Congress versus the Constitution: Merrick Garland’s Second Reconstruction

Early morning Eastern Time on January 6, I wrote a post arguing that Merrick Garland was a better Attorney General pick than a lot of people assumed. By the end of the day, the January 6 insurrection made him look like an even better pick, based on his successful prosecution of right wing terrorist Timothy McVeigh. When he testified on Monday, Garland surpassed even those expectations, in large part because he described as his mission the same one DOJ had when originally founded 151 years ago: protecting the rights of people of color in the face of right wing terrorism.

Celebrating DOJ’s 150th year reminds us of the origins of the Department, which was founded during Reconstruction, in the aftermath of the Civil War, to secure the civil rights promised by the 13th, 14th and 15th Amendments. The first Attorney General appointed by President Grant to head the new Department led it in a concerted battle to protect black voting rights from the violence of white supremacists, successfully prosecuting hundreds of cases against members of the Ku Klux Klan.

Almost a century later, the Civil Rights Act of 1957 created the Department’s Civil Rights Division, with the mission “to uphold the civil and constitutional rights of all Americans, particularly some of the most vulnerable members of our society.”

That mission remains urgent because we do not yet have equal justice. Communities of color and other minorities still face discrimination in housing, education, employment, and the criminal justice system; and bear the brunt of the harm caused by pandemic, pollution, and climate change.

150 years after the Department’s founding, battling extremist attacks on our democratic institutions also remains central to its mission. From 1995 to 1997, I supervised the prosecution of the perpetrators of the bombing of the Oklahoma City federal building, who sought to spark a revolution that would topple the federal government. If confirmed, I will supervise the prosecution of white supremacists and others who stormed the Capitol on January 6 — a heinous attack that sought to disrupt a cornerstone of our democracy: the peaceful transfer of power to a newly elected government.

This mission is all the more important — and optimistic — given the strains on Congress in the wake of January 6.

Given the delay caused by the former President’s attempted coup, impeachment, the delayed Senate organizing resolution, and a recess, this week, kicked off by Garland’s hearing, has been the first week where the 117th Congress has moved to account for the events of January 6. How Congress responds — and its effect on mid-term elections in 2022 — will have a key role in deciding whether the Republic survives Trump’s efforts to steal an election, or whether those events just harbor a decline into white supremacist authoritarianism.

How Congress responds to the events of January 6 is especially critical given disputes about the form of a 9/11 style commission to assess the event. Nancy Pelosi and Mitch McConnell disagree on key details: whether Democrats should have more representatives on the commission, and how broad the scope will be.

Senate Minority Leader Mitch McConnell slammed House Speaker Nancy Pelosi’s draft proposal for a commission to investigate the Jan. 6 attack on the U.S. Capitol, calling it “partisan by design.”

The Kentucky Republican said he agrees the siege on the Capitol warrants a “serious and thorough review,” but said he thinks Pelosi’s proposal falls short of the standard set by the commission established after the Sept. 11, 2001, terrorist attacks, upon which Pelosi said she would model this new panel.

“The 9/11 Commission was intentionally built to be bipartisan, 50-50 bipartisan split of the commissioners was a key feature,” McConnell said Wednesday on the Senate floor. “It both helped the effectiveness of the investigation itself, and help give the whole country confidence in its work, and its recommendations.”

It’s unclear whether the two sides can come up with a plan for a 9/11 type commission, both because there’s virtually no comity between the two parties and because Republicans have prioritized protecting Trump, their party, and the members of Congress who played a role (with another member implicated yesterday by her spouse’s Three Percenter truck decal). I suspect such a commission may have to wait until other events change the GOP’s current commitment to Donald Trump.

One thing that might change the GOP’s current capture by Trump is the DOJ investigation.

While there are some DOJ decisions that raise questions for me and while it is not yet clear how the courts will finally decide to treat January 6, Merrick Garland’s confirmation will presumably only raise confidence in DOJ’s actions. Virtually all members of the Senate Judiciary Committee, for example, praised his role in the prosecution of Timothy McVeigh during his confirmation hearing (see my live tweet here). Unless DOJ really bolloxes key cases — or unless they shy away from witnesses like James Sullivan, Ali Alexander, and Enrique Tarrio, who can tie the insurrection directly to Trump’s close associates — I expect the investigation and eventually prosecution of those responsible will make the GOP’s continued support of Trump far more toxic (as a few of the GOPers who’ve been censured for their vote to convict Trump have suggested will happen).

The prosecution of January 6 will be the easy part.

The real question, I think, is how Garland weathers GOP attempts to demand prosecutions that Billy Barr primed them to expect.

For example, numerous members (especially Lindsey Graham and Chuck Grassley, whose shared staffer Barbara Ledeen and her spouse were implicated in the Russian investigation) demanded that Garland promise to keep John Durham on, citing Barr’s promise to keep Mueller on during his confirmation hearing, at a point when Barr had already made public statements about the investigation while admitted he knew fuckall about the actual facts.

Garland repeated, over and over, that he can’t make such a commitment until he speaks with Durham. No one knows what Durham continues to pursue that has made his investigation last as long as the Mueller investigation. What is known is that Durham hasn’t interviewed key witnesses and his public filings exhibit fundamental misconceptions about the Russian investigation and precisely the kind of bias he purports to be investigating. Garland repeatedly answered that he didn’t know of any reason to remove Durham early. But he also noted that precisely what Graham and others are demanding about Page — some kind of investigation — happened with the Horowitz report. Notably, Garland knew a detail Republicans refuse to acknowledge: that Horowitz’s ongoing investigation into FISA reveals that the problems in the Carter Page Woods file were no different than other FISA applications, and the more general problems may be a pattern as well.

Given Garland’s emphasis on civil rights, I was at least as interested in Republican attempts to undermine such an effort. Most pathetically, John Kennedy engaged in a colloquy about whether systematic racism exists, whether he, himself, can be racist if he doesn’t think he is, “who wins,” as if equality is a zero sum game. Tom Cotton tried to play games about the difference between racial equality and racial equity.

Finally, there will be GOP pressure to either both-sides political violence, equating actions they claim without evidence were perpetuated by Antifa with January 6, or to limit the extent of the prosecution. With regards to the latter, Garland argued that this investigation will proceed like all investigations, working their way up if the evidence dictates it. That is a position utterly consistent with support for prosecuting Trump’s associates, or maybe even Trump.

With regards to efforts to both-sides political violence — which was Trump’s defense to impeachment and has already played a key role in Republican efforts to dodge accountability for their role in January 6 — Garland gave the kind of judicious answer to Josh Hawley that every Democrat should be prepared to offer. The violence in Portland was criminal (and to the extent it was, it was prosecuted). But it was not an attempt to interrupt the processes of government, such as by interrupting trials.

The Republicans have for years successfully pressured DOJ to try to criminalize their political opponents. As DOJ continues its massive investigation into the insurrection, these efforts will grow more urgent.

Merrick Garland will be confirmed without cowing to Republican efforts to equate their own assault on the Constitution with Democratic politics. But such efforts will intensify after he assumes office, particularly if Durham fails to find the crimes that really don’t exist and as DOJ gets closer to Trump or members of Congress. DOJ has about 18 months to right itself after Bill Barr’s damage, and we shall see how long Garland continues to retain the goodwill of Republicans.

“Stand Back and Stand By:” The Proud Boys Node of the January 6 Attack

As I and others have reported, a node of three people with ties to the Oath Keepers is, thus far, the first sign of a larger conspiracy charge in the government’s investigation of the January 6 insurrection.

It’s clear the government believes they can get there with the Proud Boys, either in conjunction with or parallel to the Oath Keepers. But they’re not there yet.

I want to lay out what they’ve shown about the Proud Boys operations thus far.

In addition to Enrique Tarrio (who was arrested before the riot for vandalizing a black church in December), the government has identified six people as Proud Boy adherents in affidavits (plus Robert Gieswein, who coordinated with them):

While some of these — notably, Bryan Bentancur, who lied to his parole officer about handing out bibles to excuse a trip to DC that day — were caught incidentally, it’s clear that Biggs and Pezzola were priorities, the former for his leadership role in the group and the latter for his appearance in videos breaking in a window with a police shield.

Between these affidavits, the government has provided evidence that the Proud Boys plan their operations in advance, with this quote from a Joe Biggs interview.

When we set out to do an event, we go alright, what is or main objective? And that’s the first thing we discuss. We take three months to plan an event. And we go, what’s our main objective? And then we plan around that, to achieve that main objective, that goal that we want.

In the case of the January 6 insurrection, that pre-planning involved creating a false flag to blame Antifa. The government showed this in a Tarrio message posted in December.

For example, on December 29, 2020, Tarrio posted a message on the social media site Parler1 about the demonstration planned for January 6, 2021. Among other things, Tarrio announced that the Proud Boys would “turn out in record numbers on Jan 6th but this time with a twist… We will not be wearing our traditional Black and Yellow. We will be incognito and we will be spread across downtown DC in smaller teams. And who knows….we might dress in all BLACK for the occasion.” I believe the statement about dressing in “all BLACK” is a reference to dressing like the group known as “Antifa,” who the Proud Boys have identified as an enemy of their movement and are often depicted in the media wearing all black to demonstrations.

And the government showed agreement between Tarrio and Biggs with this similar message from Biggs.

On or around the same day, BIGGS posted a similar message to his followers on Parler in which he stated, among other things, “we will not be attending DC in colors. We will be blending in as one of you. You won’t see us. You’ll even think we are you . . .We are going to smell like you, move like you, and look like you. The only thing we’ll do that’s us is think like us! Jan 6th is gonna be epic.” I understand that BIGGS was directing these statements at “Antifa.”

Daniel Goldwyn, texting that day, addressed the claim of a false flag on texts.

The government provided evidence that members of the Proud Boys had followed the false flag plan, with pictures of the men marching through DC “incognito” before the insurrection.

On January 6, 2021, an individual that I have identified as BIGGS and a group of people that hold themselves out as Proud Boys were depicted on the east side of the U.S. Capitol. Consistent with the directive issued by organizers of the Proud Boys, including Tarrio and BIGGS, none of the men pictured are wearing Proud Boys colors of black and yellow, but are instead dressed “incognito.” Indeed, BIGGS, wearing glasses and a dark knit hat, is dressed in a blue and grey plaid shirt.

In Biggs’ affidavit (the most recent of the six), the government also provided evidence of communications between members during the attack.

Your affiant has reviewed additional footage from the events inside the U.S. Capitol. In one image, shown below, Pezzola appears to have what I believe to be an earpiece or communication device in his right ear. In my experience, such a device could be used to receive communications from others in real time. Your affiant also notes that multiple individuals were photographed or depicted on videos with earpieces, including other individuals believed to be associated with the Proud Boys. For instance, in the picture of the Proud Boys referenced above in Paragraph 13, an individual believed to be part of the group is pictured wearing a similar earpiece.

Your affiant has also identified certain Proud Boys at the U.S. Capitol on January 6, 2021, who appear to have walkie-talkie style communication devices. For instance, in the picture of the Proud Boys referenced above in Paragraph 13, both BIGGS and the individual next to him have such devices on their chests.

Gabriel Garcia is described as captain by another of the men (though it’s unclear whether thank rank was replicated in the group).

Additionally, on January 8, 2021, the FBI received information from the public regarding a separate subject (“S-1”). S-1 uploaded to Facebook pictures of himself inside of the Capitol building on January 6, 2021. As FBI Agents reviewed the evidence related to that report, they discovered that S-1 posted a status on Facebook tagging GARCIA and calling him “El Capitan.” The caption reads, “El Capitan doing his duty. Gabriel Garcia.” Systems checks reveal that GARCIA is a former captain in the United States Army. GARCIA also uses the handle “Captain” as his display name on the social media platform Telegram

Affidavits provide two different descriptions of Pezzola being among the first to break into the Capitol.

One such video depicts an individual, now identified as Proud Boys member Dominic Pezzola, breaking the window of the U.S. Capitol Building with a clear plastic shield at approximately 2:13 p.m.3 Shortly after the glass in the window is broken, an unidentified individual can be heard yelling words to the effect of, “Go, Go, Go!” Several individuals enter the building through the broken window, including Pezzola. A nearby door was opened and a crowd of people began to enter the U.S. Capitol.

This one comes from the Pezzola affidavit.

On January 8, 2021, FBI received a lead depicting publicly available photographs and videos of an unknown individual breaking the window of the U.S. Capitol Building, which is located in Washington, D.C., with a clear plastic shield, and then entering the Capitol building. According to time and date stamps, this occurred on January 6, 2021, at approximately 2:39 p.m.. Below are screen shots from one such video. In the video, soon after the glass in the window is broken, an unidentified individual can be heard yelling words to the effect of, “Go, Go, Go!” The individual with the shield is depicted in the video as entering the Capitol building, while still holding the shield. The screen shot on the left shows the individual breaking the window, and the screen shot on the right, which is taken seconds after the other screenshot, shows his face.

The government has provided some (albeit thus far, scant) evidence that one plan was to target members of Congress, which Garcia calling Pelosi out personally.

Approximately 35 seconds into the video, GARCIA says loudly, “Nancy come out and play.”

There is a witness (who may not be entirely reliable) describing the group to be armed.

W-1 stated that other members of the group talked about things they had done during the day, and they said that anyone they got their hands on they would have killed, including Nancy Pelosi. W-1 further stated that members of this group, which included “Spaz,” said that they would have killed [Vice President] Mike Pence if given the chance. According to W-1, the group said it would be returning on the “20th,” which your affiant takes to mean the Presidential Inauguration scheduled for January 20, 2021, and that they plan to kill every single “m-fer” they can.1 W-1 stated the men said they all had firearms or access to firearms.

In Biggs’ affidavit, the government describes Biggs disclaiming having any advance plan.

On or about January 18, 2021, BIGGS spoke with agents of the FBI after video emerged online of him inside the U.S. Capitol. BIGGS stated, in substance and in part, that he was present in Washington, D.C. for the demonstration on January 6, 2021. BIGGS admitted to entering the Capitol building on January 6, 2021, without forcing entry. BIGGS informed the interviewing agent that the doors of the Capitol were wide open when he made entry into the building. BIGGS denied having any knowledge of any pre-planning of storming the Capitol, and had no idea who planned it.

And in two cases, the government has provided evidence that the group was responding to Trump’s orders.

On November 16, 2020, OCHS made a post to the social media site Parler, in which he forwarded a Tweet by President Trump declaring, “I WON THE ELECTION!” and OCHS stated, “Show this tweet to leftists and say they won’t do shit when he just keeps being president. Don’t say it was stolen or rigged. Just say we’re doing it and they won’t fight back. They are getting scared, and they don’t function when they’re scared.

In Goodwyn’s case, the government shows him adopting Trump’s avatar on Twitter and repeating Trump’s own line from the debate, “Stand back and stand by.”

Again, this is just what’s public two weeks after the attack, and just those whom the government identified as members. There are others (notably John Sullivan, whose brother has not been arrested but who has ties to the group), who would be obvious candidates to flip to learn more about the group, and there are some tangential figures not included here.

This route is one of the most likely ones via which the government will tie the violence to those close to Trump trying to undermine the election and — with Trump’s “Stand back and stand by” comment — possibly even Trump.

Update: Corrected how Pezzola broke in.

Update: Tarrio was also offering to pay for lawyers for people.

Update, 1/26: I’ve added Robert Gieswein to this list, based on this WSJ video showing him involved throughout the day with the Proud Boys.

Update, 1/27: I’ve added Andrew Bennett, who was described as wearing a Proud Boy hat in his affidavit.

Impeaching Donald John Trump — Again [UPDATE-3]

[NB: Check the byline. Updates will be posted at the bottom. /~Rayne]

The House is now voting on H.R. 24 to impeach Trump for high crimes and misdemeanors.

At 4:24 p.m. ET the vote stands at 228 Yea, 194 Nay, with 11 Not Voting or as-yet uncast votes.

There was a report that no GOP House member from North Carolina was present, which may boost the NV number higher than expected.

~ ~ ~

UPDATE-1 — 4:36 PM ET   — 

House members are being asked if they have voted and if any of them wants to vote. There’s no change.

H.R. 24 passes, 231 Yeas (including 10 GOP votes) to 197 Nays with 5 Not Voting.

Donald John Trump has been impeached a second time during his term, this time for High Crimes and Misdemeanors.

~ ~ ~

UPDATE-2 — 4:50 PM ET —

In comments below I said I’d like to know how many phone calls there were from the White House to GOP reps over the last 24 hours.

Rep. Jason Crow told MSNBC, “I had a lot of conversations with my Republican colleagues. … A couple of them broke down in tears … saying that they are afraid for their lives if they vote for this impeachment.”

Sure sounds like the White House may have extorted Nays from GOP representatives considering the level of fear Crow shared.

In other words, even as the House was preparing to vote to impeach Trump for High Crimes and Misdemeanors, he may well have been committing more crimes.

House whip Steny Hoyer committed to sending H.R. 24 immediately to the Senate for action. What happens next is on Senate Majority Leader Mitch McConnell, who has been making noises which sound supportive of conviction — but this is McConnell, who has so far done nothing during the last four years to the benefit of the country and in defense of the Constitution, sucking up instead to Trump or the corporate donor class.

Who will McConnell suck up to with this resolution? Will he ignore the clear and present danger Trump poses to national security every moment he remains in power between now and noon ET on January 20?

~ ~ ~

UPDATE-3 — 2:25 AM ET 14-JAN-2021 —

The final vote count was 232-197, with the following GOP representatives voting for impeachment:

Adam Kinzinger (IL)
Liz Cheney (WY)
John Katko (NY)
Fred Upton (MI)
Jaime Herrera Beutler (WA)
Dan Newhouse (WA)
Peter Meijer (MI)
Anthony Gonzalez (OH)
Tom Rice (SC)
David Valadao (CA)

Nice that two were from my state, Michigan, and one of the two a freshman; still, Michigan had five Trump-y GOP representatives who voted No.

These members did not vote:

Kay Granger (TX)
Andy Harris (MD)
Greg Murphy (NC)
Daniel Webster (FL)

All four are GOP representatives.

This past weekend Senate Majority Leader toyed around with GOP donors — or perhaps with Trump — indicating he had left Team Trump’s camp.

McConnell spoke to major Republican donors last weekend to assess their thinking about Trump and was told that they believed Trump had clearly crossed a line, the strategist said. McConnell told them he was finished with Trump, according to the consultant.

After the impeachment vote McConnell issued this statement saying the earliest he can start a trial is next week.

It’s not like there’s a clear and present danger to national security in the White House which has encouraged the assassination of the Vice President and members of Congress including the next couple of people in the line of presidential succession.

I wonder what McConnell received in exchange for refusing to move to an emergency session to take up the trial.

I’d also like to know what the big GOP donors think of McConnell’s foot dragging. The number of corporate PACs which have said they won’t donate to seditionist members of Congress has grown and includes Fortune 100 companies; how do they feel about McConnell leaving national security hanging as it is for another week?

House Speaker Pelosi named the impeachment managers Tuesday; the nine House members are a good lineup of attorneys including litigators, public defenders, and prosecutors:

Jamie Raskin (MD), lead
Diana DeGette (CO)
David Cicilline (RI)
Joaquin Castro (TX)
Eric Swalwell (CA)
Ted Lieu (CA)
Stacey Plaskett (VI)
Joe Neguse (CO)
Madeleine Dean (PA)

Let’s hope they make a tight and impactful case for conviction though Trump did a pretty good job all by himself, caught entirely on camera a little after noon on January 6, exhorting the rioters to show strength and march on the Capitol Building.

It’s a pity the seditionist caucus can’t be tried at the same time. Every member of Congress who aided and abetted this insurrection should be expelled; their districts and states deserve better representation from people who take their oath of office seriously, including protecting the Constitution from all enemies foreign and domestic.

Once Again Trump’s Self-Victimhood Distracts from His Negligence

It will be the subject of extensive discussion going forward how plans for an insurrection made in plain sight on social media went from being viewed, by the FBI and DHS, as First Amendment protected speech to so dangerous that social media shut down key influencer accounts and Apple and Google kicked entire platforms out of their stores within days. But that’s what happened.

On Thursday, a various law enforcement agencies tried to explain why they had allowed the Capitol to be overrun by terrorists, they claimed not to have seen the signs many of us were seeing of plans for violence.

Federal and local officials said Thursday they did not have intelligence suggesting any violent mob was preparing to attack the Capitol, even as demonstrators were publicly saying on social media they were not planning a typical protest.

Despite weeks of preparations, “obviously, what happened no one anticipated,” Michael Sherwin, acting US Attorney for the District of Columbia, told reporters in a telephone press conference Thursday. “Things could have been done better.”

[snip]

Police were caught flat-footed the next day. DC Police Chief Robert Contee told reporters Thursday there was no intelligence that suggested there would be a breach of the US Capitol on January 6. Three DHS sources, who usually receive such reports, were unaware of a threat assessment being shared from the DHS intelligence office ahead of Wednesday’s siege.

But just over a day later, Apple announced that it was giving Parler 24 hours to come into compliance with its moderations guidelines; Google just removed Parler from its stores entirely. Twitter first removed various QAnon supporters, including Sidney Powell and Mike Flynn. Then, finally, after allowing him to Tweet twice after a short-term ban, Twitter announced it was removing Trump permanently and those social media platforms that hadn’t already done so removed Trump as well.

Trump spent the night trying to find workarounds, using the POTUS account, attempting to have one of his sons tweet out his content, and having his social media staffer tweet on his own account. Unless the Tweet included a presidential message, the content was removed.

In response, Trump, his supporters, and the usual commentariat have decried a purportedly authoritarian “censorship” of Donald Trump. Indeed, most of the discussion since then has focused on whether Twitter and other social media platforms acted appropriately.

That has, as has happened so many times in the last four years, distracted from Trump’s own refusal to act.

Here’s Twitter’s description of why it found that Trump had violated Twitter’s Glorification of Violence prohibition.

Overview

On January 8, 2021, President Donald J. Trump tweeted:

“The 75,000,000 great American Patriots who voted for me, AMERICA FIRST, and MAKE AMERICA GREAT AGAIN, will have a GIANT VOICE long into the future. They will not be disrespected or treated unfairly in any way, shape or form!!!”

Shortly thereafter, the President tweeted:

“To all of those who have asked, I will not be going to the Inauguration on January 20th.”

Due to the ongoing tensions in the United States, and an uptick in the global conversation in regards to the people who violently stormed the Capitol on January 6, 2021, these two Tweets must be read in the context of broader events in the country and the ways in which the President’s statements can be mobilized by different audiences, including to incite violence, as well as in the context of the pattern of behavior from this account in recent weeks. After assessing the language in these Tweets against our Glorification of Violence policy, we have determined that these Tweets are in violation of the Glorification of Violence Policy and the user @realDonaldTrump should be immediately permanently suspended from the service.

Assessment

We assessed the two Tweets referenced above under our Glorification of Violence policy, which aims to prevent the glorification of violence that could inspire others to replicate violent acts and determined that they were highly likely to encourage and inspire people to replicate the criminal acts that took place at the U.S. Capitol on January 6, 2021.

This determination is based on a number of factors, including:

  • President Trump’s statement that he will not be attending the Inauguration is being received by a number of his supporters as further confirmation that the election was not legitimate and is seen as him disavowing his previous claim made via two Tweets (1, 2) by his Deputy Chief of Staff, Dan Scavino, that there would be an “orderly transition” on January 20th.
  • The second Tweet may also serve as encouragement to those potentially considering violent acts that the Inauguration would be a “safe” target, as he will not be attending.
  • The use of the words “American Patriots” to describe some of his supporters is also being interpreted as support for those committing violent acts at the US Capitol.
  • The mention of his supporters having a “GIANT VOICE long into the future” and that “They will not be disrespected or treated unfairly in any way, shape or form!!!” is being interpreted as further indication that President Trump does not plan to facilitate an “orderly transition” and instead that he plans to continue to support, empower, and shield those who believe he won the election.
  • Plans for future armed protests have already begun proliferating on and off-Twitter, including a proposed secondary attack on the US Capitol and state capitol buildings on January 17, 2021.

As such, our determination is that the two Tweets above are likely to inspire others to replicate the violent acts that took place on January 6, 2021, and that there are multiple indicators that they are being received and understood as encouragement to do so.

Effectively, Twitter is saying that these Tweets have been exploited by the terrorists supporting Trump as support for further violence. It specifically described plans, being made both on and off Twitter, for a follow-on attack no January 17 (apparently because Q is the 17th letter in the alphabet).

Twitter is not actually arguing that Trump intended to incite violence. Rather, they’re saying that his Tweets are being interpreted as encouragement of more violence that is already being actively planned, regardless of what Trump actually meant by it.

Now, maybe Trump didn’t intend that to be the effect, though Twitter makes a fair point that both the reference to a “GIANT VOICE” in the future — one that may depend on further terrorism — and the formal announcement that the inauguration could be targeted without endangering Trump himself might be seen as inviting more violence.

But if he didn’t mean to do so, the proper response of any marginally responsible adult would be to say, “Golly, I didn’t realize how my own words were being used in ways I didn’t intend. Let me take the next few weeks off to cool off, or better yet, let me find other ways to correct any misinterpretation that I supported violence.” The appropriate response for the Commander in Chief would be to say, “Wow, that was a totally unprecedented attack on our Capitol the other day, I’m deploying all the resources of the Federal government to ensure these planned follow-up attacks will not take place.”

Have you noticed that Trump hasn’t actually said he has ordered the government to prevent further violence?

That’s all the more alarming, given that US law enforcement agencies increasingly share intelligence with the social media platforms, which suggests that Twitter’s reference to “a number of factors” doesn’t rule out specific intelligence about follow-on plans that aren’t visible on social media.

Twitter said, tucked away there in a fifth bullet, that one of the reasons they (and presumably Facebook and Apple and Google and everyone else) acted is because there are specific plans for future terrorist attacks.

And instead of talking about the fact that the man who remains President is doing nothing to prevent those follow-on attacks, we’re talking about what a victim he is.

Timing Matters: Impeach, Convict, Remove NOW [UPDATE-1]

[NB: Check the byline, thanks. Updates will appear at the bottom of this post. /~Rayne]

Photos taken during the insurrectionist Capitol Building breach on Wednesday showed a lot of riot tourism — “Look at me, Mom!” kind of behavior which causes reparable damage while irritating observers. The jerk sitting in House Speaker Nancy Pelosi’s chair with his feet on her desk is a perfect example.

But some photos showed participants who weren’t flashy, who weren’t taking selfies. They appeared intent on some objective and they were well equipped, wholly unlike the bare-chested, tattooed Qultist clown Jake Angeli.

Angeli was attention whoring.

This guy was not:

(Believe this is a cropped photo from Getty Images, shared here under Fair Use.)

Malcolm Nance noted this same person was carrying an “olive colored Blackhawk Sherpa pistol holster with a Glock 26 or 43 subcompact pistol w/hogue rubber grips, mace & Flex-cuffs” which is far from the average riot tourist’s gear. There has been speculation it’s not a Glock but a holstered taser, though the consensus appears to be that it’s a weapon.

The photo shows someone intent on doing more than a little light vandalism. They are equipped to kidnap, detain, and possibly hurt or kill someone.

They need to be identified, their situation fully investigated, and prosecuted to the fullest extent of the law.

This isn’t something which should be blown off lightly; this person was in the Senate chamber where two of the next three in line of presidential succession — VP Mike Pence and Sen. Chuck Grassley — had been only moments before, in the same building with third-in-line, House Speaker Nancy Pelosi.

There were others as well who may not have been quite as well equipped but carrying some gear like plastic zip restraints, suggesting they, too, were intent on seizing members of Congress and staff.

Until an investigation is completed, we don’t know if we haven’t just looked upon an aborted kidnapping and/or assassination attempt.

We don’t know yet how the “mobile bomb factoryfound by law enforcement figured into this picture:

… The chief also confirmed that police recovered two pipe bombs at the Democratic National Committee and Republican National Committee offices. A cooler that contained molotov cocktails also was found on U.S. Capitol grounds, the chief said. Bowser said officials will review video and issue lookout alerts for people who breached the U.S. Capitol, adding that they “need to be held accountable for the carnage.”

Federal agents also are investigating a pickup truck found outside the RNC, according to two people familiar with the investigation.

The truck, parked across the street from the party offices and near the entrance to a Metro station, contained rifles and shotguns, a great deal of ammunition, and other unspecified material, these people said. Federal agents are still trying to determine if that vehicle and its contents are connected to the suspected pipe bombs found earlier, the people said. …

This could have been extremely ugly had riot members been able to occupy and control the Capitol Building through the night.

Trump should not be allowed to pardon these people if he and his associates and family had anything to do with this — like Rudy Giuliani’s incitement calling for “trial by combat” on stage before Trump supporters that day.

The only way to ensure there is no pardon granted by Trump before an investigation is complete is to remove Trump from office.

Immediately.

GOP members of Congress: You need to take this seriously and consider where you and members of your cohort stand. There may be those among them who are complicit, who may have no problem with eliminating their fellow members who aren’t as Trumpist as they are. Until a full investigation is completed there’s no way to know, and no way to protect themselves from a possible second attack-masked-by-riot.

And there’s a second event in the offing. It’s right there in all the chatter online about the January 6 mob.

Impeach, convict, remove Trump NOW, because it’s critical to protecting the continuity of our government under the Constitution about which you swore an oath to defend.

It’s also your skin in the game.

Consider how this scenario looks to others and whether the damage would have been limited to Democratic members of Congress alone.

Next time Congress and the VP might not be so lucky. Remove luck from the equation by removing the source of incitement NOW.

~  ~ ~

UPDATE-1 — 5:10 PM ET —

The Washington Post released video showing the lead up to and the shooting of rioter Ashli Babbit. At least one member of Congress, Rep. Sean Maloney (D-NY-18), is visible at the beginning of the video before they are removed to a secure location and the rioters breach the door.

Impeachment still has traction if slow. Another set of articles of impeachment have been released, this time charging Incitement to Insurrection instead of Abuse of Power. Sorry, I don’t have time right now to type out a transcript, sharing a tweet with screen shots for now.

Pence entered the White House but apparently didn’t speak to Trump, and Sen. Lisa Murkowski is the first GOP senator to demand Trump resign, questioning her own future with the GOP.

One can only hope the news dump zone is kind to us.

Bill Barr Keeps Pretending (Falsely) That He Didn’t Encourage Yesterday’s Insurrection

Disgraced former Attorney General Billy Barr has released two statements condemning yesterday’s terrorist attack on the Capitol. First, a comment released via his spox,

Then he released a statement to the AP’s Barr-chummy DOJ reporter:

Former Attorney General William Barr says President Donald Trump’s conduct as a violent mob of his supporters stormed the U.S. Capitol was a “betrayal of his office and supporters.”

In a statement to The Associated Press, Barr said Thursday that “orchestrating a mob to pressure Congress is inexcusable.”

Barr was one of Trump’s most loyal and ardent defenders in the Cabinet.

His comments come a day after angry and armed protesters broke into the U.S. Capitol, forcing Congress members to halt the ongoing vote to certify President-elect Joe Biden’s election and then flee from the House and Senate chambers.

Barr resigned last month amid lingering tension over the president’s baseless claims of election fraud and the investigation into Biden’s son.

Of course, Barr himself encouraged the violence yesterday.

That’s because, less than a year ago, he treated a threat against a sitting judge issued by some of the men who organized yesterday’s actions as a “technicality” not worthy of a sentencing enhancement for Roger Stone.

Two years ago, after Roger Stone posted a picture of Amy Berman Jackson with crosshairs on it, Jonathan Kravis asked Stone who came up with the picture. The President’s rat-fucker named two of his buddies who are key leaders of the Proud Boys, Jacob Engles and Enrique Tarrio.

Amy Berman Jackson. How was the image conveyed to you by the person who selected it?

Stone. It was emailed to me or text-messaged to me. I’m not certain.

Q. Who sent the email?

A. I would have to go back and look. I don’t recognize. I don’t know. Somebody else uses my —

THE COURT: How big is your staff, Mr. Stone?

THE DEFENDANT: I don’t have a staff, Your Honor. I have a few volunteers. I also — others use my phone, so I’m not the only one texting, because it is my account and, therefore, it’s registered to me. So I’m uncertain how I got the image. I think it is conceivable that it was selected on my phone. I believe that is the case, but I’m uncertain.

THE COURT: So individuals, whom you cannot identify, provide you with material to be posted on your personal Instagram account and you post it, even if you don’t know who it came from?

THE DEFENDANT: Everybody who works for me is a volunteer. My phone is used by numerous people because it can only be posted to the person to whom it is registered.

[snip]

Jonathan Kravis. What are the names of the five or six volunteers that you’re referring to?

Stone. I would — Jacob Engles, Enrique Tarrio. I would have to go back and look.

Not only did Stone appear at the rally before yesterday’s insurrection, but Tarrio was arrested on his way to the riot for crimes he committed during the last demonstration in support of Trump, an attack on a historic Black church in DC and possession of weapons.

Prosecutors asked Judge Jackson to add a two-level sentencing enhancement for this action, in which Stone’s Proud Boys associates crafted a threat against her.

Finally, pursuant to U.S.S.G. § 3C1.1, two levels are added because the defendant “willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the prosecution of the instant offense of conviction.” Shortly after the case was indicted, Stone posted an image of the presiding judge with a crosshair next to her head. In a hearing to address, among other things, Stone’s ongoing pretrial release, Stone gave sworn testimony about this matter that was not credible. Stone then repeatedly violated a more specific court order by posting messages on social media about matters related to the case.

This enhancement is warranted based on that conduct. See U.S.S.G. § 3C1.C Cmt. 4(F) (“providing materially false information to a magistrate or judge”); see, e.g., United States v. Lassequ, 806 F.3d 618, 625 (1st Cir. 2015) (“Providing false information to a judge in the course of a bail hearing can serve as a basis for the obstruction of justice enhancement.”); United States v. Jones, 911 F. Supp. 54 (S.D.N.Y. 1996) (applying §3C1.1 enhancement to a defendant who submitted false information at hearing on modifying defendant’s conditions of release).

The sentencing memo that Bill Barr had drawn up to justify a more lenient sentence dismissed this enhancement which it admitted “technically” applied.

Notably, however, the Sentencing Guidelines enhancements in this case—while perhaps technically applicable— more than double the defendant’s total offense level and, as a result, disproportionately escalate the defendant’s sentencing exposure to an offense level of 29, which typically applies in cases involving violent offenses, such as armed robbery, not obstruction cases. Cf. U.S.S.G. § 2B3.1(a)-(b).

[snip]

Second, the two-level enhancement for obstruction of justice (§ 3C1.1) overlaps to a degree with the offense conduct in this case. Moreover, it is unclear to what extent the [defendant’s obstructive conduct actually prejudiced the government at trial.]

When ABJ gagged Stone in response to him posting the picture, she talked about the possibility that Stone’s post might incite his extremist followers to take action.

What concerns me is the fact that he chose to use his public platform, and chose to express himself in a manner that can incite others who may feel less constrained. The approach he chose posed a very real risk that others with extreme views and violent inclinations would be inflamed.

[snip]

The defendant himself told me he had more than one to choose from. And so what he chose, particularly when paired with the sorts of incendiary comments included in the text, the comments that not only can lead to disrespect for the judiciary, but threats on the judiciary, the post had a more sinister message. As a man who, according to his own account, has made communication his forté, his raison d’être, his life’s work, Roger Stone fully understands the power of words and the power of symbols. And there’s nothing ambiguous about crosshairs.

She repeated that sentiment when she overruled the Barr-authorized memo, judging the enhancement was appropriate.

Here, the defendant willfully engaged in behavior that a rational person would find to be inherently obstructive. It’s important to note that he didn’t just fire off a few intemperate emails. He used the tools of social media to achieve the broadest dissemination possible. It wasn’t accidental. He had a staff that helped him do it.

As the defendant emphasized in emails introduced into evidence in this case, using the new social media is his “sweet spot.” It’s his area of expertise. And even the letters submitted on his behalf by his friends emphasized that incendiary activity is precisely what he is specifically known for. He knew exactly what he was doing. And by choosing Instagram and Twitter as his platforms, he understood that he was multiplying the number of people who would hear his message.

By deliberately stoking public opinion against prosecution and the Court in this matter, he willfully increased the risk that someone else, with even poorer judgment than he has, would act on his behalf. This is intolerable to the administration of justice, and the Court cannot sit idly by, shrug its shoulder and say: Oh, that’s just Roger being Roger, or it wouldn’t have grounds to act the next time someone tries it.

Effectively, ABJ was warning against precisely what happened yesterday: that Stone (and Trump) would rile up extremists and those extremists would, predictably, take violent actions. ABJ judged that you can’t let the incitement go unpunished.

Barr, on the other hand, suggested that unless there was proof the incitement had an effect, it was just a technicality.

Bill Barr had a chance to stand against the incitement-driven terrorism led by the Proud Boys last year. And he chose to use his authority, instead, to protect Trump.

The Trump Effect: Attempted Coup Edition

I have long talked about “The Trump Effect,” by which Trump, in pushing existing policies an order of magnitude further, makes those toxic policies visible to people who otherwise have not seen them.

Yesterday’s coup attempt was not the implementation of any existing policy. What happened yesterday was unprecedented in the history of this nation.

That said, it did make certain things visible.

The DOD refusal to honor a request from Mayor Muriel Bowser, made before the coup attempt started, to deploy the National Guard to DC to help makes it clear (as did Trump and Bill Barr’s deployment of DOD troops over the summer) that DC cannot be left anymore without its own defense. As many people have noted, this provides a clear reason, independent of the number of Senators or the existence of a largely-Black city without full franchise, that DC should become a state.

Similarly, the refusal of DC cops, including Capitol Police, to treat these terrorists as terrorists demonstrates why people have called to “defund” the police. It’s not denial that we need police. It’s a recognition that, right now, police forces are often filled with extremists who sympathize with people like the terrorists who stormed the Capitol. There needs to be a priority on cleansing police forces of such extremists, or they will become an armed force working against democracy again.

Finally (in what appears to be a surprise to a guy who wrote a book on the topic and who has been dismissing the threat of a coup for months), what we saw yesterday was what happens when a man who puts self-interest over the good of the country happens to wield the power of the unitary executive. While some people appointed by Donald Trump took the appropriate approach in responding to the coup attempt — citing their oath to the Constitution — others dawdled until Mike Pence took action. It will take some time until we understand their excuse for protecting a man rather than the Constitution. But decades of claims that all authority emanates from the President certainly made it more likely. Last night made it clear that such unchecked authority is incompatible with the Constitution.

We are not yet out of the woods. Trump, even while stating he will leave office, nevertheless has promised to sustain his insurgency. On top of everything else President-Elect Biden has to deal with, he now has to think of ways to coup-proof the US government.

Update: Mayor Bowser has called for Congress to push statehood through in the first 100 days of the Biden Administration.

 

Yet Another Warning from Michigan: FBI Busted Plot to Kidnap “That Woman”

As you’ve probably heard by now, the FBI foiled a plot to kidnap Michigan’s Gov. Gretchen Whitmer. The conspirators intended to move her across state lines to Wisconsin where she would be tried by a kangaroo court for “treason.”

Timing of the plot and events which may have inspired this idiocy:

10-MAR-2020 — Governor Whitmer issued Executive Order 2020-4, declaring a state of emergency in Michigan to address the COVID-19 pandemic.

13-MAR-2020 — Gov. Whitmer issued Executive Order 2020-5 canceling all events and assemblies over 250 people, ending on Sunday, April 5 at 5 p.m. Michigan’s public schools and churches were closed with this order.

16-MAR-2020 — Gov. Whitmer issued Executive Order 2020-9, closing places of public accommodation including restaurants, bars, gymnasiums, theaters through March 30.

20-MAR-2020 — Militia group in Michigan brought to attention of FBI when group sought addresses of local law enforcement. A Confidential Human Sources (CHS) was identified during FBI interview with a concerned militia member.

23-MAR-2020 — Gov. Whitmer issued “Stay Home, Stay Safe” Executive Order 2020-21, directing all Michigan businesses and operations to temporarily suspend in-person operations that are not necessary to sustain or protect life, effective immediately.

27-MAR-2020 — During a press conference discussing Pence’s work as head of the White House Coronavirus Task Force, Trump tells VP Pence, “Don’t call the woman in Michigan.”

01-APR-2020 — Gov. Whitmer issued Executive Order 2020-33 expanding Executive Order 2020-4, declaring both a state of emergency and a state of disaster across the state of Michigan.

07-APR-2020 — Michigan legislature adopted a concurrent resolution to extend the states of emergency and disaster declared under the Emergency Management Act until April 30, 2020.

09-APR-2020 — First extension of Stay-Home order until May 1 due to rising COVID cases.

15-APR-2020 — Drive-in “Operation Gridlock” Protest in capital city Lansing, violating Stay-Home order; organizer received financial assistance from DeVos family.

17-APR-2020 — Trump tweeted, “LIBERATE MICHIGAN!

24-APR-2020 — Second extension of Stay-Home order until May 15 due to increased COVID cases. Some restrictions were lifted on outdoor businesses. Masks ordered for all residents in public spaces.

30-APR-2020 — Armed protest in state capitol building

06-MAY-2020 — GOP-majority state house and state senate file suit against Gov. Whitmer (Michigan House of Representatives and Michigan Senate v. Whitmer)

08-MAY-2020 — Third extension of Stay-Home order until May 28. Some restrictions lifted on manufacturing as of 11-MAY-2020 as part of a phased re-opening.

21-MAY-2020 — Michigan Court of Claims ruled in favor of Gov. Whitmer in Michigan House of Representatives and Michigan Senate v. Whitmer; the state of emergency would continue without legislative approval.

22-MAY-2020 — Fourth extension of Stay-Home order until June 12. State of emergency also extended to June 19. Two northern Michigan regions were able to reopen, allowing restaurants and bars to operate at 50% capacity. Groups of 10 were permitted across the state.

01-JUN-2020 — Stay-Home order lifted with restrictions, ex. groups of 100 outdoors, outdoor fitness classes, etc.

06-JUN-2020 — Meeting of ~15 co-conspirators in Dublin, Ohio.

08-JUN-2020 — Restaurants allowed to reopen and operate across the state at 50% capacity with other mandatory changes like masks and social distancing.

08-JUN-2020 — On reopening, Harper’s brewpub restaurant in East Lansing, Michigan, violated several of the remaining emergency restrictions. Over the next month at least 185 cases of COVID will have been traced back to this facility’s reopening.

14-JUN-2020 — A key co-conspirator and a militia group member meet at a militia field training exercise.

15-JUN-2020 — Stay-Home order ends. Some restrictions remain on events and assemblies as well as public accommodation facilities.

18-JUN-2020 — Gov. Whitmer issued Executive Order 2020-127, again finding that the COVID-19 pandemic constitutes a disaster and emergency throughout the State of Michigan.

18-JUN-2020 — Co-conspirators met with militia group leadership at the Second Amendment rally at the state capitol in Lansing, Michigan.

20-JUN-2020 — Several co-conspirators met at a co-conspirator’s business in Grand Rapids for planning.

25-JUN-2020 — Key co-conspirator streams a rant about Gov. Whitmer to a private Facebook group.

28-JUN-2020 — Several co-conspirators met in Munith, Michigan for a tactical training
exercise.

04-06-JUL-2020 — Holiday weekend partying results in uptick of COVID cases.

10-12-JUL-2020 — Co-conspirators attended a field training exercise in Cambria, Wisconsin which included attempting to make IEDs with balloons, BBs, and black powder.

13-JUL-2020 — Gov. Whitmer issued Executive Order 2020-147, mandating the wearing of masks to contain spread of COVID-19.

18-JUL-2020 — Co-conspirators met in Ohio, discussed attacking Michigan State Police and shooting up Gov. Whitmer’s vacation home in western lower Michigan.

27-JUL-2020 — Co-conspirators discussed plan to kidnap Gov. Whitmer at vacation home, transport her to Wisconsin, and prosecute her.

09-AUG-2020 — Co-conspirators discussed obtaining intelligence about Gov. Whitmer’s Lansing home as well as attacking her at that site.

18-AUG-2020 — Co-conspirators discussed surveillance of Gov. Whitmer’s vacation home and getaway plans.

23-AUG-2020 — Co-conspirators discussed surveillance while meeting in Lake Orion, Michigan.

29-AUG-2020 — Co-conspirator and CH-2 surveil Gov. Whitmer’s vacation home.

30-AUG-2020 — Co-conspirators discuss findings of surveillance.

12-13-SEP-2020 — Co-conspirators meet in Luther, Michigan for field training exercise and practice making and using IEDs as well as tighten planning and coordination.

14-SEP-2020 — Co-conspirators discuss executing plan in late October, well before Election Day.

30-SEP-2020 — Co-conspirators discuss acquiring taser for plan.

02-OCT-2020 — Key co-conspirator confirms acquisition of taser.

06-OCT-2020 — In a 4-3 ruling along partisan lines, Michigan Supreme Court determined Gov. Whitmer did not have the authority to issue COVID-related executive orders after April 30, 2020.

07-OCT-2020 — Co-conspirators planned to meet to make payments on equipment.

07-OCT-2020 — Co-conspirator Garbin’s house was raided.

09-OCT-2020 — Arrest of ‘Wolverine Watchmen’ conspirators announced, complaint published.

I use word inspired loosely, because there doesn’t seem to be a direct link between the most aggressive emergency action and the inception and progress of this seditious terror plot. The emergency Stay-Home order was lifted the week the conspirators began planning; what restrictions remained clearly did not stop these men from traveling, meeting, organizing, and planning.

They also didn’t have a legitimate beef about the effectiveness of the governor’s actions, any more so than the polarized and irrational MIGOP-controlled state legislature. Eleventh largest by population, Michigan was hit hard early in the pandemic, now ranking 10th in overall COVID-19 deaths. But since Whitmer declared the state of emergency and enacted the Stay-Home order along with a phased reopening process, the state’s daily death toll has plummeted and its cases per million is now 40th in the country.

You’ll recall from posts I wrote about the protests opposing Whitmer’s orders back in April that the protests cause spikes in active confirmed cases beginning 5-10 days after the protests. They’re visible here in these charts.

The plot wasn’t about Whitmer’s handling of COVID-19.

One only needs to look and listen to the language the conspirators used about Gov. Whitmer to know that this was about hate for a woman with the authority to give orders with regard to a deadly pandemic.

Tyranny to this baker’s dozen of white men was about a democratically-elected woman in a position of legitimate authority telling them what to do.

Trump set the tone for this by refusing to help Whitmer when she asked for federal assistance, by refusing to allow Pence as COVID-19 Task Force chair to listen to Whitmer, and by tweeting, “LIBERATE MICHIGAN” after the first protest against Whitmer’s orders.

His tweets yesterday attacking Whitmer again even after the arrests of kidnapping conspirators only reinforce the real intent of Trump and seditious domestic terrorists alike.

What will Trump’s tweets spawn next as we head into a second wave of COVID-19, this time with Michigan’s governor disempowered by Republicans on the state supreme court?

The Minh Quang Pham Precedent to the Julian Assange Extradition

WikiLeaks supporters say that extradition of Julian Assange to the United States threatens journalism. That is true.

They also say that his extradition would be unprecedented. I believe that’s true too, with respect to the Espionage Act.

But it’s not entirely without precedent. I believe the case of Minh Quang Pham, who was extradited to the US in 2015 for activities related to AQAP — the most substantive of which involve providing his graphic design expertise for two releases of AQAP’s magazine, Inspire — provides a precedent that might crystalize some of the legal issues at play.

The Minh Quang Pham case

Minh Quang Pham was born in 1983 in Vietnam. He and his parents emigrated to the UK in 1989 and got asylum. In 1995, he got UK citizenship. He partied a lot, at a young age, until his conversion to Islam in 2004, after which he was drawn to further Islamic study and ultimately to Anwar al-Awlaki’s propaganda. Pham was married in 2010 but then, at the end of that year, traveled to Yemen. After some delays, he connected with AQAP and swore bayat in early 2011. While he claimed not to engage in serious training, testimony from high level AQAP/al-Shabaab operative Ahmed Warsame, who — after a two month interrogation by non-law enforcement personnel on a ship — got witness protection for himself and his family in exchange for cooperation, described seeing Pham holding a gun, forming one basis for his firearms and terrorist training charges (though the government also relied on a photo taken with Pham’s own camera).

On my arrival, Amin had a Kalashnikov with him and a pouch of ammunition. I am not certain if he had purchased the gun himself but he did say he had been trained by Abu Anais TAIS on how to use it, I can say from my knowledge of firearms that this weapon was capable of automatic and single fire.

Warsame’s role as informant not only raised questions about the proportionality of US treatment (he was a leader of al-Shabaab, and yet may get witness protection), but also whether his 2-month floating interrogation met European human rights standards for interrogation.

Pham reportedly sucked at anything military, and by all descriptions, the bulk of what Pham did in Yemen involved helping Samir Khan produce Inspire. After some time and a falling out with Khan — and after telling Anwar al-Awlaki he would accept a mission to bomb Heathrow — he returned to the UK. He was interrogated in Bahrain and at the airport on return, and again on arrival back home, then lived in London for six months before his arrest. At first, then-Home Secretary Theresa May tried to strip him of his UK citizenship in a secret proceeding so he could be deported (and possibly drone killed like other UK immigrants), but since — as a refugee — he no longer had Vietnamese citizenship, her first attempt failed.

The moment it became clear the British effort to strip him of citizenship would fail, the US indicted Pham in SDNY on Material Support (covering the graphic design work), training with a foreign terrorist organization, and carrying a firearm. Even before he ultimately did get stripped of his citizenship, he was flown to the US, in February 2015. The FBI questioned him, with no lawyer, during four days of interviews that were not recorded (in spite of a recently instituted FBI requirement that all custodial interviews be recorded). On day four, he admitted that Anwar al-Awlaki had ordered him to conduct an attack on Heathrow (which made the 302), but claimed he had made it clear he only did so as an excuse to be able to leave and return to the UK (a claim that didn’t make the 302; here’s Pham’s own statement which claims he didn’t want to carry out an attack). While Pham willingly pled guilty to the training and arms charges, at sentencing, the government and defense disputed whether Pham really planned to conduct a terrorist attack in the UK, or whether he had — as he claimed — renounced AQAP and resumed normal life with his wife. He failed to convince the judge and got a 40 year sentence.

The question of whether Pham really did plan to attack Heathrow may all be aired publicly given that — after Pham tried to get a recent SCOTUS case on weapon possession enhancements applied to his case — the government has stated that it wants to try Pham on the original charges along with one for the terrorist attack they claim Pham planned based on subsequently collected evidence.

The parallels between the Assange and Pham cases

Let me be clear: I’m not saying that Assange is a terrorist (though if the US government tries him, they will write at length describing about the damage he did, and it’ll amount to more than Pham did). I’m arguing, however, that the US has already gotten extradition of someone who, at the time of his extradition, claimed to have injured the US primarily through his media skills (and claimed to have subsequently recanted his commitment to AQAP).

Consider the similarities:

  • Both legal accusations involve suspect informants (Ahmad Warsame in Pham’s case, and Siggi and Sabu in Assange’s)
  • Both Pham and Assange were charged for speech — publishing Inspire and publishing the names of US and Coalition informants — that is more explicitly prohibited in the UK than the US
  • Both got charged with a substantive crime — terrorism training and possession of a gun in the case of Pham, and hacking in the case of Assange — in addition to speech-based crimes, charges that would (and did, in Pham’s case) greatly enhance any sentence on the speech-related charges
  • Pham got sentenced and Assange faces a sentence and imprisonment in SuperMax in the US that is far more draconian than a sentence for the same crimes would be in the UK, which is probably a big part of the shared Anglo-American interest in extraditing them from the UK
  • Whatever you think about the irregularity and undue secrecy of the Assange extradition, Pham’s extradition was far worse, particularly considering the way Theresa May was treating his UK citizenship

Unlike the Pham charges — all premised on Pham’s willing ties to a Foreign Terrorist Organization, AQAP — the US government has not included allegations that it believes Julian Assange conspired with Russia, though prosecutors involved in his case trying unsuccessfully to coerce Jeremy Hammond’s testimony reportedly told Hammond they believe him to be a Russian spy, and multiple other reports describe that the government changed its understanding of WikiLeaks as it investigated the 2016 election interference (and, probably, the Vault 7 release). Even if it’s true and even if they plan to air the basis for their belief, that’s a claimed intelligence tie, not a terrorism one.

This distinction is important. Holder v. Humanitarian Law clearly criminalizes First Amendment protected activity if done in service of a designated Foreign Terrorist Organization, so Pham’s graphic design by itself made him fair game for charges under US precedent.

The government may be moving to make a similar exception for foreign intelligence assets. As the Congressional Research Service notes, if the government believes Assange to be a Foreign Agent of Russia, it may mean the Attorney General (Jeff Sessions for the original charge, and Bill Barr for all the indictments) deemed guidelines prohibiting the arrest of members of the media not to apply.

The news media policy also provides that it does not apply when there are reasonable grounds to believe that a person is a foreign power, agent of a foreign power, or is aiding, abetting, or conspiring in illegal activities with a foreign power or its agent. The U.S. Intelligence Community’s assessment that Russian state-controlled actors coordinated with Wikileaks in 2016 may have implicated this exclusion and other portions of the news media policy, although that conduct occurred years after the events for which Assange was indicted. The fact that Ecuador conferred diplomatic status on Assange, and that this diplomatic status was in place at the time DOJ filed its criminal complaint, may also have been relevant. Finally, even if the Attorney General concluded that the news media policy applied to Assange, the Attorney General may have decided that intervening events since the end of the Obama Administration shifted the balance of interests to favor prosecution. Whether the Attorney General or DOJ will publicly describe the impact of the news media policy is unclear.

There’s a filing from the prosecutor in the case, Gordon Kromberg, that seems to address the First Amendment in more aggressive terms than Mike Pompeo’s previous statement on the topic.But it may rely, as the terrorism precedent does, on a national security exception (one even more dangerous given the absence of any State Department FTO list, but that hardly makes a difference for a foreigner like Pham).

Ultimately, though, the Assange extradition, like the Pham prosecution, is an instance where the UK is willing to let the US serve as its willing life imprisoner to take immigrants to the UK off its hands. Assange’s extradition builds off past practice, and Pham’s case is a directly relevant precedent.

The human rights case for Julian Assange comes at an awkward time

While human rights lawyers fought hard, at times under a strict gag, on Pham’s immigration case, Assange’s extradition has focused more public attention to UK’s willingness to serve up people to America’s draconian judicial system.

Last Thursday, Paul Arnell wrote a thoughtful piece about the challenge Assange will face to beat this extradition request, concluding that Assange’s extradition might (or might have, in different times) demonstrate that UK extradition law has traded subverted cooperation to a defendant’s protection too far.

We need to reappraise the balance between the conflicting functions of UK extradition law.

Among the UK’s most powerful weapons are its adherence to the rule of law, democracy and human rights. Assange’s extradition arguably challenges those fundamental principles. His case could well add to the evidence that the co-operative versus protective pendulum has swung too far.

He describes how legal challenges probably won’t work, but an appeal to human rights might.

British extradition law presumptively favours rendition. Extradition treaties are concluded to address transnational criminality. They provide that transfer will occur unless certain requirements are met. The co-operative purpose of extradition more often than not trumps the protection of the requested person.

The protective purpose of extradition is served by grounds that bar a request if they are satisfied. Those particularly applicable in Assange’s case are double criminality, human rights and oppression.

There are several offenses within the Official Secrets Acts 1911/1989 and the Computer Misuse Act 1990 that seemingly correspond to those in the US request. However, human rights arguments offer Assange hope.

Three are relevant: to be free from inhuman and degrading punishment, fair trial rights and freedom of expression. Previous decisions have held that life-terms in supermaximum-security prisons do not contravene the “punishment” provision, while the right to freedom of expression as a bar to extradition is untested.

Assange’s best prospect is possibly the oppression bar. Under it, a request can be refused on grounds of mental or physical health and the passage of time. To be satisfied, however, grievous ill health or an extraordinary delay are required.

It’s a good point, and maybe should have been raised after some of the terrorism extraditions, like Pham’s. But it may be outdated.

As I noted, Arnell’s column, titled, “Assange’s extradition would undermine the rule of law,” came out on Thursday. Throughout the same week that he made those very thoughtful points, of course, the UK publicly disavowed the rule of law generally and international law specifically in Boris Johnson’s latest effort to find a way to implement Brexit with no limits on how the UK deals with Northern Ireland.

The highlight – something so extraordinary and constitutionally spectacular that its implications are still sinking in – was a cabinet minister telling the House of Commons that the government of the United Kingdom was deliberately intending to break the law.

This was not a slip of the tongue.

Nor was it a rattle of a sabre, some insincere appeal to some political or media constituency.

No: law-breaking was now a considered government policy.

[snip]

[T]he government published a Bill which explicitly provides for a power for ministers to make regulations that would breach international and domestic law.

[snip]

Draft legislation also does not appear from nowhere, and a published Bill is itself the result of a detailed and lengthy internal process, before it is ever presented to Parliament.

This proposal has been a long time in the making.

We all only got to know about it this week.

[snip]

No other country will take the United Kingdom seriously in any international agreements again.

No other country will care if the United Kingdom ever avers that international laws are breached.

One of the new disclosures in a bunch of Roger Stone warrants released earlier this year is that, in one of the first Dms between the persona Guccifer 2.0, the WikiLeaks Twitter account explained, “we’ve been busy celebrating Brexit.” That same Brexit makes any bid for a human rights argument agains extradition outdated.

Billy Barr’s DOJ Throws the Book at Someone Not Named Mike Flynn for Reneging on a Plea Agreement

Last week, the government moved to vacate the guilty plea of Minh Quang Pham because, in violation of his plea agreement, Pham tried to get one of the counts against him thrown out based on an intervening Supreme Court precedent. On top of a new development in a controversial counterterrorism case (one that, because Pham’s admitted actions for AQAP were primarily contributing his graphic design skills, could have interesting implications for Julian Assange’s extradition), the development is an example of what Bill Barr’s DOJ does when defendants not named Mike Flynn renege on the terms of their plea agreement.

Pham is a Vietnamese-Brit who, for a brief period, helped Samir Khan produce Inspire Magazine. Theresa May, while Home Secretary, tried to strip him of his British citizenship, presumably so he could be expelled and drone killed like some other immigrants to the UK with ties to terrorism. When it became clear that effort might fail, the US indicted Pham on Material Support, obtaining military training from a terrorist organization, and possessing a weapon.

There have always been some unexplained aspects of Pham’s story. He claims that he willingly left AQAP, returned to the UK with help from the government, where he lived peaceably until he was arrested. Nevertheless, in four FBI interviews he had while in custody but not recorded (the FBI claimed that because he was still in transit, he was not covered by an FBI rule requiring custodial interviews be recorded), he admitted to getting a bomb-making lesson from Anwar al-Awlaki. He later contested those interviews, but the government used testimony from Ahmed Warsame (another AQAP affiliate was also interrogated in custody while “in transit”) against him. In 2016, Pham pled guilty to three of the charges against him: conspiring to provide material support, conspiring to receive military training, and possessing a weapon. He was sentenced to forty years in prison, of which 30 were tied to the weapons charge, and sent to Florence SuperMax.

Last year in US v Davis, the Supreme Court held that the law used to impose the possessing a weapons charge and with it the long prison sentence against Pham was constitutionally vague.

Over the course of months, Pham worked to get representation to have his case reconsidered under US v Davis, an effort that was badly delayed both by his incarceration in SuperMax and COVID.

Which, after some negotiations between Pham and the government, led to last week’s action. Because US v Davis means Pham’s conviction for the weapons charge must be dismissed, the government argues they are entitled to throw out Pham’s plea deal, and move towards a trial, including new charges.

As set forth in more detail below, the Government respectfully submits that the Court should reinstate the charges contained in the Indictment. The Government dismissed those charges at sentencing pursuant to the Plea Agreement, and only as consideration for the defendant’s guilty plea to the subset of offenses set forth in the Plea Agreement. Neither the terms of the Plea Agreement nor controlling law in this Circuit prevent the Government from reinstating the previous charges against Pham under these circumstances. To the contrary, the defendant’s Plea Agreement expressly preserved the Government’s right to do so should the defendant’s “convictions” be “vacated for any reason.” (Ex. A. at 8). Accordingly, the Government seeks to vacate Pham’s convictions, reinstate the charges in the Indictment, and proceed to trial.

[snip]

Although it is axiomatic that “when a defendant breaches his plea agreement, the Government has the option to . . . treat it as unenforceable,” United States v. Cimino, 381 F.3d 124, 128 (2d Cir. 2004), the Court need not decide whether Pham’s filing of a Section 2255 motion constituted a breach of the plea agreement to grant the Government’s motion. “Whether [Pham] breached his contract or acted properly in negating it is largely irrelevant to this issue. Despite the change in law, [Pham] remained free to comply with the plea bargain. By taking advantage of the opportunity to vacate his conviction under [Davis], [Pham] chose to void his agreement with the government. That choice relieved the government from its contractual obligations, and explains why double jeopardy does not apply.” Podde, 105 F.3d at 821 n.6 (internal citations omitted).

In addition to moving to try Pham on the five existing charges (presumably, on the four that remain after Davis), the government plans to charge Pham with an attempted terrorist attack, in part to make sure they can charge Pham with something if the existing plea deal is upheld.

Separate from the application for reinstatement of charges, the Government respectfully informs the Court and defense counsel that the Government intends to file additional charges against Pham based on additional evidence secured following his conviction and sentencing.

The evidence at issue includes (1) video recordings showing the defendant constructing and detonating a test explosive device virtually identical to the one Pham told law enforcement was to be used in his planned suicide attack on Americans and Israelis at Heathrow International Airport; (2) video recordings of Pham associating with high-ranking members of AQAP; (3) a video recording of Pham describing his goal of waging jihad and his desire to martyr himself; and (4) a document containing instructions for executing the attack upon Pham’s return to London. The Government reviewed this evidence with defense counsel during a meeting on December 5, 2019, and produced a copy of the evidence to the defense on or about March 24, 2020.

Based on this evidence, the Government expects to seek additional charges related to the defendant’s attempted attack at Heathrow, including a violation of Section 924(c) predicated on the use and possession of a destructive device in furtherance of one or more additional crimes of violence committed in connection with the plot. This conduct, and the anticipated charges based upon it (which are subject both to approval by other components of the Department of Justice and presentation to the grand jury), are not covered by the provisions of the Plea Agreement defining the conduct for which “the defendant will not be further prosecuted criminally by this Office.” (Ex. A at 2). Accordingly, while the Government will not proceed with a superseding Indictment until after the Court rules on the reinstatement of the original charges of the Indictment, the Government expects to seek those additional charges whether or not it is also able to proceed on the previously dismissed counts.

Now, I’m not suggesting, at all, that there’s an equivalence in the actions of Pham and Mike Flynn. Even assuming some of Pham’s complaints about his interrogation and the disproportionate responsibility the government attributed to him over Warsame are true, he still admits he sought to participate in a terrorist organization.

But where a comparison is apt is the plea agreement. Like Pham, the government included language in Flynn’s plea agreement that if his conviction were vacated for any reason, he can be charged for the uncharged conduct tied to his plea agreement — which in Flynn’s case are the Foreign Agent charges that carry a possible sentence of 15 years. Flynn is arguing that he has not yet been convicted, though that’s currently among the many issues under dispute.

And the comparison is apt because (the government has argued, though Flynn disagrees) Flynn reneged on the cooperation included in his plea agreement.

For other people, Bill Barr’s DOJ has thrown the book when a defendant has reneged on his plea deal. In Flynn’s case, however, Barr’s DOJ is doing back flips to try to blow up the existing conviction.

Pham’s case will be quite interesting in any case, if it goes to trial (and the government has effectively already told him they intend to keep him in prison for life anyway, so he has no incentive not to contest this aggressively). But it’s also a worthy lesson in what normally happens when a defendant blows up a plea deal like Mike Flynn has.

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