 6 would, alone or in concert, attempt to reignite a civil war.

I hope that, given the Shiffer example, impatient people who’ve never bothered to understand the crime scene itself will remember that everyone they’ve dismissed for a year as low-level January 6 trespassers may be the next Ricky Shiffer. It’s easy to imagine that if you just arrest Trump all that political violence will dissipate. But that wouldn’t even have been true in 2019, if Mueller had indicted, and it sure as hell isn’t true now. And every step DOJ takes to get closer to arresting Trump, or even just hold the butchers like Fitzsimons who took up arms on January 6 accountable, the mob of people that Trump radicalized on January 6 remains an urgent threat.

In that post, I referenced an earlier one focused on January 6 misdemeanants where I explained why a similar misdemeanor arrest, that of Hatchet Speed, might be among the trespassing arrests that carried far greater significance.

One reason I said that is because a cleared defense contractor with ties to the Proud Boys — who in his arrest affidavit was described as just another face in the crowd — poses a particularly urgent concern.

This is the kind of guy — a cleared defense contractor who went to the insurrection with some Proud Boys “with whom he keeps in contact” — whose cooperation DOJ has used fruitfully in the past. He’s also the kind of guy who presents the ongoing urgent concern about our Deep State being riddled with militia sympathizers.

It turns out that, by the time the FBI arrested him for the DC crime, they already knew he spent the months after Joe Biden’s inauguration “panic buying” an arsenal of weapons and speaking approvingly of a whole ideological swath of terrorists.

That was disclosed yesterday in an affidavit unsealed along with an indictment for three unregistered silencers in Virginia (Seamus Hughes first found the arrest).

5. The FBI has obtained evidence that, in the months following January 6, 2021, SPEED purchased numerous firearms and firearm parts. In a meeting with an FBI undercover employee (UCE-1), SPEED made comments suggesting that he was “panic buying” during this time.

6. As reflected in ATF Form 4473s completed at the time of sale, SPEED purchased at least twelve firearms between February 11, 2021, and May 26, 2021 :

a. On February 11,2021, SPEED purchased an FN 509 (9mm pistol) from Vienna Arsenal;

b. On February 15,2021, SPEED purchased a Smith & Wesson Mod 10-6 (.38 SPL revolver) from Herndon Arms;

c. On March 12,2021, SPEED purchased a Glock 27 (.40 pistol), Mossberg 590 Shockwave (12-gauge shotgun), and Tikka T3X (6.5 Creedmoor rifle) from Vienna Arsenal;

d. On March 30, 2021, SPEED purchased a Sig Sauer MCX (.300 Blackout pistol) and a Benelli Supernova (12-gauge shotgun) from Vienna Arsenal;

e. On April 30, 2021, SPEED purchased a Sig Sauer Virtus (multiple caliber rifle) and Walther P22 (.22 pistol) from Vienna Arsenal;

f. On May 21, 2021, SPEED purchased an S&W Mod 60 (.38 SPL revolver) and S&W Mod 36 (.38 SPL revolver) from Vienna Arsenal;

g. On May 26, 2021, SPEED purchased a Sig Sauer MCX Virtus (5.56 pistol) from Vienna Arsenal.

7. Financial statements and other evidence collected in the course of the investigation reveal that SPEED purchased more than $50,000 at firearm and/or firearm part retailers, including the purchase of the twelve firearms described above, in the months after January 6, 2021. For example, financial statements from one of SPEED’s credit cards show that, just in the one-month period between February 15, 2021, and March 16, 2021, SPEED made the following purchases at firearms and/or firearm part retailers:

a. February 16,2021 – $4,109.00 at Silencer Shop in Texas;

b. February 16,2021 – $980.41 at Alamo Ammo in Texas;

c. February 16,2021 – $207.00 at Trex Arms in Tennessee;

d. March 3, 2021 – $668.99 at Reeds Family Outdoors in Minnesota;

e. March 8, 2021 – $194.90 at Greenacres Sporting Goods in Florida;

f. March 8, 2021 – $5,389.97 at OpticsPlanet, Inc., in Illinois;

g. March 8, 2021 – $100.42 at OutdoorLimited.com in North Carolina;

h. March 8, 2021- $215.31 at SGAmmo LLC in Oklahoma;

i. March 9,2021 – $1,137.29 at Ammo Freedom in Texas;

j. March 10,2021 – $1,919.99 at Guns Dot Com in Minnesota;

k. March 11,2021 – $80 in MidwayUSA in Missouri; 1

l. March 11, 2021 – $4,207.13 at SP & G Shooting Range in Virginia;

m. March 12,2021 – $660.99 at OutdoorLimited.com;

n. March 12,2021 – $290.74 at Armageddon Gear LLC in Georgia;

o. March 12,2021 – $297.80 at Freedom Munitions in Idaho;

p. March 12,2021 – $189.46 at EuroOptic Ltd Online in Pennsylvania;

q. March 12, 2021 – $695.00 at ESAD Arms LLC in Texas;

r. March 14,2021 – $568.00 at MidwayUSA in Missouri;

s. March 14,2021 – $374.12 at Silencer Shop in Texas;

t. March 15,2021 – $328.95 at Peak Case in Utah

At a meeting in March, Speed described to an undercover FBI officer how he liked to read Eric Rudolph and Ted Kaczynski so he could figure out how to improve on their game plans.

13. At the meeting on March 1, 2022, SPEED stated that he thought what Rudolph did was a mistake and that the bombing did not accomplish anything. But SPEED noted that Rudolph “was a right winger that got tired of what was happening and he wrote a book over his several year[ s] running from the FBI.” SPEED said that he “thought that was cool and … lover d] the fact that [Rudolph] can say what he did because he ha[ d] nothing to lose by writing [the book].” SPEED noted that he was “trying to find more books like that because [he] love[d] reading about people that are like ok, yeah, you’re assassinating bad guys, that’s cool, but if it’s approved then you’re always killing the small fry, you’re never actually going after the people who actually … ,” and then trailing off.

14. During the same meeting, SPEED also stated that he “like[ d] to read more stuff like that, like Ted Kaczynski,” who is commonly known as the “Unabomber.” SPEED stated the following (with my emphasis added):

Kaczynski wrote a manifesto and once again, like the stuff he did was not effective, but I can commiserate with where he was coming from. Because I think as people who can see their country fall deeper and deeper into wherever we’re going, we all know we have to do something so it’s useful to see what worked and what didn’t work. So, it’s useful to get into these people’s heads and you know, try and come up with a better game plan than they had.

15. During a meeting with UCE-l on March 15,2022, SPEED discussed Eric Rudolph again. In doing so, SPEED suggested Rudolph went wrong because he targeted rich people, when it is not about the money. SPEED said that instead it is “about power.” [emphasis FBI’s]

Speed spoke approvingly of kidnappings and talked about how he might pick victims.

27. In this conversation, SPEED continued by describing how kidnappings would be more effective than killing people. SPEED stated the following:

[K]idnappings are harder than killing people but they’re more effective. What I would love to see is you take somebody out, and they simply disappear. Nobody knows what happened to them. That means we can’t report on it, the media doesn’t know how to spin it. … And all of those people who were left behind have … no way to close that bridge, no way to know if they’re in danger. … We need to foster distrust within the opposite side, just like they do for us…. If you leave nothing behind, they never find the body.

This affidavit was submitted in conjunction with his arrest in June (and was the basis for putting him on house arrest with it). Since then, though, he has been permitted to attend weekend drill exercises as a member of the Navy Reserve at (!!!) Andrews Air Force Base.

Yesterday’s indictment feels like a stub for something else. It’s based on his possession, when he was arrested in June, of those three silencers. And while the government submitted his bond conditions in that docket, it’s not even clear whether he remained in possession of the three silencers after he was released after his June arrest.

EDVA started the paperwork to arrest him last Wednesday, September 2. That was two days after he requested to travel to Tampa Bay, ostensibly for a medical appointment, on September 11.

A number of militia members charged in January 6 are from the area. And Sarasota is where a lot of Trump’s — and Mike Flynn’s — post January 6 plotting has taken place.

This arrest presumably also derails any attempt Trevor McFadden would make (as he suggested he might back in July), at a scheduled status hearing on September 30, to accept a plea from Speed and release him with a hand-slap.

This is a man with a highly trained skillset and an arsenal who has been thinking a lot about terrorism in recent months. But before June, he was just another January 6 trespasser in the crowd.

Three Things: Something Truck-ed This Way Comes

[NB: Check the byline, thanks. /~Rayne]

If you’re not white you’re not surprised at expressions of hate in our society. There are frequent demonstrations in the form of microaggressions white folks often miss.

Sometimes they’re more obvious, like racist tagging on buildings or even more obvious like the noose once left in a friend’s front yard tree, or direct confrontation experienced by another friend and their family who trapped in their car by racists yelling at them and beating on their vehicle. Many of these expressions never make the local news and might not even be reported to police for fear of making things worse.

But overt signs of hate, the kind to which even white people notice and take exception, didn’t appear as frequently in the news until Donald Trump took the White House.

Now increasingly everyone can see the wretchedness out in the open, waving its stars and bars, screaming hateful epithets at persons who aren’t cis-het white.

Like the insurrectionists waving Confederate flags outside and in the Capitol building on January 6, 2021.

Like the neo-Nazis’ demonstration in Orlando, Florida this past February.

And then the usual Republican DARVO response – Deny, Attack, and Reverse Victim and Offender – when confronted with these hateful expressions.

In February, Florida Gov. Ron DeSantis’ aide Christina Pushaw accused the Democrats of being neo-Nazis followed by DeSantis playing victim by accusing Democrats of smearing him about the neo-Nazis.

Yet nothing about DeSantis’ office’s response discouraged another future demonstration with attacks on passersby.

The hate’s all out there in the open – and it’s escalating.

It’s no longer restraining itself to minorities, either; it may also be a component of hybrid warfare intent on demoralizing a substantive number of Americans while embedding and normalizing itself in our communities.

~ 3 ~

On Saturday evening December 4, 2021, a white nationalist group — the Patriot Front (PF) — gathered in Washington DC and paraded in numbers along the Mall before hopping into U-Haul trucks and driving away.

The group is a spin-off from Vanguard America which took part in the hate rally in Charlottesville VA in 2017.

PF has had numerous pop-up events; the Anti-Defamation League has documented their activity across the country from propaganda to rallies. The December 4 event was in the same vein.

There were many calls to avoid giving this fascist organization any air time, and more calls to ridicule them as unserious.

… This weekend in Washington, a ridiculous white supremacist boys club called Patriot Front dressed up in matching outfits to make themselves look like menacing middle managers of an electronics store. They got their white nationalist flags and their little shields and their khakis and their shin guards and they marched from the Lincoln Memorial down the national mall in what was supposed to be a white supremacist show of force in the nation`s capital. …

(source: Rachel Maddow, MSNBC )

But the December 4 event should have given us pause, especially 11 months after the January 6 Capitol Building insurrection.

— PF didn’t have a permit for their demonstration;

— They amassed a large number of participants in a short time with little-to-no advance notice to the public;

— They used at least one smoke bomb during their demonstration;

— Their rally took place in the same area the insurrectionists gathered and traveled from the January 6 speeches at the Ellipse to the Capitol Building;

— Police presence was a fraction of the number of PF rally attendees, with many on bikes;

— It was difficult to tell whether police were protecting or monitoring PF attendees.

Not only were folks left of center insisting PF’s rally not be treated as a valid expression of dissent, but they encouraged laughing at their normcore appearance which included not only khaki pants and ball caps but white neck gaiter masks.

Where have we seen so many white men wearing white fabric masks over their faces not to prevent infection but to hide identity while displaying a unified identity?

The December 4 event and other earlier PF events like this one may have looked performative, like costume players merely dressing as contemporary fascists, but the entire effort made a point and may have been proof-of-concept for some other future effort.

In other words, what’s to stop another group which is armed from beginning an assault on Washington DC in exactly the same way?

Enclosed box trucks show up, their contents not visible to anyone on the street including law enforcement; the occupants jump out wearing similar outfits and shields but this time concealing firearms and other weapons; they march to their intended destination and deploy a smoke bomb at first to mask another explosive device or to mask their weapons.

On December 4 they made it clear they could do this.

I’d have been less worried about these normcore shock troops but persons with more expertise have likewise expressed concern.

~ 2 ~

All of the above I wrote months ago, beginning a draft in December after the PF event in D.C., revising the draft after yet another PF rally on January 8, 2022 when PF participated in the March for Life anti-abortion rally in Chicago IL.

Clearly I should have published what I had at the time, ahead of yesterday’s arrest of 31 PF members in Coeur d’Alene ID for conspiracy to riot at a scheduled Pride parade.

Though Coeur d’Alene police were in contact with federal law enforcement, it was CADPD which handled the arrest and charging of the PF members.

Only one person of the 31 arrested was from Idaho; the rest were from across the U.S. — Washington, Oregon, Texas, Utah, Colorado, South Dakota, Illinois, Wyoming, Virginia, and Arkansas — though the bulk were from West and Midwest states.

Like the December 4, 2021 PF rally in DC, CADPD found PF brought riot gear, one smoke grenade, shin guards and shields.

No firearms have been mentioned in any reports, but this event could have been bad had PF arrived and violence triggered if locals were carrying weapons.

There have been no federal charges, yet; it’s not clear if any federal laws were broken. Traveling across state lines might be a factor.

It’d be easy to brush this off as just another stunt by cosplayers on a sunny summer Saturday afternoon, except the number of events like this and the corresponding propaganda by PF have exploded.

(source: ADL report: White Supremacist Propaganda Spikes in 2020)

More than 80% of that uptick was PF’s work. Where are they going with this besides demoralizing much of the country?

~ 1 ~

There’s been some confusion in left-of-center social media about Patriot Front and the Proud Boys, some mistaking one for the other. They are different groups with overlapping if not identical ideologies.

Patriot Front

Proud Boys

Launched: 2017 (spun off from Vanguard) Launched: 2016
Ideology:

  • Patriot Front is a white supremacist group whose members maintain that their ancestors conquered America and bequeathed it to them, and no one else.
  • Patriot Front justifies its ideology of hate and intolerance under the guise of preserving the ethnic and cultural origins of its members’ European ancestors.

(source: ADL’s backgrounder)

Ideology:

  • The Proud Boys are a right-wing extremist group with a violent agenda. They are primarily misogynistic, Islamophobic, transphobic and anti-immigration. Some members espouse white supremacist and antisemitic ideologies and/or engage with white supremacist groups.

(source: ADL’s backgrounder)

Their xenophobia, antisemitism, and misogyny are their primary shared attributes along with racism to varying degrees.

We’ve now seen what the Proud Boys have been willing to do which Patriot Front have not yet engaged in — participation in events which can become violent. Yesterday’s Pride parade in Coeur d’Alene could have become a crossover event had Team PF not been arrested ahead of their destination.

What’s problematic, though, is the slack Proud Boys have been allowed. They’ve been treated like other civic and community organizations when their core ideology is hate. Buhl, Idaho allowed the Proud Boys to participate in a parade last summer:

The Times-News reports that Proud Boys members were among about 100 floats in the Sagebrush Days parade that went through the center of town.

The Buhl Chamber of Commerce runs the parade but wouldn’t comment specifically about the Proud Boys taking part.

“At this time the Buhl Chamber (of) Commerce will not feed into any negative propaganda,” the group said in a statement to the newspaper. “The Buhl 2021 Sagebrush Days parade saw 90 plus entries who celebrated in a courteous and civil manner. The Buhl Chamber takes pride in welcoming all participants, while giving them the opportunity to celebrate our great nation.”

“will not feed into any negative propaganda” meaning what, they weren’t going to allow anyone to bash Buhl’s Chamber of Commerce, or they weren’t going to let anyone bash the Proud Boys?

So long as Buhl allows the Proud Boys to participate in a community event, there’s no daylight between Buhl and the Proud Boys.

Ditto for Scotland, South Dakota which had agreed to allow the Proud Boys to host a street dance in their town though the Proud Boys backed out due to unspecified security concerns.

Both communities have validated and legitimized a hate group by allowing them equal footing with the rest of their community.

Would they have done so with Patriot Front had they taken the same approach as the Proud Boys rather than showing up in a U-Haul panel van after publishing comments online which could be construed as an expressed intent to riot?

Are these two hate groups testing the waters to see where they can establish a foothold and grow their organizations? Or has there been something more hateful in the offing?

Why yes, there was — where PF was stopped from harassing a Pride event in Idaho, the Proud Boys had already stormed a public library to halt a Drag Queen story hour in San Lorenzo, California, scaring families with children by shouting hate-filled diatribes at attendees.

Alameda County sheriff’s department escorted the Proud Boys out of the venue.

Between the two groups at these two different locations on the same day, they now know they can get away with their harassment if they restrain themselves to smaller numbers and target families with children, or attack larger groups if they use more operations security.

~ 0 ~

When I first set out months ago to write about PF, I had also wanted to discuss harassment of Historically Black Colleges and Universities (HBCUs) and the truck convoys. Both are examples of the spread of overt expressions of hate, the first being racist and the second being socio-economic. Whatever was driving the attacks on HBCUs and the convoys has eased for now. I wouldn’t be one bit surprised if foreign influence operations were the primary drivers.

However we have plenty to focus on immediately with the domestic influence operations these two hate groups are engaged in which must be stopped.

PF, by the way, still has an active Twitter account and a Twitter account used as a follow hub.

DOJ Is Treating January 6 as an Act of Terrorism, But Not All January 6 Defendants Are Terrorists

It turns out that Ted Cruz is (partially) right: Some of the people who participated in January 6 are being treated as terrorists. But not all January 6 participants are terrorists.

Though, predictably, Cancun Ted misstates which insurrectionists have been or might be labeled as terrorists — in part out of some urgency to avoid calling himself or Tucker Carlson as such.

While some defendants accused of assaulting cops will, I expect, eventually be slapped with a terrorism enhancement at sentencing, thus far, the people DOJ has labeled terrorists have been key members of the militia conspiracies, including a number who never came close to assaulting a cop (instead, they intentionally incited a shit-ton of “normies” to do so).

Ted Cruz wants to treat those who threatened to kill cops as terrorists, but not those who set up the Vice President to be killed.

The problem is, even the journalists who know how domestic terrorism works are giving incomplete descriptions of how it is working in this investigation. For example, Charlie Savage has a good explainer of how domestic terrorism works legally, but he only addresses one of two ways DOJ is leveraging it in the January 6 investigation. Josh Gerstein does, almost as an aside, talk about how terrorism enhancements have already been used (in detention hearings), but then quotes a bullshit comment from Ethan Nordean’s lawyer to tee up a discussion of domestic terrorism as a civil rights issue. More importantly, Gerstein suggests there’s a mystery about why prosecutors haven’t argued for a terrorism enhancement at sentencing; I disagree.

As numerous people have laid out, domestic terrorism is defined at 18 USC 2331(5):

(5) the term “domestic terrorism” means activities that—

(A) involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State;

(B) appear to be intended—

(i) to intimidate or coerce a civilian population;

(ii) to influence the policy of a government by intimidation or coercion; or

(iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and

(C) occur primarily within the territorial jurisdiction of the United States; and

As both Savage and Gerstein point out, under 18 USC 2332b(g)(5) there are a limited number of crimes that, if they’re done, “to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct,” can be treated as crimes of terrorism. One of those, 18 USC 1361, has been charged against 40-some January 6 defendants for doing over $1,000 of damage to the Capitol, including most defendants in the core militia conspiracies. Another (as Savage notes), involves weapons of mass destruction, which likely would be used if DOJ ever found the person who left bombs at the RNC and DNC. Two more involve targeting members of Congress or Presidential staffers (including the Vice President and Vice President-elect) for kidnapping or assassination.

If two or more persons conspire to kill or kidnap any individual designated in subsection (a) of this section and one or more of such persons do any act to effect the object of the conspiracy, each shall be punished (1) by imprisonment for any term of years or for life,

There’s very good reason to believe that DOJ is investigating Oath Keeper Kelly Meggs for conspiring to assassinate Nancy Pelosi, starting on election day and continuing as he went to her office after breaking into the Capitol, so it’s not unreasonable to think we may see these two laws invoked as well, even if DOJ never charges anyone with conspiring to assassinate Mike Pence.

Being accused of such crimes does not, however, amount to being charged as a terrorist. The terrorist label would be applied, in conjunction with a sentencing enhancement, at sentencing. But it is incorrect to say DOJ is not already treating January 6 defendants as terrorists.

DOJ has been using 18 USC 1361 to invoke a presumption of detention with militia leaders and their co-conspirators, starting with Jessica Watkins last February. Even then, the government seemed to suggest Watkins might be at risk for one of the kidnapping statutes as well.

[B]ecause the defendant has been indicted on an enumerated offense “calculated to influence or affect the conduct of government,” the defendant has been charged with a federal crime of terrorism as defined under 18 U.S.C §§ 2332b(g)(5). Therefore, an additional basis for detention under 18 U.S.C § 3142(g)(1) is applicable. Indeed, the purpose of the aforementioned “plan” that the defendant stated they were “sticking to” in the Zello app channel became startlingly clear when the command over that same Zello app channel was made that, “You are executing citizen’s arrest. Arrest this assembly, we have probable cause for acts of treason, election fraud.” Id. [my emphasis]

DOJ has invoked 18 USC 1361 as a crime of terrorism for detention disputes with the central Proud Boys conspirators as well. It’s unclear how broadly DOJ might otherwise do this, because another key figure who is an obvious a candidate for such a presumption, Danny Rodriguez (accused of tasing Michael Fanone and doing damage to a window of the Capitol), didn’t fight detention as aggressively as the militia members have, presumably because his alleged actions targeting Fanone clearly merit detention by themselves. That said, I believe his failed attempt to suppress his FBI interview, in which he admitted to helping break a window, was an attempt to limit his exposure to a terrorism enhancement.

We have abundant evidence that DOJ is using the threat of terrorism enhancement to get people to enter cooperation agreements. Six of nine known cooperators thus far (Oath Keepers Graydon Young, Mark Grods, Caleb Berry, and Jason Dolan, Proud Boy Matthew Greene, and SoCal anti-masker Gina Bisignano) have eliminated 18 USC 1361 from their criminal exposure by entering into a cooperation agreement. And prosecutor Alison Prout’s description of the plea deal offered to Kurt Peterson, in which he would trade a 210 to 262 month sentencing guideline for 41 to 51 months for cooperating, only makes sense if a terrorism enhancement for breaking a window is on the table.

You can’t say that DOJ is not invoking terrorism enhancements if most cooperating witnesses are trading out of one.

For those involved in coordinating the multi-pronged breaches of the Capitol, I expect DOJ will use 18 USC 1361 to argue for a terrorism enhancement at sentencing, which is how being labeled as a terrorist happens if you’re a white terrorist.

But there is another way people might get labeled as terrorists at sentencing, and DOJ is reserving the right to do so in virtually all non-cooperation plea deals for crimes other than trespassing. For all pleas involving the boilerplate plea deal DOJ is using (even including those pleading, as Jenny Cudd did, to 18 USC 1752, the more serious of two trespassing statutes), the plea deal includes this language.

the Government reserves the right to request an upward departure pursuant to U.S.S.G. § 3A1.4, n. 4.

That’s a reference to the terrorism enhancement included in sentencing guidelines which envisions applying a terrorism enhancement for either (A) a crime involving coercion other than those enumerated under 18 USC 2332b or (B) an effort to promote a crime of terrorism.

4. Upward Departure Provision.—By the terms of the directive to the Commission in section 730 of the Antiterrorism and Effective Death Penalty Act of 1996, the adjustment provided by this guideline applies only to federal crimes of terrorism. However, there may be cases in which (A) the offense was calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct but the offense involved, or was intended to promote, an offense other than one of the offenses specifically enumerated in 18 U.S.C. § 2332b(g)(5)(B); or (B) the offense involved, or was intended to promote, one of the offenses specifically enumerated in 18 U.S.C. § 2332b(g)(5)(B), but the terrorist motive was to intimidate or coerce a civilian population, rather than to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct. In such cases an upward departure would be warranted, except that the sentence resulting from such a departure may not exceed the top of the guideline range that would have resulted if the adjustment under this guideline had been applied. [my emphasis]

The point is, you can have a terrorism enhancement applied even if you don’t commit one of those crimes listed as a crime of terrorism.

In a directly relevant example, the government recently succeeded in getting a judge to apply the latter application of this enhancement by pointing to how several members of the neo-Nazi group, The Base, who pled guilty to weapons charges, had talked about plans to commit acts of terrorism and explained their intent to be coercion. Here’s the docket for more on this debate; the defendants are appealing to the Fourth Circuit. This language from the sentencing memo is worth quoting at length to show the kind of argument the government would have to make to get this kind of terrorism enhancement at sentencing.

“Federal crime of terrorism” is defined at U.S.S.G. § 3A1.4, app. note 1 and 18 U.S.C. § 2332b(g)(5). According to this definition, a “federal crime of terrorism” has two components. First, it must be a violation of one of several enumerated statutes. 18 U.S.C. § 2332b(g)(5)(B). Second, it must be “calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.” 18 U.S.C. § 2332b(g)(5)(A). By § 3A1.4’s plain wording, there is no requirement that the defendant have committed a federal crime of terrorism. All that is required is that the crimes of conviction (or relevant conduct) involved or were intended to promote a federal crime of terrorism.

[snip]

To apply the enhancement, this Court needs to identify which specific enumerated federal crime(s) of terrorism the defendants intended to promote, and the Court’s findings need to be supported by only a preponderance of the evidence. Id.17

The defendants repeatedly confirmed, on tape, that their crimes were intended to promote enumerated federal crimes of terrorism. They intended to kill federal employees, in violation of 18 U.S.C. § 1114. Exhibit 19; Exhibit 20; Exhibit 28; Exhibit 33; Exhibit 34; Exhibit 44; Exhibit 45. They intended to damage communication lines, in violation of 18 U.S.C. § 1362. Exhibit 37. They intended to damage an energy facility, in violation of 18 U.S.C. § 1366(a). Exhibit 30; Exhibit 35; Exhibit 36; Exhibit 45. They intended to damage rail facilities, in violation of 18 U.S.C. § 1992. Exhibit 29; Exhibit 30; Exhibit 38; Exhibit 45. And they intended to commit arson or bombing of any building, vehicle, or other property used in interstate commerce, in violation of 18 U.S.C. § 844(i). Exhibit 45.

Furthermore, there can be no serious dispute that the defendants’ intentions were “to influence or affect the conduct of government by intimidation or coercion.” Coercion and capitulation were core purposes of The Base. And specific to the defendants, they themselves said this is what they wanted. Exhibit 39 (“Desperation leads to martyr. Leads to asking what we want. Now that’s where we would have to simply keep the violence up, and increase the scope of our demands. And say if these demands are not met, we’re going to cause a lot of trouble. And when those demands are met, then increase them, and continue the violence. You just keep doing this, until the system’s gone. Until it can’t fight anymore and it capitulates.”). It was their express purpose to “bring the system down.” Exhibit 36

Given how many people were talking about hanging Mike Pence on January 6, this is not a frivolous threat for January 6 defendants. But as noted, such a terrorism enhancement doesn’t even require the plan to promote assassinating the Vice President. It takes just acts dangerous to human life that are a violation of the criminal laws of the United States and an attempt to coerce the government.

Contra Gerstein, I think there’s a pretty easy explanation for why the government hasn’t asked for a terrorism enhancement yet. The way the government is relying on obstruction to prosecute those who intended to prevent the peaceful transfer of power sets up terrorism enhancements for some of the most violent participants, but we’ve just not gotten to most of the defendants for whom that applies.

Thus far, there have been just three defendants who’ve been sentenced for assault so far, the acts “dangerous to human life” most at issue: Robert Palmer, Scott Fairlamb, and Devlyn Thompson. But Palmer and Thompson pled only to assault.

Fairlamb, as I noted at the time, pled guilty to both assault and obstruction. Unlike the two others, Fairlamb admitted that his intent, in punching a cop, was to, “stop[] or delay[] the Congressional proceeding by intimidation or coercion.”

When FAIRLAMB unlawfully entered the Capitol building, armed with a police baton, he was aware that the Joint Session to certify the Electoral College results had commenced. FAIRLAMB unlawfully entered the building and assaulted Officer Z.B. with the purpose of influencing, affecting, and retaliating against the conduct of government by stopping or delaying the Congressional proceeding by intimidation or coercion. FAIRLAMB admits that his belief that the Electoral College results were fraudulent is not a legal justification for unlawfully entering the Capitol building and using intimidating [sic] to influence, stop, or delay the Congressional proceeding.

Fairlamb, by pleading to assault and obstruction, admitted to both elements of terrorism: violence, and the intent of coercing the government.

On paper, Fairlamb made a great candidate to try applying a terrorism enhancement to. But the sentencing process ended up revealing that, on the same day that Fairlamb punched a cop as part of his plan to overturn the election, he also shepherded some cops through a mob in an effort, he said with some evidence shown at sentencing, to keep them safe.

That is, on paper, the single defendant to have pled guilty to both assault and obstruction looked like a likely candidate for a terrorism enhancement. But when it came to the actual context of his crimes, such an enhancement became unviable.

I fully expect that if the January 6 prosecution runs its course (a big if), then DOJ will end up asking for and getting terrorism enhancements at sentencing, both for militia members as well as some of the more brutal assault defendants, both for those who plead guilty and those convicted at trial. But in the case of assault defendants, it’s not enough (as Ted Cruz says) to just beat cops. With a goodly number of the people who did that, there’s no evidence of the intent to commit violence with the intent of disrupting the peaceful transfer of power. They just got swept up in mob violence.

I expect DOJ will only ask for terrorism enhancements against those who made it clear in advance and afterwards that their intent in resorting to violence was to interrupt the peaceful transfer of power.

But until that happens, DOJ has already achieved tangible results, both in detention disputes and plea negotiations, by invoking crimes of terrorism.

Broken Windows Policing and January 6 Plea Deals

Before Proud Boy Matthew Greene entered into a cooperation plea deal yesterday — the January 6 investigation event that generated a lot of press attention — something else happened that helps to explain the Greene (and most other) pleas thus far.

In a status hearing for Kurt Peterson, AUSA Alison Prout described that the government had offered Peterson a plea deal that she wanted to put on the record. He could plead guilty, Prout explained, to one count of obstruction, which would give him a guidelines range of 41 to 51 months. That compares to the sentence he faces if he were to go to trial on the other 7 counts, including a destruction of government property count, which Prout claimed might be 210 to 262 months. Prout claimed there had even been a meeting in Louisville to discuss such a deal and explicitly acknowledged the plea would include cooperation.

Only after that did Peterson’s attorney, Laura Wyrosdick, ask that the hearing — which I had just tweeted out in real time — be sealed to hide the discussion of cooperation.

Whatever effect Prout’s comments will have on her ability to finalize a plea deal with Peterson, she has confirmed something I pointed out when Graydon Young pled guilty. The government is using the terrorism enhancement that can come with 18 USC 1361 charges for damage to government property to convince people to plead to the obstruction charges and gain their cooperation. And because Peterson broke a window while at the Capitol, such a deal will look preferable by comparison.

It’s unclear what the government believes he can offer in cooperation (though the meeting in Louisville suggests he has already proffered testimony). On Facebook after the riot, he revealed he, “was with 3 men who had served our country in special forces. All of us in our sixties. They were patriots and not an [sic] anarchists.” Thus far, just two Special Forces veterans, Jeffrey McKellop and Jeremy Brown, have been arrested so far. McKellop would likely would be younger than his 60s (he completed 22 years of service in 2010) and I think Brown would be too. So it may be DOJ has an interest in Peterson’s co-travelers.

It’s also possible DOJ wants Peterson’s testimony about the attempts to break into, first, the House Chamber and then the Speaker’s Lobby. He was present as Ashli Babbitt was killed (and claimed to be calling the crowd to stop, though that doesn’t show up on the video I’ve seen). He’s not being prosecuted by AUSA Candice Wong in the group of men from that scene that seem to be clustered together. If that’s the case, then the government would be seeking to use the testimony of someone who had himself damaged the building to help prosecute men (at least Zach Alam, the guy who punched through the Speaker’s Lobby door) who likely do merit a terrorism enhancement for their efforts to hunt down members of Congress.

We’ll see whether Peterson ultimately decides to cooperate. But a similar calculation seems to have convinced Matthew Greene to flip on his Proud Boys.

Greene was charged, along with Dominic Pezzola and William Pepe, in what I call the “Front Door Proud Boys Conspiracy,” for the way the three of them worked towards Pezzola’s breach of a Northwest window, the first breach of the building on January 6. Greene was charged with conspiracy to obstruct the vote count (18 USC 371), obstruction (18 USC 1512(c)(2)), civil disorder (18 USC 231), destruction of government property (18 USC 1361, the charge that can carry a terrorism enhancement), as well as three trespassing counts.

His plea agreement shows that he pled to conspiracy — which the plea agreement claims included both obstruction and civil disorder (the first indictment did include both) — and the obstruction charge. Rather than a separate charge for vicarious responsibility for Pezzola’s break of the window (on an abetting charge), that liability is added to the obstruction charge as an “offense involving property damage.” At the hearing yesterday, it was said his guidelines range would be 41 to 51 before accounting for the cooperation.

That is, Matthew Greene made effectively the same deal that Peterson is contemplating, though he was probably working from a much higher guidelines range because of the additional civil disorder charge, not to mention possible weapons violations based off an AR-15 seized at his arrest.

Curiously, Greene’s written plea agreement still permits the government to request a terrorism enhancement under U.S.S.G. § 3A1.4, n. 4, which normally is being taken out of cooperation plea deals. But the entire proceeding yesterday was dismayingly discombobulated, with the plea itself just signed by Greene’s attorney and some clauses in the elements of the offense requiring tweaking. So it’s possible the prosecutors just used boilerplate and forgot to take that out. Greene’s attorney, Michael Kasmarek, spoke about the detailed discussions he has had with prosecutors, so he seems to trust them, but I’d still make sure everything were better captured in writing.

Perhaps it reflects the overwhelming workload of this investigation (the Proud Boys team has significantly fewer prosecutors — at least that have noticed appearances — than the team prosecuting the Oath Keepers), but I remain concerned that the team prosecuting the Proud Boys seems less organized than a bunch of the people prosecuting non-militia trespassers.

Greene’s deal differs from others thus far in that he’s moving immediately to sentencing on March 10 (he’s the only publicly identified cooperator in custody), with the understanding that even after sentencing the government may file for another downward departure while he serves his sentence.

The plea agreement contemplates the possibility of witness protection.

Update: Corrected to add Jeremy Brown as a Special Forces arrestee.

Update: Gina Bisignano’s August plea agreement has now been released. She, too, dodged the property damage crime by cooperating. She also faces the same 41 to 51 month sentence.

Marina Medvin’s Client Signs a Plea with the Potential of a Terrorism Enhancement

Marina Medvin is the sweet spot of January 6 lawyers. She’s a legit lawyer, doing particularly good work trying to challenge the asymmetrical access defendants get to security video of the attack. She clearly serves the interests of her clients rather than grifting or focusing more on scoring political points, as some other January 6 defense attorneys appear to do. But she’s also a right wing activist in her own right.

As such, she spends a great deal of time calling people she doesn’t like “terrorists.”

She uses debunked claims about (foreign) terrorists to try to sow fear about immigration.

She spends a great deal of time demanding that the 9/11 attackers be called terrorists.

She calls the evacuation of Afghans who helped the US fight terrorism the importation of terrorists.

She labels Joe Biden’s effort to craft a positive outcome out of Donald Trump’s capitulation to the Taliban as negotiating with terrorists.

She holds protestors accountable for those they affiliate with who call for violence.

She even complains when those held as — and those guarding — terrorists get treated humanely.

Yesterday, with the benefit of Medvin’s able counsel, her client Jenny Louise Cudd pled guilty under a plea agreement that permits the government to ask for a terrorism enhancement under U.S.S.G. § 3A1.4 at sentencing.

To be sure, I agree with Medvin’s assessment yesterday that it is unlikely the government will actually push for this enhancement with Cudd (and I think it even more unlikely that Judge Trevor McFadden would side with such a government request). This appears to be a standard part of any January 6 plea agreement involving sentencing calculations but no cooperation agreement; one thing cooperators are getting — especially those in militia conspiracy cases — is an assurance they won’t been deemed terrorists at sentencing.

Still, Cudd won’t be sentenced until March, and the government may have a far more complete story to tell about the attempted revolution that Cudd applauded by then, a story that will likely incorporate some of the facts to which Cudd admitted under oath yesterday. You never know what DOJ will do or Judge McFadden might find plausible by then.

I raise the terrorism enhancement language in Cudd’s plea agreement not because I think she’ll be treated as one come sentencing (thus far, I think Scott Fairlamb is at greatest risk of that, because his statement of offense admitted both to using violence and to his intent to intimidate those certifying the vote). Rather, I raise it to show that even a right wing activist like Medvin agrees with my reading of the language in these plea agreements. The government is reserving the right to treat these defendants, even someone who pled down to a trespassing misdemeanor like Cudd, as terrorists at sentencing. To be clear: Medvin doesn’t think this will work legally nor does she think her client is implicated in the violence of those with whom she chose to affiliate on January 6, but that is what she described the language effectively means in Cudd’s plea hearing.

Such terrorism enhancements are how domestic terrorists get labeled as terrorists. Because domestic terrorist groups like the Proud Boys or Oath Keepers aren’t labeled as (foreign) terrorist groups by the State Department, affiliation with or abetment of those groups is not per se illegal (as it might be under material support statutes for foreign terrorist organizations). It’s not until sentencing, then, that the government can argue and a judge might agree that the specific crime a person committed involved acts dangerous to human life, and (in the case of January 6) an attempt to intimidate or coerce the policy of government. If the judge does agree, a terrorist enhancement could expose the defendant to a much longer sentence as a result, a guidelines range of 121 to 151 months for someone with no criminal history.

This is a detail that has gone almost entirely unreported elsewhere: that DOJ is building in an ability to treat these defendants as terrorists when it comes to sentencing, sentencing that may be five months in the future.

Mind you, since this would be domestic terrorism, the government could not just wildly label someone as a terrorist for attending a protest at which others present espouse violence, as Medvin has done of Muslims. They’d have to lay out a specific intent on the part of the defendant to threaten force to coerce some political outcome. But if they do so with these January 6 defendants, then they may be legally branded as terrorists for their actions on January 6.

The Eight Month Investigation into the January 6 Investigation Didn’t End in March

I was going to hold off responding to this Spencer Ackerman op-ed in the NYT — which attempts to superimpose conclusions of his book onto ensuing events that have disproven some of his predictions — until I finish a half-written review of the book itself (tl;dr: it’s a great history of the war on terror, but entirely unpersuasive as to its main argument and especially sloppy when it attempts to discuss politics). But I got a bit fed up by the way he claims to be speaking about the response to January 6 with an op-ed that doesn’t incorporate anything more recent than March.

“Eight months later, there is no political response to the insurrection at all,” — Spencer claims, linking an article dated March 26 reporting, “Dem Hearings Bend Over Backward to Ignore GOP Complicity in Capitol Riot –“only a security response aimed at its foot soldiers.” That’s his most recent reference in the entire op-ed, as demonstrated by the links he uses:

Elissa Slotkin: 2/1/21

Somali plot: 1/25/19

Somali plot: 10/14/16

Mike Flynn: 7/9/16

Trump on terrorism: 8/15/16

Trump’s birtherism: 9/19/15

How the January 6 insurrectionists saw themselves: 1/5/21

Veterans: 2/4/21

Non-veteran Mariposa Castro declaring war: 1/21/21

Describing the Jan 6 investigation based on what Michael Sherwin’s comments about sedition, while ignoring what he said about holding everyone accountable: 1/13/21

[Sherwin’s resignation: 3/23/21]

Trump sent them: 1/9/21

Opting against 14A: 2/3/21

Dems on empowering the FBI: 2/5/21

DOJ seeking new domestic terror powers: 2/26/21

Slotkin again on monitoring domestic extremists: 3/23/21

“I am not a terrorist:” 1/13/21

Spencer makes no mention of any of the developments you’d look at to understand how the Biden Administration was responding to January 6, including:

  • A new domestic terrorism response that includes social media monitoring of the sort that might have prevented the attack on the Capitol, but few of the other things Spencer and others have never stopped predicting since January 6.
  • A discussion of the actions of the January 6 Select Committee, on which committee Elissa Slotkin (the Democrat Spencer quoted twice and on whom his book focuses) doesn’t sit. The committee has provided a way around the need to placate Republicans trying to avoid angering Trump, to say nothing of committees (like the House Oversight Committee) packed with key figures in the events of January 6. The committee has already moved to obtain the records of the people that Spencer claims have escaped accountability.
  • A description of Merrick Garland’s repeated comments, starting in his February 22 confirmation hearing and continuing since, that DOJ would go where the evidence leads, including to those who incited it. Garland’s DOJ has also found important ways to avoid sheltering Mo Brooks (and by association all other people who were Federal employees the day of the riot, as Trump was), and to waive executive privilege to allow multiple investigations into Trump’s actions to proceed.
  • How DOJ under Merrick Garland and Lisa Monaco has approached the January 6 investigation, notably with its use of the unpoliticized obstruction statute to charge felonies rather than (thus far at least) sedition, the use of interlocking conspiracies that have already started incorporating some organizers and which could easily be used with Trump and his flunkies, and the possibility of terrorism enhancements that would be decided at sentencing, by judges, rather than by categorical application at the start of investigation.

There are definitely ways that the two decade war on terror played a big role on January 6.

More important than the 22 veterans charged by early February is which figures in the organizing conspiracies applied their military experience to ensuring the success of the operation. Key among those is former Staff Sargeant Joe Biggs, who served in both Iraq and Afghanistan before he went on to play a key propaganda role in the 2016 election; as I’ve described, Biggs was at the head of both major fronts (East Side, West Side) of the attack, and his network incorporates the key organizers of the larger event. Charles Donohoe, Dominic Pezzola, Gabriel Garcia, Jessica Watkins, and Joshua James are other veterans who allegedly turned their war on terror training to play key roles leading an attack on the Capitol. The second front of the attack on the Capitol that Biggs seemed to have anticipated was opened — either coincidentally, or not — by a bunch of Marines, including one on active duty.

If you’re going to talk about the import of the war on terror on January 6, you also have to talk about the mental scars that veterans have brought back. That was made spectacularly clear by Landon Copeland’s PTSD-driven meltdown in a detention hearing. But even Jacob Chansley’s mental illness has ties to his service. These two are not alone among the men and women whose service scars led them to embrace the false promises Donald Trump was offering.

In his book, Spencer rightly complains about the Wanted Dead or Alive rhetoric motivating the War on Terror. He also complains about an, “obsession with the baroque, fragmentary details of what became #Russiagate,” (mistaking the equally baroque counter-propaganda hashtag for those focusing in varying degrees of obsessiveness on the investigation itself) that nevertheless ended with Bill Barr corruptly intervening to protect Trump. But Spencer apparently feels the best way to deal with something else — a plodding, but ambitious, attempt to conduct a law enforcement investigation from the attack itself to its kingpins — is to largely ignore it even while claiming to speak for it.

The January 6 investigation, even in conjunction with the Select Committee, will not fix all the problems with the War on Terror. The two together may not hold the most powerful culprits for January 6 accountable — but that’s not for lack of ambition to do just that. But — in large part because this is an investigation of mostly-white people, which goes to the core of how America’s racism and other demons almost brought down its democracy and still could — it looks more like how the US should have responded to the 9/11 attack and not the caricature that Spencer arrives at by ignoring the last six months.

Following 600 cases as DOJ meticulously obtains the camera footage to see how Alex Jones lured unwitting participants to a second front or attempts to document whether key militia members made an attempt on Nancy Pelosi’s life is not sexy. But it’s what Spencer claims we should have done in response to 9/11.

Reuters Doesn’t Mention Terrorism When Claiming DOJ Won’t Charge Serious Offenses in the January 6 Investigation

Reuters has a story claiming to report that, “FBI finds scant evidence U.S. Capitol attack was coordinated,” that has elicited a lot of consternation. I’d like to look at what it does and does not say. Most of it is true — and not news — but somewhere along the way someone (either the reporters or the sources) misunderstood parts of what they’re looking at.

Reuters or its sources don’t understand how DOJ is charging this

One detail shows this to be true.

The Reuters piece makes much of the fact that DOJ is not charging what it calls “serious” charges.

Prosecutors have filed conspiracy charges against 40 of those defendants, alleging that they engaged in some degree of planning before the attack.

They alleged that one Proud Boy leader recruited members and urged them to stockpile bulletproof vests and other military-style equipment in the weeks before the attack and on Jan. 6 sent members forward with a plan to split into groups and make multiple entries to the Capitol.

But so far prosecutors have steered clear of more serious, politically-loaded charges that the sources said had been initially discussed by prosecutors, such as seditious conspiracy or racketeering.

[snip]

More than 170 people have been charged so far with assaulting or impeding a police officer, according to the Justice Department. That carries a maximum sentence of 20 years.

But one source said there has been little, if any, recent discussion by senior Justice Department officials of filing charges such as “seditious conspiracy” to accuse defendants of trying to overthrow the government. They have also opted not to bring racketeering charges, often used against organized criminal gangs.

Not once does the story mention obstruction, which also carries a maximum sentence of 20 years. If you don’t mention obstruction — and your sources don’t explain that obstruction will get you to precisely where you’d get with a sedition charge, but with a lot more flexibility to distinguish between defendants and a far lower bar of proof (unless and until judges decide it has been misapplied) — then your sources are not describing what is going on with the investigation.

Furthermore, Reuters purports to rule out “more serious, politically-loaded charges,” but it never mentions terrorism.

One reason it wouldn’t, though, is because for domestic terrorists, you don’t charge terrorism, you charge crimes of terrorism or you argue for an enhancement under U.S.S.G. §3A1.4 at sentencing. And that has and will continue to happen. For example, both the Oath Keepers and Proud Boys  conspiracies include 18 USC 1361 charges (damage to a government building exceeding $1,000, a charge that is a bit of a stretch for the Oath Keepers) that constitutes a crime of terrorism, and the government has raised that and noted it is a crime of terrorism in a number of bail disputes. Effectively, DOJ has already called the leaders of the militia conspiracies terrorists. But Reuters doesn’t think that’s worth noting.

Similarly, for both the assault pleas DOJ has obtained thus far, the government has reserved the right to invoke a terrorism enhancement at sentencing. In the case of Scott Fairlamb, who also pled guilty to obstruction, which effectively amounts to pleading guilty to having a political purpose for his assault, I suspect such an enhancement is likely.

Somehow this entire story got written without mentioning what DOJ is using instead of seditious conspiracy: obstruction (which has been charged against over 200 defendants) and terrorism enhancements; civil disorder is likewise not mentioned, but has been charged against around 150 defendants. DOJ isn’t using seditious conspiracy because it doesn’t need it (again, unless and until the courts reject this use of obstruction).

Reuters mis-describes the Proud Boys’ role in the riot

Much of the rest of the story includes details that are true, and public, but arguably misleading.

A “former senior law enforcement official” (most former senior people who had visibility on the investigation have been gone for some time) claims that 90 to 95% of these cases are “one-off” cases, seemingly distinguishing between the 40 people Reuters describes to have been charged in conspiracy from the 540 or so who have not been charged with a conspiracy.

“Ninety to ninety-five percent of these are one-off cases,” said a former senior law enforcement official with knowledge of the investigation. “Then you have five percent, maybe, of these militia groups that were more closely organized. But there was no grand scheme with Roger Stone and Alex Jones and all of these people to storm the Capitol and take hostages.”

On paper, that’s true, and in key places a really important detail. But in other places it doesn’t mean what Reuters suggests it says.

For example, consider the nine men charged in the assault of Daniel Hodges. None of them knew each other before they started beating the shit out of some cops in the Tunnel of the Capitol. But several of the men charged nevertheless managed to orchestrate the assault (indeed, that’s most of what David Mehaffie did do — make other assailants more effective) and so, even while these individuals did not conspire to beat the shit out of cops, they worked in concert when they did so. The same is true for the men jointly accused of assaulting Michael Fanone (though Daniel Rodriguez has not been charged with the other men involved, many people believe because he’ll be charged in a conspiracy with others from Southern California).

Plus, the number cited to Reuters is probably wrong. Ten percent of the 580 people charged would be around 60. There were that many people on the Proud Boys’ organizational Telegram channel that day (though not all those people were present). There are a bunch of Proud Boys already charged individually, including some (like Dan Scott) who could easily be added to existing conspiracy indictments, others charged as groups (like the five Floridians on the Arthur Jackman indictment), and a father-son pair Jeffrey and Jeremy Grace who just got a terrorism prosecutor added. There are five Oath Keepers not included in that conspiracy (four cooperating against the others). And DOJ is only beginning to unwind the 3%er networks involved. So even just considering militias, the number is likely closer to 80.

And there are other important affiliations represented at the riot — with QAnon and anti-maskers being two of the most important — that actually created networks that were in some ways more effective than the militias. The QAnoners didn’t conspire with each other but they sure as hell were directed from the same place. And anti-mask protests were actually one place where a goodly number of rioters were radicalized, and those localized networks manifested as cells of cooperation in some key incidents in the riot.

More importantly, this claim can only have come from people who misunderstand what the investigation has shown:

Prosecutors have also not brought any charges alleging that any individual or group played a central role in organizing or leading the riot. Law-enforcement sources told Reuters no such charges appeared to be pending.

Conspiracy charges that have been filed allege that defendants discussed their plans in the weeks before the attack and worked together on the day itself. But prosecutors have not alleged that this activity was part of a broader plot.

It’s true that the Proud Boys are not known to have had a detailed plan describing who would move where in the Capitol. But it’s also true that both before and after the riot, the Proud Boys discussed mobilizing the “normies,” because normies have no adrenalin control. And the Proud Boys’ success at doing this is what made the initial assault on the West side of the Capitol work (and therefore the attack generally). The Proud Boys weren’t ordering the 1,000 rioters what to do at each step (though probably 100 people at the riot had some interaction with the Proud Boys), but they did give the riot a kind of structure that was crucial to its success.

Maybe Roger Stone isn’t involved?

Because of the other problems with this article, I don’t know what to make of the single piece of news in it. As noted above, a former senior law enforcement official claims that, “there was no grand scheme with Roger Stone and Alex Jones and all of these people to storm the Capitol and take hostages.” That makes sense with respect to Alex Jones; his videographer was arrested long ago and remains charged only with trespass.

But Stone has continued to appear in Oath Keeper filings long after the time that someone very senior would have left. And the two cooperators who might confirm or deny Stone’s involvement — Graydon Young (who did an Oath Keeper event with Stone in Florida) and Mark Grods (who was present with the Oath Keepers who were with Stone the day of the attack) — only pled guilty at the end of June, meaning if they confirmed Stone wasn’t involved (even in the planning for the attack known to have taken place in December, in Florida), it wouldn’t have happened all that long ago.

Particularly given the mention of kidnapping — which was a real question at the beginning of the investigation because of the zip ties that Larry Brock and Eric Munchel picked up inside the Capitol — this seems like a denial of a very dated misunderstanding of what happened.

I don’t think this story is meant maliciously. For example, I’m unimpressed with concerns raised about Tass’ ownership; this is Mark Hosenball and he’ll do the same reporting regardless of who signs his paycheck. Nor am I all that concerned by the anonymity of the sources; I’m more interested in how dated some of this information might be and which corners of the sprawling investigation those who actually worked on it were personally involved with.

It reads like the end result of a game of telephone asking questions that were raised in January, not a report about the investigation as public filings reveal it to be in August.

Update: DOJ just charged InfoWars host Owen Shroyer. The initial charges are just trespassing (leveraging a prior charge and Deferred Prosecution Agreement he entered), but he’s likely to be charged with obstruction based on stuff in his arrest affidavit.

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