“Let’s Go Brandon!” Straka’s Cow Manure

Brandon Straka did not start fundraising for the cops whose assault he cheered …

… Until a week after his second batch of leniency letters started coming in, and over 45 days after he pled guilty.

In fact, there’s no evidence in the public record that Straka ever gave any of that money to cops, not even the 75% he claimed to plan to donate, much less the 25% he was skimming from the top. There’s just a dated claim that it would be donated “at the conclusion” of a year that ended 20 days before the filing claiming it would be donated.

Since January 6, Brandon has spent a lot of hard time reflecting on his role in the events that took place that tragic day. He has offered strong condemnation for any violence used that day, especially the violence perpetrated against police. Additionally, Brandon has been actively using his platform to support law enforcement officers. Upon visiting the #WalkAway Foundation website, the first option presented is to donate to the “Refund the Police” initiative: “#WalkAway will donate 75% of the funds raised to pro-police organizations in [the fourteen (14) cities most affected by defunding initiatives]. The other 25% will be used for the cost of overhead for this campaign.”2 This initiative will close at the conclusion of this year; and is close to having raised over $18,000.00 at this time.

2 See #WalkAway Foundation Homepage last accessed Dec. 14, 2021, available at https://www.walkawayfoundation.org/.

That’s important because Brandon Straka really wants to continue do such grifting as a public service in lieu of having Probation monitor his social media and finances, much less serve jail time for his role in inciting an insurrection. He even asks to pay $5,000 as a fine to be allowed to dodge further scrutiny of his grift.

The Defendant respectfully requests that he be sentenced to either a terminal disposition of time served for the two days he has already spent in custody, or in the alternate, a term of home confinement and community service. Defendant requests that he not be placed on probation. Defendant also requests that the Court impose the maximum fine permitted for this offense, which is $5,000.

[snip]

If the Court would allow Brandon to have included in his sentence a stronger portion of community service rather than a sentence of Probation, the country at large will be better served. The nature of Brandon’s job requires that he often travels, making supervision more difficult and costly—and to what end? Brandon has already been on Pretrial Release for nearly a year with no violations. He clearly has the capability to contribute to the greater good through fundraising and leading others into service with him. While the Probation Office’s Recommendation sees Brandon’s following as a reason for concern3, it is the Defendant’s belief, and Counsel for the Defendant’s belief, that his talents can be put to better use than verifying that he is in compliance with certain conditions of Probation—that if he is given true freedom, that he will use that freedom in service of his country.

[snip]

Brandon also objects to the recommendation by the Probation Officer that he be subjected to a discretionary condition of Probation that monitors his electronic communications service accounts, including email accounts, social media accounts, and cloud storage accounts. Brandon also objects to his financial activity being monitored by the Probation Office. These discretionary conditions of Probation are not sufficiently relevant to the offense committed. In United States v. Taylor, 796 F.3d 788 (7th Cir. 2015), the Seventh Circuit reversed a restriction on the defendant’s computer ownership and internet access in a bank larceny case, stating that the restriction was not reasonably related to his prior conviction for incest. In Brandon’s case, emailing, using social media, and using cloud storage has nothing to do with his offense.

3 The government has never alleged, and there is no evidence, that Brandon used his following to commit any criminal activity. Brandon is charged for conduct he committed at the Capitol in his personal capacity.

Whether or not there is evidence that Straka used his online presence to prevent the peaceful transfer of power (and there is, though DOJ may have discovered it after entering into this dud plea agreement), Straka’s own story materially conflicts regarding what he did on January 6, 2021.

Straka’s own letter to Judge Dabney Friedrich implies that he went directly from Trump’s speech to the Metro and because he did so he had no way of knowing there was a violent riot going on.

I sat in the front row at the Ellipse and listened to the President of the United States speak. He concluded by telling the crowd that we were all now going to march “peacefully” to the Capitol. Everything felt perfectly normal and exactly in accordance with the schedule of events for that day. I then walked to the DC Metro On the way to the Capitol, I began getting text messages from people I knew who were at home watching the news on television indicating that people were going inside the Capitol building. Shortly after, I started getting numerous messages from the other scheduled speakers, some asking if our event was still happening, if it was now cancelled- it was total confusion. I was of 2 minds at this point. Either,

#1) The event is still happening and I’m still speaking, and that’s what I came all the way to DC to do. Or

#2) The event may no longer be happening, but SOMETHING is going on at the Capitol right now, and I want to be there to capture footage of whatever it is that’s going on.

His sentencing memo describes that he came to DC to speak on January 5, and only stayed over because he was one of the very inflammatory people who were offered speaking slots on January 6 but who got canceled (!!!) at the last moment.

Prior to the January 6, 2021 rally at which then-President Donald Trump was set to speak, Brandon was set to speak at a rally held at Freedom Plaza on January 5, 2021 and travelled to Washington, D.C. for that purpose. Brandon remained in Washington, D.C. after the rally on January 5, 2021, as he was a potential slated speaker at a rally the next day. On the morning of January 6, 2021, Brandon arrived at the Ellipse at 5:00 a.m. in anticipation of then-President Trumps’ rally to start. Up until the time Brandon arrived at the event, he believed that he might speak at that event.

More problematic still, Straka’s sentencing memo describes that in-between Trump’s rally and the riot, Straka went to the Willard Hotel, where a bunch of his associates were plotting to steal the election (he doesn’t mention that fact), and where his “security guards” alerted him that it was too dangerous to walk the 28 minutes to the Capitol.

When President Trump concluded his remarks around 1:00 p.m., a wave of protestors left the Ellipse and headed toward the Capitol. At this time, Brandon left the Ellipse and traveled to the Willard Hotel to meet with two of his employees who were designated as security guards. Upon the advice of his security guards, Brandon did not participate in the march to the Capitol and instead took the Metro to the Capitol. While riding on the Metro, Brandon began receiving push notifications on his phone about what was happening at the Capitol. The Metro did not stop at the Capitol, and Brandon got off at the next stop—which was roughly an 18-minute walk from the Capitol.

By the time Brandon arrived, at around 2:40 p.m. (a full twenty minutes after the Capitol had been cleared), the outer barriers and fencing that had previously surrounded the Capitol were largely displaced. Brandon arrived and approached the East side of the Capitol, where things were calmer; and Brandon did not notice anything out of the ordinary during most of his walk to the Capitol.

And that version is off by at least two and possibly 22 minutes off from Straka’s sworn statement of offense.

Straka got off the metro on January 6, 2021 sometime between 2 p.m. and 2:20 p.m. He then knowingly entered the restricted area at the U.S. Capitol Grounds.

The revised story would have him arriving to the Capitol seven minutes after (prosecutors noted in their own sentencing memo) he was informed his speech was delayed because “they stormed the Capitol.”

At 2:33 pm on January 6, 2021, Michael Coudrey, the national coordinator for Stop the Steal, sent a message to a group chat telling those in the chat that the event that Straka was scheduled to speak at would be delayed because “They stormed the capital[sic].”

And that’s important, because Straka claims that when he said some inflammatory things on social media, he didn’t know about the violence.

Brandon made statements on social media that were in retrospect irresponsible and potentially inflammatory. Any statements Brandon made must be considered in context with the fact that Brandon had not witnessed the violence committed on the west side of the Capitol and he had not seen what was broadcasted on television. Once understanding the full context of the events, Brandon retracted and removed his prior statements.

Finally, it’s curious that DOJ is relying on a ProPublica story for the notice from Coudry (to say nothing of Ali Alexander’s warning, “Everyone get out of there … The FBI is coming hunting.” That’s because Straka claims to have provided prosecutors passwords to whatever phones he still had in his possession when the FBI searched his apartment.

Brandon cooperated fully with law enforcement, including providing two proffers and turning over the password to all devices seized as part of the search warrant executed on his apartment. Brandon provided information on individuals the government was investigating in separate cases and answered all questions posed by the government.

There’s abundant evidence that Straka is bullshitting prosecutors, and was bullshitting them when he got a sweet plea deal.

Indeed, with the inconsistencies between his letter to Dabeny Friedrich and his own sentencing memo, the evidence shows he’s bullshitting Judge Friedrich.

I don’t know what excuses Probation scrutinizing Brandon Straka’s grift more closely than the FBI. I don’t know what targets DOJ was so desperate to implicate that they missed the target sitting in front of them.

But even his own sentencing package makes it clear he’s shoveling cow shit.

The post “Let’s Go Brandon!” Straka’s Cow Manure appeared first on emptywheel.

Special Master Barbara Jones Turns Over Rudy’s Chats

After much delay, the Special Master reviewing Rudy Giuliani’s phones, Barbara Jones, has released an update. It reveals that she released a bunch of materials to DOJ on January 19.

Those include:

  • The balance of 25,629 chats and messages that post-date January 1 from one of Rudy’s cell phones
  • From that same phone, 56 chats and messages that Rudy had initially claimed privilege over but for which he either withdrew or chose not challenge Jones’ designation that they were not privileged
  • 3,204 chats and messages from between December 1, 2018 and May 31, 2019 from Rudy’s other devices, none of which he said were privileged (there should be eight devices; FBI seized 16 devices total)

These releases are in addition to 2,223 items from seven phones reviewed last year.

I find the last bullet most interesting. The known scope of the Ukraine warrants targeting Rudy go from August 1, 2018 through December 31, 2019; the review described in this update doesn’t even cover the full time frame of those warrants. The timeframe of this review is more consistent with a review covering the tail end of the Mueller investigation than the Ukraine investigation.

But they might prioritize such reviews if they were worried about tolling statutes of limitation.

In any case, by my read, all of Rudy’s texts and messages from that period — December 1, 2018 through May 31, 2019 — would have been reviewed for privilege.

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Five Percent of Mueller Pre-Grand Jury Interviews Pertain to Still Ongoing Investigations

The other day, I asked Jason Leopold where the Mueller FOIA release was this month. DOJ remains under obligation to hand over hundreds of pages a month in response to his FOIA, and they usually hand it over in the first days of the month.

He shared this month’s release, which makes it clear DOJ did something pretty dickish to him. DOJ turned over notice it was withholding 696 consecutive pages of materials, all of which invoke the b73 exemption for grand jury materials. Effectively, DOJ just dumped a bunch of interviews conducted before grand jury testimony, all of which DOJ has been withholding under that grand jury exemption, to fulfill their monthly obligation.

And because these are consecutive pages, we can’t glean information from them in the same way we can pages (such as those pertaining to Steve Bannon’s January 2019 Grand Jury appearance) turned over as part of other releases.

But there is, however, one detail that we can learn from this. Of the 696 grand jury related pages DOJ withheld, 40 of them also invoke the b7A exemption for an ongoing investigation.

That means that, in addition to the grand jury exemption, more than 5% of the pages were also withheld for ongoing investigations. We have no idea if these interviews are representative of the total. We also can’t see how many individual interviews these records include. But of this batch, it’s over 5%.

To be sure, given what we’ve seen of late, I don’t think that means we’re going to see indictments based on the Trump cases. While individual pages of the Stone, Bannon, and Flynn materials released in the last year reflect ongoing investigations, a whole lot of Sam Patten’s materials do (or at least did, last summer).

Patten, you’ll recall, was sort of a mirror image for Konstantin Kilimnik to Paul Manafort, another American political consultant that he used to access US networks. Patten was referred to Mueller by the Senate Intelligence Committee because he lied in his interview with the Committee. After that he entered into a cooperation agreement where he shared a whole bunch of what he had learned about how Russia interferes in Ukrainian politics (and through that, in US politics).

That is, my guess is that a bunch of these ongoing investigations pertain to stuff like counterintelligence investigations leading to the Treasury sanctions imposed yesterday, including one person who had worked with Kilimnik to interfere in the 2020 US elections.

Whatever it is, though, the only value of DOJ pulling this dickish move is to give a sense of how much of this material remains ongoing.

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Bennie Thompson to Ivanka: Come In from the Conspiracy

Even though you read this site, you may not recognize the names Brad Smith or Marshall Neefe. Even though I’ve focused some attention to his case, you may not remember the significance of Ronnie Sandlin. You might not even remember that the Oath Keeper conspiracy was named after retired Navy officer Thomas Caldwell before he was spun off into the sedition conspiracy named after Stewart Rhodes.

But those are all references of import to understand this footnote in the letter Bennie Thompson sent to Ivanka Trump, inviting her to testify voluntarily.

The Select Committee is aware of the motivation of many of the violent rioters from their posts on social media, from their contemporaneous statements on video, and from the hundreds of filings in federal court.11

11 For example, many defendants in pending criminal cases identified President Trump’s allegations about the “stolen election” as a motivation for their activities at the Capitol; a number also specifically cited President Trump’s tweets asking that supporters come to Washington, D.C. on January 6th. See, e.g., United States of America v. Ronald L. Sandlin https://www.justice.gov/opa/page/file/1362396/download: “I’m going to be there to show support for our president and to do my part to stop the steal and stand behind Trump when he decides to cross the rubicon.” United States of America v. Marshall Neefe and Charles Bradford Smith https://www.justice.gov/usao-dc/case-multi-defendant/file/1432686/download: “Trump is literally calling people to DC in a show of force. Militias will be there and if there’s enough people they may fucking storm the buildings and take out the trash right there.” United States of America v. Caldwell et al. https://www.justice.gov/usao-dc/case-multi-defendant/file/1369071/download: “Trump said It’s gonna be wild!!!!!!! It’s gonna be wild!!!!!!! He wants us to make it WILD that’s what he’s saying. He called us all to the Capitol and wants us to make it wild!! ! Sir Yes Sir!!! Gentlemen we are heading to DC pack your shit!!”

The Select Committee could have chosen any number of individual defendants to support the claim that Trump was the motivating force for the participants of the mob that stormed the Capitol on January 6.

It did not.

Instead, without saying that it had, it cited three conspiracy indictments: a conspiracy that involved totally random guys who met online coming armed to DC and assaulting officers to break open the East doors and break into the Senate chamber, a conspiracy where guys armed to come to DC based on a motivation that, “Why shouldn’t we be the ones” to kick off war, and a conspiracy that has now officially been charged as sedition.

What the Select Committee just said to Ivanka, very subtly (and without the hotlinks to these court filings to make it easy) is that multiple organizers across multiple conspiracies — all involving arming themselves before traveling to DC — acted on Trump’s comments in December and January as instructions.

What the Select Committee has laid out in this footnote is that key members of conspiracies that led to violent assaults on January 6 entered into an agreement with Donald Trump to engage in violence.

Other coverage of this letter has focused on the many other scathing details included in it:

  • Proof that Trump knew he was making an illegal request of Mike Pence (and that Ivanka knew such pressure was wrong)
  • Proof that multiple people attempted to get Trump to call off the violence (and that staffers repeatedly asked Ivanka to intercede to get him to do so)
  • Proof that advisors including Kaleigh McEnany and Sean Hannity attempted to get Trump to disavow these efforts

In response to the letter, Ivanka issued a statement making it clear that on January 6 she disavowed the violence caused by her father.

Ivanka Trump just learned that the Jan. 6 Committee issued a public letter asking her to appear. As the Committee already knows, Ivanka did not speak at the January 6 rally. As she publicly stated that day at 3:15pm, “any security breach or disrespect to our law enforcement is unacceptable. The violence must stop immediately. Please be peaceful.”

But that doesn’t account for another detail of the letter that has gotten far less attention than the eye-popping new details about Trump’s actions: Chairman Thompson reminded Ivanka (in a paragraph that seemingly addresses another topic) not just of the requirements of the Presidential Records Act, but also that she got formal notice of those requirements in 2017.

The Select Committee would like to discuss this effort after January 6th to persuade President Trump not to associate himself with certain people, and to avoid further discussion regarding election fraud allegations. We also wish to share with you a memorandum from former White House Counsel Donald McGahn (attached), regarding the legal requirements on White House personnel to turn over to the National Archives any work-related messages from personal devices. We wish to be certain that former White House staff are fully aware of these obligations.

Ivanka, of course, is not just the former President’s daughter. She’s also someone legally obliged to share all the communications conducted while performing whatever role it is she played in the White House — up to and including begging her Daddy to call off a violent mob — with the National Archives.

Thompson would not have mentioned this if the committee had been able to obtain Ivanka’s side of many of these communications from the Archives (or at least seen them in documents Trump was attempting to claim privilege over). Thompson seems to know that Ivanka is not in compliance with the Presidential Records Act specifically as it pertains to her role on January 6.

Here’s the thing about conspiracies. Once you join them, you’re in them — you’re on the hook for what all other co-conspirators do, from acquiring weapons to bring to DC, to assaulting cops, to planning to overthrow the government — unless you make an affirmative effort to leave the conspiracy.

Ivanka might well point to that comment in her statement — The violence must stop immediately — as an effort to leave a conspiracy.

Except if she is covering up some of the things she knows by withholding records from the Archives, she’s going to have a hard time arguing that she didn’t remain in the conspiracy with all those people plotting violence by helping to cover it up.

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“HOLD. THE. LINE!!!” DOJ’s Late Research into Brandon Straka’s Grift

It’s difficult to tell what really went down with the Brandon Straka plea.

That’s because — as laid out here — the government seems to have realized that Straka had been less than forthright in interviews, in which he was deemed cooperative last year, that got him a sweet plea deal. In their sentencing memo, the government seems to be at pains to argue that Straka’s cooperation was worth minimizing his overt incitement of the obstruction attempts.

Straka, meanwhile, is desperate to dismiss claims he “snitched” out others. So it’s unclear what to make of the claim — in a memo signed by Bilal Essayli, a California politician who only just filed his notice of appearance in the case — that the government was pressuring Straka to implicate Trump directly.

During the interviews the government was focused on establishing an organized conspiracy between defendant, President Donald J. Trump, and allies of the former president, to disrupt the Joint Session of Congress on January 6. Defendant answered all questions truthfully and denied the existence of any such plot. In August 2021, the FBI arrived at the same conclusion and found no evidence that violence was centrally coordinated by any individual or group.2 Despite these findings, the government persists with a false narrative that defendant’s actions were premeditated and orchestrated in concert with the greater mob that stormed the Capitol. The Court should reject this improper attempt to expand the scope of the appropriate sentencing factors, and consider only defendant’s relevant conduct with respect to the charged offense: misdemeanor disorderly conduct.

2 See Mark Hosenball, Exclusive: FBI finds scant evidence U.S. Capitol attack was coordinated – sources, Reuters, August 20, 2021, https://www.reuters.com/world/us/exclusive-fbi-finds-scant-evidence-us-capitol-attack-wascoordinated-sources-2021-08-20/

In an attempt to disclaim any organized conspiracy, Essayli cites the problematic Reuters article based on former officials who would have been in charge during the period when Straka’s initial interviews were deemed cooperative, but whose knowledge by August 2021 would have been out of date and whose claims would be utterly irrelevant to what DOJ understood by December, when Straka’s sentencing took a weird turn.

Even crazier, the Straka sentencing memo reveals that, on December 10 (so two days after Straka revealed new information that roiled the sentencing), his team shared a sentencing position with DOJ asking not just for no jail time, but to have the entire case dismissed.

Defendant feels compelled to respond on the record to the government’s sentencing memorandum, which was filed one week prior to the sentencing hearing. The government had the benefit of reading and considering defendant’s sentencing position, which was timely filed on December 10, 2021, when drafting its position. The government missed this deadline and informed defendant the following day that it was seeking to continue the sentencing hearing. The government sought a stipulation to continue, which defendant agreed to join, based on the government’s representation that it would consider a request from defendant to dismiss this case. The government informed defendant on January 13, 2022, that his request was denied and proceeded to file its sentencing position containing highly inflammatory characterizations of defendant. [my emphasis]

Since December, it seems Straka has given up that plan, because his attorneys now argue for “a modest non-custodial sentence.”

That said, much of the rest of the memo focuses on making a First Amendment argument claiming that Straka’s earlier posts (it is silent about his January 5 speech) don’t amount to incitement.

The first and second tweet sent in early December 2020 were a pair of strongly worded messages opposing the transition to President Biden without an audit of contested election results. Gov. Figure A and B. Defendant states, “If we don’t get a thorough audit we must not allow a transfer.” The references in the tweet to a “civil war” was not a call to violence, as the government suggests, it was a figure of speech referencing a political struggle. The government concedes that defendant’s “messages contain rhetorical flourishes that are common in political speech,” but then suggests, without evidence, that defendant’s statements could “have been interpreted by some readers as a call for more than just a figurative struggle.” ECF 36, p. 5. The government does not cite one example of defendant’s tweets influencing a single person to engage in criminal conduct.

Similarly, Gov. Figure C contains a tweet from December 19, 2020, with a call to “rise up” (figuratively) and be recognized by the government. The full statement reads, “Our government no longer listens & takes instructions from the People. They’ve decided to become dictators to the People. It’s time to rise up!” This is precisely the category of speech the First Amendment protects. It is not incitement, and barely registers above heated political rhetoric. See generally Cohen v. California, 403 U.S. 15, 24–26 (1971). It was also not imminent—being issued almost a month prior to January 6. See Brandenburg v. Ohio, 395 U.S. 444, 448 (1969) (First Amendment prohibits punishment of advocacy except when it incites imminent unlawful action).

The government’s sentencing memorandum is devoid of any mention of the First Amendment, let alone any analysis of whether defendant’s statements meet the Brandenburg standard required for punishing speech. The government may only punish protest-related speech that includes a direct “call to violence” or advocacy that is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” See Brandenburg, 395 U.S. at 447; Noto v. U.S., 367 U.S. 290, 297–300 (1961). At the same time, the Supreme Court has consistently protected the statement of an idea that “may prompt its hearers to take unlawful action. . . .” Noto, 367 U.S. at 297 (quoting Dennis v. U.S., 341 U.S. 494, 545 (1951) (Frankfurter, J., concurring)). Indeed, even a protestor screaming, “We’ll take the f***ing street again” amidst an agitated crowd resisting police authority could not be punished for his speech. Hess v. Indiana, 414 U.S. 105, 107 (1973). The government fails to distinguish this important constitutional divide and, by so doing, seeks to penalize protected advocacy.

None of defendant’s statements meet the test for a “call to violence” as the government suggests. They lack any specific call to violence (hypothetically, “People, find a police officer and bash his head in!” or “Attack Senator John Doe now!”). They are not particular in that they do not ask protestors to take unambiguous actions or engage in detailed criminal acts. They are not imminent—the quoted material occurred a month before the January 6 event. And whatever the government believes defendant communicated to his supporters remains an inkblot in a constitutional Rorschach test. The speech that the government finds objectionable remains protected advocacy, and should not be considered for purposes of sentencing.

There are four attorneys who have filed notices of appearance for Straka. Not a single one has dealt with a prior January 6 defendant. So they may genuinely not know that DOJ has routinely turned to a defendant’s earlier speech to get not to incitement (militia defendants are an exception), but to motive.

And many of the other explanations Straka offers for his inflammatory language on January 6 don’t make sense (and has already been admitted at sentencing for dozens of other defendants). Straka’s team suggests that his incitement — as he was watching and cheering rioters strip a cop of a riot shield — couldn’t have encouraged the violence he was watching because his “social media posts were similarly written before defendant saw television footage of the west side of the Capitol,” as if there weren’t tons of things to alert him to the danger (even assuming he didn’t know of the collaboration between his associates and the organized militias) without seeing the West side.

Straka’s team seems to have gone from thinking they could get this entire case dismissed to being really worried about incitement that, through their good lawyering and possibly a lack of candor, hasn’t been charged against Straka.

Which brings me to a final detail of this exchange made visible by the timeline laid out in Straka’s filing.

As laid out below, after Straka’s presentence report came in, DOJ swapped prosecutors, April Russo for Brittany Reed (who wrote the sentencing memo). That presentence report, which is one of two things that changed DOJ’s response to sentencing, is referred to at least nine times in the government sentencing memo, though not at all in Straka’s.

The presentence report, for example, is what the government cites for Straka’s self-serving concern about how the prosecution affected his grifting.

During a presentence interview with U.S. Probation, the defendant expressed remorse for his actions. During his interview, the defendant stated that “if he could go back in time, he would never have gone to Washington D.C.” Straka described his conduct on January 6 as “one of the stupidest and tragic decisions of his life.” Straka lamented about how this incident has impacted his life and his business. He also informed U.S. Probation that he “feels the consequences for his actions have been quite extreme and disproportionate given his involvement in the offense is a misdemeanor.”

[snip]

Yet, it is worth pointing out that Straka believes that “the consequences for his actions this far have been quite extreme and disproportionate given his involvement.” Straka also believes that he is misunderstood. He has also expressed concern about how his business has been affected. ECF 28 ¶¶ 23-25. These statements indicate that Straka does not understand the gravamen of his conduct and that of the rioters on January 6.

The presentence report is also, alarmingly, the only place DOJ cites to explain Straka’s unique grift or that he flew to DC for the insurrection directly from doing similar incitement in Georgia.

It was in this context that Straka traveled to Washington D.C. on January 4, 2021, from where he had been working on the special election in Atlanta, Georgia to attend several “Stop the Steal” events where he would be a featured speaker. See ECF 28 at ¶ 17.

His role in the TCF mob in Michigan is not mentioned at all.

After that presentence report, the swapping of prosecutors, and the new information Straka provided on December 8, Straka’s team told DOJ they were going to ask to have the prosecution dismissed. That’s when the government told Straka they wanted a delay. Straka’s description of the timing of this is not entirely consistent with what shows in the docket (for example Judge Friedrich, with no public explanation, extended the deadline for the sentencing memo to December 15 on December 8, the day Straka provided new information), but there also seem to be several sealed entries. And while Straka claims DOJ told them they wanted a delay on December 11, the motion to continue describing the new information on December 8 and the presentence report is formally filed on December 17.

On December 8, 2021, the defendant provided counsel for the government with information that may impact the government’s sentencing recommendation. Additionally, the government is requesting additional time to investigate information provided in the Final PreSentence Report. Because the government’s sentencing recommendation may be impacted based on the newly discovered information, the government and defendant request a 30-day continuance of this case so that the information can be properly evaluated.

That makes what DOJ spent December 16 doing all the more interesting.

DOJ describes accessing the following materials on December 16, the day before they asked for a continuance:

The government cites the latter article — and not communications obtained directly by the FBI — to explain how Straka learned that his speech would be “delayed.”

At 2:33 pm on January 6, 2021, Michael Coudrey, the national coordinator for Stop the Steal, sent a message to a group chat telling those in the chat that the event that Straka was scheduled to speak at would be delayed because “They stormed the capital[sic].” Joshua Kaplan and Joaquin Sapien, New Details Suggest Sernior Trump Aides Knew Jan. 6 Rally Could Get Chaotic, ProPublica (June 25, 2021) available at https://www.propublica.org/article/new-details-suggest-senior-trump-aides-knew-jan-6-rally-could-get-chaotic (last visited December 16, 2021). Straka responded, “I just got gassed! Never felt so fucking alive in my life!!!” Id.

The government didn’t cite Straka’s November text messages (cited directly in the article) expressing disgust with close Ali Alexander ally Nick Fuentes.

Nor do they describe that Ali Alexander was on the group chat via which Straka learned his event would be delayed, or that shortly after Straka reveled in getting tear gassed, Alexander instructed everyone on the list to “get out of there” because “the FBI is coming hunting.”

“They stormed the capital,” wrote Stop the Steal national coordinator Michael Coudrey in a text message at 2:33 p.m. “Our event is on delay.”

“I’m at the Capitol and just joined the breach!!!” texted Straka, who months earlier had raised concerns about allying with white nationalists. “I just got gassed! Never felt so fucking alive in my life!!!”

Alexander and Coudrey advised the group to leave.

“Everyone get out of there,” Alexander wrote. “The FBI is coming hunting.”

Both the fact that Straka remained on organizing lists with Alexander months after he expressed distaste for Fuentes’ homophobia and that Alexander warned that the FBI were on their way change the import of everything else Straka did. Of particular note, it would dramatically change the connotation of Straka calling, from the safety of some distance from the crime scene, on others to “HOLD. THE. LINE!!!!”

And if DOJ really didn’t understand Straka’s grift until this point, that would suggest they made a plea deal without understanding that Straka was closely tied to those it is now investigating for coordinating with the militias who attacked the Capitol.

Brandon Straka claims he was asked, but denied, that there was, “an organized conspiracy between defendant, President Donald J. Trump, and allies of the former president, to disrupt the Joint Session of Congress on January 6.” But it appears that one thing leading to the month-long delay in his sentencing was newfound understanding both of Straka’s grift, but also of his close ties to those who coordinated with organized militias to end up precisely where Straka did: inciting violence from the top of the East steps of the Capitol.

Given that, his worries about whether his language counts as incitement seem misplaced. While he is legally in the clear for anything pertaining to January 6 (unless he lied to FBI), he should be more worried about inclusion in charges tied to the conspiracy he claims he denied.

Timeline

January 11, 2021: Tip on Straka’s post to Twitter

January 13, 2021: Interview with Straka relative

By January 13, 2021: Straka removes January 5 video from Twitter; last view date for December 19, 2020 video cited in sentencing memo but not arrest affidavit

January 20, 2021: Straka charged by complaint

January 25, 2021: Straka arrest

February 17, 2021: First FBI interview

February 18, 2021: First continuance

March 25, 2021: Second FBI interview

June 3, 2021: Second continuance

July 2, 2021: Protective order

August 25, 2021: Third continuance

August 31, 2021: Date of plea offer

September 14, 2021: Deadline to accept plea

September 15, 2021: Straka charged by information

September 30, 2021: Stuart Dornan files notice of appearance for Straka

October 5, 2021: Updated information

October 6, 2021: Change of plea hearing (plea agreement; statement of offense); sentencing scheduled for December 17, with initial memo due December 10 and response due by December 15

Between October 7 and November 19, 2021: Pretrial services interview (sealed docket #28)

November 19, 2021: Brittany Reed substitutes for April Russo

December 8, 2021: Sentencing reset for December 22; sentencing memo due by December 15; Straka “provide[s] counsel for the government with information that may impact the government’s sentencing recommendation”

December 10, 2021: Straka shares sentencing position (possibly filed under seal)

December 11, 2021: Government tells defendants it seeks to continue, tells Straka it will consider request to dismiss case

December 16, 2021: Last view date for 2018 Straka video, Walkaway Foundation website, WalkAway Campaign PAC website, WalkAway Campaign YouTube Channel; ProPublica article on Michael Courdrey message (and attempts to distance Alex Jones and Ali Alexander)

December 17, 2021: Motion to continue (presented as joint) 30 days

By December 23, 2021: Sealed motion attempting to seal publicly filed motion to continue, denied by Judge Friedrich

January 5, 2022: Third FBI interview, this time including prosecutors (plural)

January 13, 2022: Government sentencing memo (sealed addendum at docket #37); government denies Straka request to dismiss case

January 14, 2022: Bilal Essayli files notice of appearance for Straka

The post “HOLD. THE. LINE!!!” DOJ’s Late Research into Brandon Straka’s Grift appeared first on emptywheel.

Pandora’s Presidential Archives, Couy Griffin Edition

The attorney for New Mexico politician and Cowboys for Trump founder, Couy Griffin, is a guy named Nick Smith.

He is laudably aggressive. And in a case in which Griffin was charged just with trespassing (18 USC 1752), Smith has fought the prosecution every step of the way, even though if Griffin were to get jail time, he already served time after his arrest and so likely would only get time served.

In July, DC’s Trumpiest judge, Trevor McFadden, soundly denied Griffin’s first attempt to get the 1752 charges thrown out, arguing that Smith’s legalistic interpretation of the required role of Secret Service didn’t accord with the statutory history.

While Griffin clings to this statutory history, it ends up being more cement shoes than life preserver. By 2006 Congress rewrote the statute, in the process eliminating reference to the Treasury Department and to any “regulations” from any executive branch agency. 5 18 U.S.C. § 1752 (2006). More, the new statute criminalized merely entering or remaining in a restricted area; the old statute required further action, such as impeding government business, obstructing ingress or egress, or physical violence. Compare 18 U.S.C. § 1752(a)(1) (2006) with 18 U.S.C. § 1752(a) (1970). But Congress did not stop there. In 2012 it reconfigured the statute, adding the term “restricted buildings or grounds” and then defining it under subsection (c), as it appears today. 18 U.S.C. § 1752(a) (2012). Congress did not take that opportunity to clarify who can or must do the restricting, leaving it open-ended. But Congress did lower the mens rea requirement, striking the requirement that a defendant act “willfully.”

So what should the Court gather from this foray into § 1752’s statutory history? “Not much” would be a fair answer. Perhaps better would be to recognize the direction of Congress’s legislative march, where at every turn it has broadened the scope the statute and the potential for liability. Even if Griffin were correct that earlier versions required Secret Service authorizations of restrictions, the Court cannot reconstitute provisions that Congress has jettisoned. And the Court cannot agree with Griffin that woven through these increasingly broad versions of the statute was a latent limitation that only the Secret Service could effectively post, cordon off, or restrict an area.

But in the wake of the description in Jon Karl’s book of where Mike Pence hid from the rioters, Smith tried again, arguing that because the space where Mike Pence was evacuated was a garage for another building of the Capitol. Smith argued that meant Pence was not present (and therefore the necessary trigger for 1752 was absent). Smith wants the photos that the Secret Service assuredly wants to keep secret (because it reveals the location of a VIP security location), though the language he cites appears to prove him wrong.

The Senate garage, and underground tunnels leading to it, do not fall under the statutory definitions of the Capitol Building and Capitol Grounds. As shown above, all the features making up the “United States Capitol Grounds” are, appropriately enough, above ground. § 5102(a). As to whether the tunnels and Senate underground garage are part of the “Capitol Building” itself, Title 40 answers in the negative. “Capitol Buildings” are defined as follows:

[T]he term “Capitol Buildings” means the United States Capitol, the Senate and House Office Buildings and garages, the Capitol Power Plant, all buildings on the real property described under section 5102(c) (including the Administrative Building of the United States Botanic Garden) all buildings on the real property described under section 5102(d), all subways and enclosed passages connecting two or more of those structures, and the real property underlying and enclosed by any of those structures. 40 U.S.C. § 5101 (emboldening added).

As seen above, the definition of “Capitol Buildings,” plural, distinguishes between the tunnels and underground garages, on the one hand, and the “United States Capitol” building itself, on the other. The “subways,” underground “enclosed passages,” and “garages” are not part of the “United States Capitol” building (the “restricted” building) because they are set off from one another by commas in a list.

Photographic evidence showing that the Secret Service protectee was not present in the § 1752 “building” or “grounds” at the same time as Griffin is Brady material. It should be produced by the government. If it is not, the Court should dismiss the charges pursuant to Local Criminal Rule 5.1(g)(4), as Griffin would then be denied access to evidence going to the heart of his case.

The government response didn’t address “what is a garage.” In a footnote, DOJ says that the photos would not be exculpatory in any case.

The government rejects the Defendant’s contention that the photographs that are the subject of the Defendant’s motion have some exculpatory value. 18 U.S.C. 1752(a)(1) and (2) criminalizes a person entering a restricted area “of a building or grounds where the President or other person protected by the Secret Service is or will be temporarily visiting.” 18 U.S.C. 1752(c)(1)(B). 18 U.S.C. 1752 does not require the Secret Service protectee to be present on the grounds or in the building where the restricted area has been established at the time of an illegal entry into the restricted area. Therefore, the Vice President’s presence in an underground parking garage or tunnel does not exculpate the Defendant with respect to the charged conduct.

But the bulk of the response says that the photos are not Brady because the government doesn’t have possession of the photos.

Brady material is material in the government’s possession that has some exculpatory or impeachment value. United States v. Nelson, 979 F.Supp.2d 123 (D.C. Cir. 2013). The photographs requested by the Defendant from the official White House photographer are not in the government’s possession, therefore, they are not considered Brady and the Defendant cannot move to compel their production.1 United States v. Flynn, 411 F.Supp.3d 15 (D.C. Cir. 2019) (“Brady does not extend to information that is not within government’s possession…”). Similarly, the Defendant’s request for these photographs under Federal Rule of Criminal Procedure 16(a)(1)(E) should be denied, as Rule 16 only requires the government to disclose photographs within its possession. Fed. R. Crim. P. 16(a)(1)(E).

It’s not clear exactly what DOJ means by this. But according to President Obama’s White House photographer, Pete Souza, the photos should be in the Archives.

The Presidential Records Act requires that all records including “photographs” be turned over to the National Archives at the end of each administration. This includes Vice Presidential records. Congress should determine why the Archives doesn’t have them.

My guess is that’s precisely where they are, but they don’t count as being in the Executive Branch’s possession because of the way the Presidential Records Act deals with Presidential files. As the National Archives explained in Trump’s lawsuit, Trump’s records count as Presidential records for a period.

In 1978, guided by the Supreme Court’s reasoning in Nixon v. GSA, 1 Congress enacted the PRA, which changed the legal ownership of the official records of the President from private to public, and established a new statutory structure under which Presidents, and subsequently NARA, must manage the records of their Administrations. Under the PRA, records reflecting “the activities, deliberations, decisions, and policies” of the Presidency are “maintained as Presidential records.” 44 U.S.C. § 2203(a). When a President leaves office, the Archivist “assume[s] responsibility for the custody, control, and preservation of, and access to” the Presidential records of the departing administration. Id. § 2203(g)(1). The Archivist generally must make records covered by the PRA available to the public under the Freedom of Information Act (FOIA) starting five years after the President leaves office. Id. § 2204(b)(2), (c)(1); see also 36 C.F.R. § 1270.38. However, the outgoing President may specify that access to records in six defined categories be restricted for up to twelve years after leaving office. 44 U.S.C. § 2204(a); see also 36 C.F.R. § 1270.40(a).

We know Trump is asserting that right with respect to January 6, because as we speak, Trump is asking the Supreme Court to uphold his claim that no one else can access his records without his permission.

Of course, Judge McFadden could order DOJ that it needs to search the Archives for matters pertinent to the investigation — this investigation, and January 6 generally.

I’m sure DOJ would love that! In the case of Griffin, that would give DOJ access to the meeting that Griffin had directly with Trump, and any other contacts that are stored as Presidential Records.

But in the case of Nick Smith’s other clients — most notably Ethan Nordean — it would make records of Trump’s contacts with Proud Boys available, including records on what Enrique Tarrio was doing at the White House in December 2020.

So by all means, let’s have the Trumpiest Judge order DOJ to search through Trump’s records to find discovery pertinent to the January 6 attack, including the pictures of Mike Pence hiding from Trump’s mobsters. But along with that, let’s have the records of Trump’s contacts with them in advance of the insurrection.

The post Pandora’s Presidential Archives, Couy Griffin Edition appeared first on emptywheel.

Reporting on the January 6 Investigation: emptywheel Brings Receipts

I spend a lot of time complaining about what “TV lawyers” claim on TV and Twitter. In response, people often say that Harvard professors or former AUSAs of course must know better than me what the investigation looks like.

So I thought I’d bring receipts. I just got my quarterly bill for PACER, the shitty system via which one obtains court records for $.10 a page. Here’s what it looks like:

The reason I’m posting it is not to ask for donations — though as a reminder, this is my day job and we rely entirely on reader support to pay the bills; if you’d like to chip in I would love the support.

It’s to provide a sense of how big the January 6 investigation is and how much journalistic labor it takes to understand it. While January 6 is not the only case I’m following closely, it obviously dwarfs everything else.

According to PACER I paid to download 8,906 pages in the last three months; I downloaded a ton more (for free) from RECAP. While there’s a lot of boilerplate in the January 6 filings, I read most of them fairly closely, some of them very very closely. I did all that while also following a goodly number of the court hearings in the investigation (because of COVID protocols, I can do that from Ireland).

There are only a handful of journalists who are covering the investigation with this kind of attention — though I imagine Zoe Tillman, Seamus Hughes, Ryan Reilly, Politico collectively, and the rest of that handful have had huge PACER bills for the last year (Hughes always has huge PACER bills, because he spends hours extracting amazing stories from it, on all topics).

When TV lawyers tell you what there is or is not evidence in the January 6 investigation, you might ask them how many thousands of pages of court filings they read before they came to that conclusion. Because chances are very good they’ve read almost none of it.


Key January 6 posts

The Structure of the January 6 Assault: “I will settle with seeing [normies] smash some pigs to dust”

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

The Six Trump Associates Whom DOJ Is Investigating

January 6 Is Unknowable

“I’m Just There to Open the Envelopes:” The Select Committee and DOJ Investigations Converge at Mike Pence

DOJ’s Approximate January 6 Conspiracies

Easy Cases: Why Austin Sarat’s Argument That Trump Should Not Be Prosecuted Is Wrong

How a Trump Prosecution for January 6 Would Work

The post Reporting on the January 6 Investigation: emptywheel Brings Receipts appeared first on emptywheel.