Trump lashes out at Gov. Doug Ducey following certification

Re: Trump lashes out at Gov. Doug Ducey following certificat

Postby admin » Fri Jun 04, 2021 12:13 am

Senate Republicans Block Insurrection Investigation While Courts Go Hard After Insurrectionists
by Glenn Kirschner
May 28, 2021

Today we are witness to a tale of two insurrections (Cleveland Meredith Jr. & Karl Dresch). Senate Republicans vote against an investigation into the insurrection. Whereas the courts, specifically DC District Court Judge Amy Berman Jackson, issues lengthy legal opinions castigating Donald Trump, his loyal media networks and political leaders in state and federal government for continuing to endanger our nation by continuing to promote the Big Lie. Here's a discussion of the implications of today's Senate vote and of Judge Jackson's orders denying pretrial release for two insurrectionists.

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Re: Trump lashes out at Gov. Doug Ducey following certificat

Postby admin » Fri Jun 04, 2021 4:24 am

Order: USA v. Karl Dresch
by Judge Amy Berman Jackson
May 27, 2021
Document 25 Filed 05/27/21

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

Case 1:21-cr-00071-ABJ

Crim. Action No. 21-0071 (ABJ)

UNITED STATES OF AMERICA, v. KARL DRESCH, Defendant.

ORDER

Defendant has been indicted on five counts: (1) Obstruction of an Official Proceeding and Aiding and Abetting in violation of 18 U.S.C. §§ 1512(c)(2), 2; (2) Entering and Remaining in a Restricted Building or Grounds in violation of 18 U.S.C. § 1752(a)(1); (3) Disorderly and Disruptive Conduct in a Restricted Building or Grounds in violation of 18 U.S.C. § 1752(a)(2); (4) Disorderly Conduct in a Capitol Building in violation of 40 U.S.C. § 5104(e)(2)(D); and (5) Parading, Demonstrating, or Picketing in a Capitol Building in violation of 40 U.S.c. § 5104(e)(2)(G). Indictment [Dkt. # 5] at 1-3.

Defendant was arrested on January 19, 2021, see Rule 5(c)(3) Docs. [Dkt. # 7] at 1, and the government moved for pretrial detention pursuant to 18 U.S.C. § 3142(f)(2). Mot. for Detention [Dkt. # 23-1]. Defendant was ordered detained after a hearing before a Magistrate Judge in the Western District of Michigan on the grounds that the government had established that he posed a danger to the community and well as a risk of flight. Order of Detention Pending Trial [Dkt. # 18-6] at 2. The Magistrate Judge checked off boxes on the preprinted form to indicate that factors bearing on the decision included: "[the] Weight of the evidence is strong," "Prior criminal history," "History of violence or use of weapons," and "Prior attempt(s) to evade law enforcement." Id. at 2-3. The Magistrate Judge added:

In addition, the undersigned finds by clear and convincing evidence that no condition or combination of conditions of release will reasonably assure the safety of any other person and the community based on[:]

(1) Defendant's possession of firearms and ammunition following a felony conviction,

(2) Defendant's posting of statements reflecting a willingness to engage[] in additional actions that are similar to those he took on Jan. 6, 2021[,] and

(3) Defendant's willingness to flee pursuing police officers at high speed in 2013.


Id. at 3 (citations omitted).

On April 1, defendant filed a motion to "lift his preventive detention in this case." Mot. to Lift Preventive Detention and P. & A. in Supp. Thereof [Dkt. # 16] ("Mot.") at 1. In addition to making legal arguments, defendant has submitted numerous letters of support from members of his community. See Letters of Support [Dkt. # 16-1] ("Letters'').1 The government opposed the motion, Gov't Resp. to Mot. [Dkt. # 18] ("Opp."), and the Court held a hearing on the motion on May 3, 2021. Min. Entry (May 3, 2021). The issue has been fully briefed. See Def.'s Reply to Opp. [Dkt. # 20] ("Reply"). For the following reasons, the motion will be DENIED.

BACKGROUND

I. Defendant's Participation in the Attack on the United States Capitol


Defendant was arrested on January 19, 2021 after agents from the Federal Bureau of Investigation ("FBI") received a tip that he had posted information regarding his participation in the events now known as the Capitol Riots to his social media accounts. Statement of Facts [Dkt. # 1-1] ("SOF") , ¶ 11. Shortly thereafter, a search warrant was issued for additional information associated with defendant's Facebook account. Id. ¶ 12. The search revealed the following:

• On November 23,2020, defendant posted: "It's war everywhere if we let this election get stolen." Ex. 6 to Opp. [Dkt. # 18-7].

• On December 16,2020, defendant posted: "Stop the Steal." SOF ¶ 13.

• On December 20, 2020, the day after then-President Trump tweeted, "Big protest in DC on January 6th. Be there, will be wild!"2 defendant posted: "7-4-1776= 1-6-2021." SOF ¶ 13.

On January 3, 2021, defendant posted a series of messages announcing that he was preparing to go to Washington, D.C., that he was "prepared for chemical attacks and whatnot," and "NO EXCUSES! NO RETREAT! NO SURRENDER! TAKE THE STREETS! TAKE BACK OUR COUNTRY! 1/6/2021 =7/4/1776." SOF ¶ 14.

• On January 5, 2021, defendant commented: "Stop the steal! this is the last stand of The United States of America to remain free." Ex. 8 to Opp. [Dkt. # 18-9].

• On January 6, 2021, defendant posted photographs of a group approaching the Capitol along with the caption "Who's house? OUR HOUSE!" SOF ¶ 16.

• Defendant exchanged messages with other Facebook users on January 6, 2021, stating: "Patriots are in the Capitol building now"; sending pictures of groups inside of the building; and noting that he had "[ b]een using" a mask to protect against gas used by the police. He sent selfies from outside of the Capitol with captions such as "Just had a beer on our front porch," and "That's right outside the house of representative ... we got in! Took a lil gas ... wtf I love masks now!" As defendant put it, they "Had the cops booking it." SOF ¶ ¶ 21,23-26.3

• Defendant also posted a picture with the caption "We are in," SOF ¶ 17, which appears to depict an area inside of the U.S. Capitol Building. See also Mot. at 7 ("Admittedly, the government does appear to have video and pictures that show that Mr. Dresch was inside the Capitol with the protesting crowd on January 6."); Opp. at 4 ("The FBI shared the post with a U.S. Capitol Police Officer, who confirmed that it accurately depicts the inside of the U.S. Capitol Building, specifically, the 'Crypt,' a location under the rotunda in the center of the Capitol.").

• Defendant continued to communicate by social media into the evening: posting "I'm excited!"; commenting "Total Victory!" on a picture of a crowd at the Washington Monument; commenting on another user's post that "It was peaceful ... still got a lil gas tho ... mask on for safety"; and commenting on another post that "we broke no glass no shoving I seen." SOF ¶ ¶ 27-28.

• Defendant ended the day by posting a video taken earlier at the U.S. Capitol Visitor's Center:

Okay all you conspiracy theorists [winking smiley face emoji] don't worry I loves yous all just setting the record straight.antifa did not take the capitol.that was Patriots, I can't guarantee there weren't some shit birds in the crowd but what multi-million crowd can you guarantee?.don't give them the thunder, we the people took back our house, the news is all bullshit.and now those traitors Know who's really in charge. And I can't say I saw any violence from our people, despite all the poking of the capitol police, gassing randomly into women and children being peaceful, beating old men we kept it chill. 4


SOF ¶¶ 19-20.

The social media activity continued after January 6.

• On January 7, 2021, defendant commented on an unidentified post that "Mike Pence gave our country to the communist hordes, traitor scum like the rest of them, we have your back give the word and we will be back even stronger." SOF ¶ 28.

• In another message dated January 7, defendant stated:

Bro you shoulda been there .... the news is all fake ... and just to correct shit .. we wasn't violent but we took the capitol .... antifa didn't do it they may have had some idiots undercover in the crowd but it was us that got in ... and we didn't fuck shit up ... I seen a broken window ... we picked up water bottle s and shit cleaned up .. it was grand ... best day ever ... I think it was a good show of force ... look what we can do peacefully, wait til we decide to get pissed.


Ex. 15 to Opp. [Dkt. # 18-16]. Defendant concluded: "And look if they can't hold the capitol with thousands of cops, how can they tell us what to do 1000 miles away." Id.

On January 11 and 12, 2021, defendant messaged a series of comments:

"Haha you think I trust these airwaves . . . fuckheads up there are mass snitching me to feds."

• "Look up []."5

"Fuck her what they got .. call the cops bitch lol ... I ain't saying shit."

"Alright bro just wanted to holler let everyone know ... stand by and watch your block."

"Yes but when it's everywhere makes it so much harder to stop us."

Ex. 13 to Opp. [Dkt. # 18-14] at 1-4; see also Opp. at 15.

Later on January 12,2021, defendant returned to the subject of the person he had previously discussed:

• "Ya I looked at her shit and the ones commenting on it are the same."

• "They're the ones always mess with my Facebook ads."

• "Now they wanna snitch me out lol .. bunch of losers."

"I sent her thing to tons of Patriots now it's gone haha, I'm sure I made a FBI folder but fuck it I know who my enemies are."

Ex. 14 to Opp. [Dkt. # 18-15]; see also Opp. at 15-16.

II. Searches of Defendant's Residence

After defendant was arrested, FBI agents searched his residence in Calumet, Michigan. Opp. at 6. The government's opposition describes the initial search:

Among other items, agents located several hundred rounds of rifle (7.62) ammunition, a Russian rifle, shotgun shells, a shotgun, and an Atlanta Braves backpack. See Exhibit 2, Search Warrant Inventory. The ammunition was located in multiple places throughout the house, including the dining room, the master bedroom, an upstairs hall room, and inside the backpack. Exh. 2. Specifically, the backpack contained a Pilot gas station receipt from Hagerstown, Maryland dated January 5, 2021, a Metro SmartTrip card, and 8 boxes of 7.62 ammunition, containing a total of 160 rounds. See Exhibit 3, FBI 302 dated 1/29/21 of Contents of Backpack, and Figures 2a-2c. The boxes matched the boxes of ammunition found in the house. See Figure 2a and 3c. The firearms were identified in the Michigan State Police Report as a Mossberg 12-gauge shotgun and a Russian-made SKS 7.62 mm x 39 caliber rifle. See Exhibit 3b, Michigan State Police Report dated January 19, 2021.


Id. at 6-7 (some italics omitted). The search warrant inventory, Ex. 2 to Opp. [Dkt. # 18-2], provides additional information: the backpack with ammunition was found in the family room, and more ammunition was found in the dining room. Search Warrant Inventory at 3; see also Opp. at 6. Even more ammunition, as well as the shotgun and a "hand gun pistol grip," were found in the "2nd floor hall rm," and the Russian-made rifle was found in the main bedroom, as well as still more ammunition. Search Warrant Inventory at 3-4,6; see also Opp. at 6. The next day, agents with the Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF") obtained and executed a search warrant as well; those agents found two additional firearms - a Glock pistol and a Remington rifle - and even more ammunition. See Ex. 4a to Opp. [Dkt. # 18-4] at 3 ("ATF Search Warrant Inventory"); see also Ex. 4b to Opp. [Dkt. # 18-5]; Opp. at 9-10. The ATF inventory reveals that the Glock was found loaded in a bedroom closet; two more boxes of ammunition were found on the front porch in a laundry basket; eight more boxes of ammunition were found in a dining room cabinet; and the Remington rifle was found loaded in a closet of a different bedroom. ATF Search Warrant Inventory.

Since that time, defendant's mother has submitted materials to ATF indicating that she is the owner of the residence where the firearms were found, although she does not live there and has not lived there since she bought the home in 2008. See Reply ¶ 12; see also Materials Submitted to ATF [Dkt. # 20-1] ("ATF Materials") at 1. She explained that "the Russian rifle, the Glock, and one of the shotguns" belong to her, ATF Materials at 9; they became her property in 2006 when her husband passed away. Reply ¶ 12; see also ATF Materials at 3. She states that she left the firearms at the house now occupied by defendant because she has "never had any interest in owning a gun, and actually feel[s] nervous around guns," so she preferred not to have the weapons at her primary residence. ATF Materials at 1.6

STANDARD OF REVIEW

The Bail Reform Act of 1984, 18 U.S.C. § 3142 et seq., starts with the proposition that the judicial officer shall order pretrial release on personal recognizance or an unsecured appearance bond unless he or she determines that release will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community. See id. § 3142(b). If conditions are required, the law provides that the defendant shall be released subject to the condition that he not commit a federal, state, or local crime, and subject to the least restrictive further condition, or combination of conditions, that the judicial officer determines will reasonably assure the appearance of the person and the safety of any other person and the community. See id. § 3142(c)(1).

If the judicial officer finds after a hearing that "no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community, the judicial officer 'shall' order the detention of the person before trial." 18 U.S.C. § 3142(e)(I). Under the terms of the statute, the facts the judicial officer relies upon to support a finding that no conditions will assure the safety of the community must be supported by clear and convincing evidence. 18 U.S.C. § 3142(f). The statute is silent on the level of proof required to establish that the defendant poses a risk of flight, but the D.C. Circuit has ruled that such a finding need only be supported by a preponderance of the evidence. United States v. Simpkins, 826 F.2d 94, 96 (D.C. Cir. 1987), quoting United States v. Vortis, 785 F.2d 327, 329 (D.C. Cir. 1986). Even if the defendant does not pose a flight risk, danger to the community alone can be a sufficient reason to order pretrial detention. United States v. Salerno, 481 U.S. 739, 751 (1987) ("When the Government proves by clear and convincing evidence that an arrestee presents an identified and articulable threat to an individual or the community ... a court may disable the arrestee from executing that threat."); Simpkins, 826 F.2d at 98.

The government may only move for pretrial detention in the limited circumstances that are enumerated in the Act. See 18 U.S.C. §3142(f). In this case, the government moved for detention under subsection (f)(2), which provides that the judicial officer shall hold a hearing upon motion of the government or its own motion in a case that involves "(A) a serious risk that such person will flee; or (B) a serious risk that such person will obstruct or attempt to obstruct justice, or threaten, injure, or intimidate, or attempt to threaten, injure, or intimidate, a prospective witness or juror."

When community safety is the basis for detention, the government must prove the need for detention by clear and convincing evidence. United States v. Smith, 79 F.3d 1208, 1209 (D.C. Cir. 1996). To determine whether the government has carried its burden, the Court must consider: (1) "the nature and circumstances of the offense charged, including whether the offense is a crime of violence," (2) "the weight of the evidence against the [defendant]," (3) "the history and characteristics of the [ defendant]," and (4) "the nature and seriousness of the danger to any person or the community that would be posed by the person's release." 18 U.S.C. § 3142(g). This is a forward-looking inquiry; "a defendant's detention based on dangerousness accords with due process only insofar as the district court determines that the defendant's history, characteristics, and alleged criminal conduct make clear that he or she poses a concrete, prospective threat to public safety." United States v. Munchel, 991 F.3d 1273, 1280 (D.C. Cir. 2021); see also Salerno, 481 U.S. at 752.

Finally, although the D.C. Circuit has not yet addressed the issue, courts in this district and many other circuits agree that the district judge should review de novo a detention decision rendered by a Magistrate Judge. See, e.g., United States v. Hassanshahi, 989 F. Supp. 3d 110, 113 (D.D.C. 2013); United States v. Koenig, 912 F.2d 1190, 1191 (9th Cir. 1990) (collecting cases); United States v. Stewart, 19 F. App'x 46, 48 (4th Cir. 2001); United States v. Gonzales, 149 F.3d 1192 at *1 (10th Cir. 1998); United States v. Hazime, 762 F.2d 34, 36 (6th Cir. 1985); United States v. Portes, 786 F.2d 758, 761 (7th Cir. 1985).

ANALYSIS

I. Defendant is eligible for detention under 18 U.S.C. § 3142(t)(2).


Defendant argues that that government lacked sufficient grounds to move for his detention under the Bail Reform Act. Mot. at 6-7. Section 3142(f)(2) states that the judicial officer shall hold a hearing upon motion of the government or its own motion in a case that involves "(A) a serious risk that such person will flee; or (B) a serious risk that such person will obstruct or attempt to obstruct justice, or threaten, injure, or intimidate, or attempt to threaten, injure, or intimidate, a prospective witness or juror." The government contended at a status conference held on May 12, 2021 that once the initial detention determination has been made, the question of eligibility under section 3142(f) is no longer reviewable, and the only issue before the Court is whether there was clear and convincing evidence to support a finding that the defendant posed a danger or proof by a preponderance that he posed a risk of flight. The Court need not address the question of whether it has authority to reverse a Magistrate Judge's determination that section 3142(f) applies, since its decision below reflects that defendant's own statements and his criminal record supplied grounds to conclude both that there was a serious risk defendant would not reappear and that he would threaten or intimidate someone associated with the case.

II. The section 3142(g) factors support detention on the grounds of dangerousness by clear and convincing evidence.

A. The nature and circumstances of the offense charged


The United States Capitol was not open to the public on January 6, 2021. SOF ¶¶ 3-4.

There was important business going on, though, because on that day, in accordance with Article II, Section 1 of the Constitution, a joint session of Congress was convened to certify the vote of the Electoral College in the 2020 Presidential Election.

This was after every single one of the fifty states, including those under Republican control or with Republican election officials, had certified its own count, and after court challenges to those counts or certifications had been rejected by more than sixty courts across the country - by state judges, and also by federal judges appointed by Presidents of both parties, including former President Trump. Vice President Mike Pence, also a Republican, was present and presiding, as the Constitution required. See U.S. Const. art. II, § 1.

The United States Capitol Police, federal law enforcement officers surrounding the building, and the members of the District of Columbia Metropolitan Police Department who were summoned to assist, were overcome.

Defendant was one of many individuals who made their way through the barricades and past the officers who were attempting to keep the crowd away from the building. He was one of the individuals who entered the closed building.
See Mot. at 7; Opp. at 4. And that day, the certification process prescribed by the Constitution was interrupted as members of Congress of both parties and the Vice President had to be spirited to safety or were forced to barricade the doors or hide.

Defendant is charged with five counts related to his entry into the Capitol on January 6th. See Indictment. As the D.C. Circuit has noted, "[ i]t cannot be gainsaid that the violent breach of the Capitol on January 6 was a grave danger to our democracy." Munchel, 991 F.3d at 1284. The nature and circumstances of the offense charged are quite serious. "The actions of this violent mob, particularly those members who breached police lines and gained entry to the Capitol, are reprehensible as offenses against morality, civic virtue, and the rule of law." United States v. Chrestman, No. 21-mj-218 (ZMF), 2021 WL 765662, at *7 (D.D.C. Feb. 26, 2021). However, bond is an individualized determination, and the Court must consider what this particular defendant did, rather than the danger posed by the entire group, and the D.C. Circuit has advised that ''those who actually assaulted police officers and broke through windows, doors, and barricades, and those who aided, conspired with, planned, or coordinated such actions, are in a different category of dangerousness than those who cheered on the violence or entered the Capitol after others cleared the way." Munchel, 991 F.3d at 1284.

Defendant is alleged to have entered the building itself, which is more troubling than merely being present on the grounds; "[a] defendant who remained only on the grounds surrounding the Capitol exhibited less brazen disregard for restrictions on unlawful entrants than did a defendant who breached the interior of the Capitol building." Chrestman, 2021 WL 765662, at *8.

However, it is also true the government has presented no evidence that defendant assaulted anyone, nor is he alleged to have been one of the rioters who broke down physical barriers such as doors or windows. Cf. Munchel, 991 F.3d at 1284. Defendant is also not alleged to have been a leader or coordinator of the attack.7 These are aspects of the nature and circumstances of the offense that must be weighed in his favor.

But even though defendant does not fall within the most serious category of offenders described in Munchel, there are many aspects of his participation that do not bode well for the future, and the record does not support the narrative advanced by many who wrote letters on his behalf who suggested that he merely got swept up in what others were doing.

Many wrote to say what they think defendant would or would not do, and the letters included a common refrain:

• A childhood friend: defendant "got caught up in everything that happened in January." Letters at 2.

• The Houghton Country Sheriff: "I believe [defendant] to be more a follower who went to have his voice heard and got caught up in the crowd and followed in." Id. at 4.

• Another longtime family friend: "While [defendant] may have been in the wrong place at the wrong time and got swept up in the unfortunate events of the day, I can not imagine that he had any intent to inflict injury to persons or property." Id. at 11.

• His pastor: "[As] a fairly quick judge of character ... I do not believe that [defendant] is any real danger to our community or our government. I 'think' that [ defendant] got wrapped up in a movement and made some very foolish decisions." Id. at 5.

• A public school administrator: "I truly believe that [defendant] got caught up in the emotions of the crowd." Id. at 15.

But bond is not just an individualized determination, it is a determination based on facts. So it is necessary to dig deeper to decide whether defendant was someone who unwittingly found himself in the center of a maelstrom or if he planned to get past the cordon of police officers and enter the Capitol building all along.

The social media posts from before January 6 bear on that question. Six weeks earlier, on November 23, 2020, defendant posted: "Its war everywhere if we let this election get stolen," Opp. at 13, and he was posting the rallying cry, "Stop the Steal," as early as December 16, 2020. SOF ¶ 13. On December 19, then-President Trump tweeted: "Statistically impossible to have lost the 2020 Election. Big protest in DC on January 6th. Be there, will be wild!" The very next day, defendant posted, "7-4-1776 = 1-6-2021." SOF ¶ 13. What did he mean? On January 3, 2021, he announced that he was preparing to go to Washington, D.C., and he was "prepared for chemical attacks and what not," proclaiming, "NO EXCUSES! NO RETREAT! NO SURRENDER! TAKE THE STREETS! TAKE BACK OUR COUNTRY! 1/6/2021=7/4/1776." SOF ¶ 14. On January 5, he added: "Stop the steal. this is the last stand of The United States of America to remain free."[/b] Ex. 8 to Opp.; see also Opp. at 13.

Defendant argues that another communication from the same date establishes that he never had any plan to attack the Capitol - he just drove all the way to D.C. to attend a peaceful rally:

In the exchange, the other individual asks the person identified as Mr. Dresch, "What's the goal of this [going to D.C. on January 6]?" The individual then continues, "I heard they are going to start a civil war if things don't go our way." To this, the person identified as Mr. Dresch responds, "Ya it may be necessary some day but could be done peacefully I think, I just figured Trump said be there maybe he needs bodies or something .... I'm not sure the point but Trump's the only big shot I trust right now so I'm going, making a trip out of it so even if it's pointless." This message makes clear that, as late as the day before, the person identified as Mr. Dresch on Facebook had no plans to do anything on January 6 other than to be present in D.C. to support the then-sitting president. Moreover, it is clear that the person was only envisioning engaging in peaceful activity. Thus, despite the government's arguments to the contrary, it is clear that, at least as of the day before, Mr. Dresch had not intended to engage [in] any illegal activity on January 6.


Reply ¶ 8.

But counsel's interpretation is not entirely consistent with what defendant wrote. While defendant did not advocate violence, and he expressed a view that it "could be done peacefully," the exchange does not go so far as to suggest that he did not intend to engage in any illegal activity: entering the Capitol on January 6 at all, even peacefully, was illegal. Defendant also agreed that "civil war" "may be necessary someday," and that he was going to be in Washington because Trump said to be there and "maybe he needs bodies or something." The fact that he was willing to be one of the available "bodies," even if it might turn out to be "pointless" and the civil war would be necessary some other day, is consistent with the evidence that it was his plan to "Stop the Steal," not to just "be present" and hear a speech about it.

Defendant's actions once he got to Washington also support that conclusion. He did not stand by; he did not cheer for his candidate in Freedom Plaza and then go home. As the group approached the Capitol, he posted, "Who's house? OUR HOUSE!" SOF ¶ 16. At 3:14 p.m., he announced that he had achieved his aim, posting a photo of himself in an area called the Crypt that was closed for the day with the caption, "We are in." Id. ¶ 17. He exchanged messages with others: "Patriots are in the Capitol building now." Id. ¶ 21. In other words, the entry into the building was the point all along, and it was what he was happy about.


The caption to the video he posted later that day emphasized the point:

Ok all you conspiracy theorists ... don't worry I loves you all just setting the record straight.antifa did not take the capitol.that was Patriots ... don't give them the thunder, we the people took back our house, the news is all bullshit.and now those traitors Know who's really in charge.


SOF ¶¶ 19-20 (emphasis added); see also Ex. 15 to Opp. ("Bro you shoulda been there .... the news is all fake ... and just to correct shit .. we wasn't violent but we took the capitol .... antifa didn't do it ... it was us that got in.") (emphasis added). What's more, defendant bragged that they "Had the cops booking it." SOF ¶ 26 (emphasis added). These are not the comments of someone who was overwhelmed by events he did not anticipate.

At this point in the case, though, the purpose of analyzing the nature and circumstances of the offense - and the other 3142(g) factors - is to discern what they tell us about the future, not the past. As part of that exercise, it is useful to review what happened afterwards. After he had been inside the closed federal building, did defendant calm down? Was he chastened by the reports of serious injuries and even deaths that resulted from the attack?

On January 7, 2021, defendant commented on an someone else's Facebook post: "Mike Pence gave our country to the communist hordes, traitor scum like the rest of them
, we have your back give the word and we will be back even stronger." SOF ¶ 28 (emphasis added). Defendant's promise to take action in the future cannot be dismissed as an unlikely occurrence given that his singular source of information, see Reply ¶ 8 ("Trump's the only big shot I trust right now"), continues to propagate the lie that inspired the attack on a near daily basis. See generally From the Desk of Donald J. Trump, https://www.donaldjtrump.com/desk (last visited May 27, 2021).8 And the anger surrounding the false accusation continues to be stoked by multiple media outlets as well as the state and federal party leaders who are intent on censuring those who dare to challenge the former President's version of events.

So, the first factor weighs in favor of defendant and against a finding of dangerousness in that he did not break windows or doors to gain entry, and he did not harm anyone on the premises. But he did enter the building and did not simply stand in solidarity with the President outside, and his statements before, during, and after give rise to concerns that defendant was not only an enthusiastic, boastful participant in the assault on democracy that day, but that he stands ready to do it again.


B. The history and characteristics of the defendant

Defendant's motion summarizes the many letters from supporters in the community that were attached as exhibits:

It is clear from letters that Mr. Dresch lives in a community where he is well known, valued, and trusted. The letters are consistent in stressing Mr. Dresch's humble and gentle nature and the essential goodwill he has for his family, friends, and neighbors. The letters unqualifyingly present Mr. Dresch as a non-violent person. The letters are from people of all walks of life in Mr. Dresch's community and include letters from the local sheriff, a local mayor, and the pastor of Mr. Dresch's church.


Mot. ¶ 6.

The Court has read and considered the letters. It agrees that one must take defendant's connection to the community and his record of being non-violent, friendly, kind, and helpful to others, particularly elderly neighbors, into account when looking at who it is that is seeking to be released. Defendant is reportedly a hard worker and a loving son and father. But other than defendant's local lawyer (who is also the town's mayor), who conceded, "to be candid, [defendant] has occasionally exercised rather poor judgement," Letters at 13, the letter writers, while sincere, only shed light on a part of the total picture.9 Few of them grapple with the serious nature of the charges as they muse about what they think must have happened; none mention or even seem aware of the tone or content of defendant's Facebook posts, cf id. at 10 ("I have never once seen him angry or combative"), and only the lawyer and the sheriff appear to be aware of any previous brushes with the law.10

And when considering this factor, the Court is obliged to take defendant's criminal history, which is documented in the Pretrial Services Report, into account as well. Defendant was first arrested in Georgia in 2001. PSR at 4. He was charged with Driving Under the Influence of Alcohol and Marijuana Possession; the case was later dismissed. Id. In 2008, defendant was arrested in Lake Linden, Michigan, and initially charged with Assaulting/Resisting/Obstructing a Police Officer; he pled guilty to Disturbing the Peace. Id. In 2010, defendant was arrested in Houghton, Michigan, and charged with vehicle-related crimes: "Motor Vehicle - Operate Without Security," "Operate Owner Permitting Another to Violate Motor Vehicle Code," and "License Plate, Registration, Title - Unlawful Use." Id. One count was dismissed, and defendant paid a fine for the other two. Id. In 2011, defendant was again charged with Obstructing an Officer, this time in Waukesha, Wisconsin. Id. He pled guilty and paid a fine. Id.

Most seriously, defendant was convicted of felonies in two states after he led police officers on a high-speed chase in June of 2013. PSR at 4-5. Defendant, who was already traveling at more than seventy miles an hour when the police tried to stop him for speeding, rapidly doubled his speed. Id. at 5. He "traveled at rates of up to 145 miles per hour" while attempting to evade the officers, crossed state lines from Wisconsin into Michigan, and finally came to a stop "with smoke coming from the rear tires." Id. While the police were in pursuit, defendant swerved around other vehicles in no-pass zones, ignored stop signs, "nearly struck an eastbound motorcycle before swerving back into [his] lane of travel" (which almost caused the motorcycle to hit the pursuing officer), and "narrowly avoided a head on collision with an eastbound pickup truck." See Ex. 12 to Opp. [Dkt. # 18-13] ("Police Report") at 7-8. When defendant was arrested, deputies "found multiple empty beer cans in the back seat,"11 and defendant "was found to have a breath alcohol content of .07 percent." PSR at 5. Based on these events, defendant pled guilty to felony charges in Wisconsin in 2014 and Michigan in 2017, and he spent eleven months in jail in Wisconsin and one year in jail in Michigan.
PSR at 4-5.

Defendant attempts to minimize the significance of this pair of convictions by emphasizing that the events took place eight years ago, and that he has "extremely strong ties to his community." Mot. at 6. Also, at the bond review hearing, his attorney attributed defendant's recklessness to too much alcohol as opposed to a disrespectful attitude towards law enforcement. But eight years ago is not the distant past, especially since defendant was thirty-two years old at the time of the arrest, and the date of the second disposition, in Michigan, was reported by Pretrial Services to be December 11, 2017. PSR at 4.!2 In any event, on top of the fact that it was defendant who made the decision to combine alcohol with being behind the wheel in the first place, it is fair to say that even highly intoxicated drivers often pull over when the sirens begin to blare behind them. This defendant chose to place the lives of numerous officers, motorists, and bystanders at risk instead, and this is not the only offense on his record that relates to obstructing the police. These circumstances bear directly upon the assessment of his dangerousness, and they will weigh heavily in the analysis of the risk of flight as well. And, as the Magistrate Judge pointed out, defendant further showed his contempt for the law with his possession of multiple firearms notwithstanding these two prior felony convictions. See Order of Detention Pending Trial at 3.

The defense and some of the letter writers would have the Court overlook the firearms, too. They inform the Court that gun ownership is common in the Upper Peninsula. See, e.g., Letters at 4. This may be true, but it does not address the potential illegality of the gun ownership by a person with two prior felony convictions. Defendant's pleadings characterize the weapons that were seized as "unremarkable," Mot. ¶ 8, and counsel explained that defendant kept them only "for hunting and home protection." Id. ¶ 10. Defendant scoffs at the discovery of 'just two shotguns, an old rifle and a handgun," id. at 10, saying there is "nothing concerning about them," id, and that they are not "modern firearms," id ¶ 8, and he makes particular efforts to minimize the 7.62 mm, 39 caliber, Russian-made rifle. See Reply at 8 ("The SKS rifle that was allegedly found at Mr. Dresch's residence is not a modern rifle. Internet research shows that the SKS rifle was manufactured in Russia for its Army starting in 1945. The SKS rifle was last manufactured in Russia in 1958. The rifle allegedly found at Mr. Dresch's residence would therefore have to be at least over 60 years old.") (citation omitted).

But if the Russian rifle is of so little use, what would justify the quantity of 7.62 ammunition found throughout the house - in the dining room, the main bedroom, the top of the stairs,13 and even in the backpack that appears to have traveled with defendant to Washington?14 Ex. 2 to Opp; at 3-4; Ex. 4b to Opp. at 3. And if the pistol is just an old relic that belongs to defendant's mother, why does defendant have a supply of bullets for that as well; even more concerning, why was it loaded? ATF Search Warrant Inventory at 2. The Remington shotgun was also found loaded, id., and ammunition for that was in the dining room and a laundry basket on the front porch. Id. at 3; Ex. 4b to Opp. at 3. In sum, there was a weapon or ammunition in almost every room in the house, some of it simply characterized by the first set of officers as "8 boxes of misc. ammunition." ATF Search Warrant Inventory at 3. Is this unsecured and scattered collection of firearms and ammunition15 consistent with the sheriffs assurances that, in his community, "people are trained to respect the weapons for their intended use for sport"? Letters at 4. Is this how a responsible sportsman with a thirteen-year-old child in the house stores his equipment?16

Thus, while there are aspects of defendant's history and characteristics that count in his favor, there are also facts that weigh heavily in favor of detention, especially when one considers them in tandem with defendant's boast that law enforcement cannot stop him from doing what he wants to do, especially from "1000 miles away." Ex. 15 to Opp.

C. The weight of the evidence against the defendant

The weight of the evidence is strong. Defendant posted pictures and videos from within the Capitol Building on his social media accounts, and the posts from both before and after reveal that was where he wanted to be. Defendant acknowledges that the government has evidence that he was present in the Capitol. Mot. at 7 ("Admittedly, the government does appear to have video and pictures that show that Mr. Dresch was inside the Capitol with the protesting crowd on January 6."). And he recognizes that "this evidence might go some way towards helping it get convictions against Mr. Dresch for the four misdemeanor counts it has charged him with." Id. But defendant argues that there is limited support for the felony charge of obstructing an official proceeding: "t is less clear how the government can prove that Mr. Dresch intended his conduct to be anything more than an act of protest - as opposed to an attempt to actually obstruct Congress from performing its duties." Id

But as the Court has already detailed in connection with the first factor, defendant's own words and deeds are entirely consistent with the grand jury's determination that it was defendant's objective to enter the building to interrupt the official proceedings - or, as he put it, to "[s]top the steal." SOF ¶ 13; see also Ex. 8 to Opp. The timing of defendant's entry into the Capitol was hardly coincidental. It came on the date that Congress was set to certify the Electoral College vote count, and defendant had been posting about the significance of the date since mid-December. See SOF ¶ 14 ("NO EXCUSES! NO RETREAT! NO SURRENDER! TAKE THE STREETS! TAKE BACK OUR COUNTRY! 1/6/2021 =7/4/1776.").

Courts in other circuits have cautioned, though, that a district court assessing the evidence should not consider the weight of the evidence of defendant's guilt, but rather must consider only the weight of the evidence of defendant's dangerousness. United States v. Stone, 608 F.3d 939, 948 (6th Cir. 2010); see also United States v. Gebro, 948 F.2d 1118, 1121 (9th Cir. 1991) (holding that section 3142(g) "neither requires nor permits a pretrial determination of guilt").

All of this evidence gives rise to serious concerns in that regard as well. And while the D.C. Circuit may have implied that the unparalleled events of January 6 were a unique confluence of circumstances that have passed, Munchel, 991 F.3d at 1284 ("the specific circumstances of January 6 have passed"), defendant has made clear that he sees that date as part of a broader effort. As he stated a month before the trip: "[i]ts war everywhere if we let this election get stolen." Ex. 6 to Opp.; see also Opp. at 13. His view at the end of the day? "[ b]est day ever ... I think it was a good show of force ... look what we can do peacefully, wait til we decide to get pissed." Ex. 15 to Opp. And he announced the next day: "give the word and we will be back even stronger." Ex. 10 to Opp. [Dkt. # 18-12]. In the exchange quoted in his motion, defendant stated, "Trump's the only big shot I trust right now," Reply ¶ 8, and for Trump, the effort to-challenge the result of the election is not over. So it is quite concerning that in the very email that the defense asked the Court to consider, defendant agreed that "[y]a," a civil war "may be necessary some day." Id.

D. The nature and seriousness of the danger to any person or the community that would be posed by the defendant's release

Here again, it is defendant's own pronouncements that give rise to significant concerns. On January 7, defendant went well beyond exulting in a political message conveyed on January 6 when he posted:

"it was grand ... best day ever ... I think it was a good show of force ... look what we can do peacefully, wait til we decide to get pissed."

"And look if they can't hold the capitol with thousands of cops, how can they tell us what to do 1000 miles away."


Ex. 15 to Opp.; see also Opp. at 16. After that, defendant got wind of how others were reacting to what had occurred, and he took particular offense at those who were identifying participants for the FBI. On January 11 and 12, 2021, defendant said, among other things:

• "[F]uckheads up there are mass snitching me to feds."

• "Look up []."

• "Fuck her ... call the cops bitch lol ... I ain't saying shit."

• " ... [i]when it's everywhere makes it so much harder to stop us."
Ex. 13 to Opp. (emphasis added); see also Opp. at 15. On January 12, he says more about the person he believed had posted information about individuals who participated in the attack:

• "Ya I looked at her shit and the ones commenting on it are the same."

• "Now they wanna snitch me out lol .. bunch of losers."

• "I sent her thing to tons of Patriots now it's gone haha."

Ex. 14 to Opp.; see also Opp. at 15-16. The record does not indicate precisely what defendant said when he sent the materials on, but his own observation was:

• "I'm sure I made a FBI folder but fuck it I know who my enemies are." Id. (emphasis added).

Given defendant's offer to return to Washington to engage in a similar effort to disrupt democratic processes again, his warning that authorities here cannot reach him at home, the utter contempt he showed for law enforcement and the safety of the community during the high speed chase, the threatening remarks directed at an individual who was reporting participants in the attack to the FBI, defendant's other convictions for obstructive conduct, and his knowing possession of multiple weapons and a considerable supply of ammunition after two felony convictions, the Court has clear and convincing reasons to believe that defendant poses a danger to the community that cannot be alleviated by the imposition of any conditions.

III. The Court finds by a preponderance of the evidence that there is a risk that defendant will fail to appear.

All of this evidence also supports a finding by a preponderance of the evidence that there is a risk that if released, defendant will fail to appear for trial. Defendant maintains that the presence of family and friends and his long-standing ties to the community suggest that he would not leave the Upper Peninsula to abscond to Canada. But the concern is not whether he would up and move to another country; the concern is whether he will conform to his obligations and appear in this Court, and respect its orders when he is supposed to. Defendant has given the Court plenty of reasons to be concerned that he will be resistant to reappearing if released, and that it would not go well if the Court had to send the U.S. Marshals to collect him. Defendant's criminal record, and the evasive and obstructive conduct that the felonies represent, weigh heavily against defendant's release, just as they would in the case of a local defendant - with real ties to this community - in any other case in this courthouse.

For all of these reasons, defendant's motion to be released on bond will be DENIED.

AMY BERMAN JACKSON
United States District Judge

DATE: May 27, 2021

_______________

Notes:

• From R.G. (defendant's childhood and lifelong friend): "[Defendant] is an intelligent individual, and a very caring friend. He is generous, always willing to help a friend in need. . .. I have never seen [defendant] act violent, lash out, or even act physically or verbally aggressive or confrontational toward anyone. He is a kind, sensitive, thoughtful individual, who has strong political beliefs, but is not a threat to anyone, ever .... It saddens my heart to know that [defendant] got caught up in everything that happened in January." Letters at 2.

• B.Y. (defendant's neighbor and friend): "[Defendant] is a fine, upstanding, conscientious young man, a good father, ... and a wonderful son. He is a hard worker and has always been someone that others could count on to do a good and thorough job, such as shoveling snow as a teenager for older neighbors and helping his mom with difficult maintenance jobs in her home .... There is not a malicious bone in his body. I believe in his integrity and goodness as a person." Id. at 3.

B.M. (sheriff of defendant's county of residence): "The Dresch family has always had a good and solid reputation here .... I believe [defendant] to be more a follower who went to have his voice heard and got caught up in the crowd and followed in and posted his photos to prove to everyone that he had made his statement." "[T]here were weapons [law enforcement] found at [defendant's apartment], but nearly all homes here have weapons." Id. at 4.

• T.L. (pastor of a local church): "[Defendant and his wife] are not yet members of the church." "We have shared a few meals together, and [defendant] has done some work for the church. . . . That is the extent of our relationship." "[As] a fairly quick judge of character ... I do not believe that [defendant] is any real danger to our community or government. I 'think' that [defendant] got wrapped up in a movement and made some very foolish decisions." Id. at 5.

• R.P. (knew defendant since defendant was five): "[Defendant] has been a polite and kind young man. He is the kind of son who helps his elderly mother. . . . He also does heavy chores for her." "[Defendant] is also a good father to his 13-year-old son who, needs him in his life." Id. at 6.

• D.C. (defendant's childhood friend): "I have grown to know my friend as a kind, caring, and thoughtful person with little to no ego .... [Defendant] has a brilliant, articulate, keen mind. . .. In all the years I've known him, I've never seen him with a temper, never seen him yell at anyone. Violence is not in his nature, he would never be capable of it, nor would he ever condone it." "[Defendant] believes in high moral values, love and thoughtfulness, along with the truth." Id. at 7.

• R.S. (defendant's neighbor): "[Defendant] has always been a very polite considerate young man - a good member of our community .... He did participate in the Jan 6th uprising. Perhaps he was misled by the former President Trump's rhetoric and conspiracy theorists. [Defendant] is a fine young man. He would never have any evil intentions of any kind." Id. at 8.

• L.M. & R.M. (defendant's aunt & uncle ): "[Defendant] is a talented man with an excellent work ethic .... In our observation, [defendant] has been respectful and considerate of the family, old and young. He is not an angry or violent person." "May it be taken into consideration that no damage or violence was exhibited by [defendant]." Id. at 9.

• T.S. (defendant's childhood friend): "In the countless great times I have spent with [defendant] I have never once seen him angry or combative." "It would be a great disservice to justice to persecute this man for supporting the cause of freedom and truth. I implore the court to consider the reality of the events of January 6th and not to the sensational headlines that media has chosen to paint what happened that day with ... I know [defendant] was not there to do anything other than support a cause he believed in." Id. at 10.

• A.P. (defendant's longtime family friend): "While [defendant] may have been in the wrong place at the wrong time and got swept up in the unfortunate events of the day, I cannot imagine that he had any intent to inflict injury to persons or property." Id. at 11.

• F.W. (has known defendant for twenty-five years): "[Defendant] has always enthusiastically embraced the U.S. Constitution and the Bill of Rights but is not inclined to violence or destructive behavior." "[Defendant] is certainly not a 'rabble-rouser' and while his passions for his country and patriotism for the American people sometimes carry him to over-enthusiasm, his actions do not warrant further incarceration!" Id. at 12.

• P.L. (defendant's longtime friend and local attorney): "[Defendant] has very strong political views concerning government, in particular the legislative and executive branches, and law enforcement." "[T]o be candid, [defendant] has occasionally exercised rather poor judgement." "I have never known [defendant] to be violent in any way nor do I believe him to be flight risk nor a person who would obstruct justice." Id. at 13.

• S.F. (casual acquaintance of defendant for past two years): "I can vouch for [defendant's] sincere friendly character, morals and integrity over the time I have known him." Id. at 14.

• J.B. (member of the public school administration): "I am hoping that you will be able to see [defendant] as a good person separate from his entering the Capitol. I truly believe that he got caught up in the emotions of the crowd. . .. In [ defendant]'s case, he has also been vilified in the press both nationally and locally. People in Houghton County ... have unfairly been called extremists. This couldn't be farther from the truth unless one is an extremist merely by virtue of being a Republican." Id. at 15.

2 President Trump's Twitter account is no longer accessible, but the tweet was widely reported on at the time. See, e.g., Trump promises 'wild' protest in Washington DC on Jan. 6, claims it's 'impossible' he lost, Fox News, https://www.foxnews.com/politics/trump- ... n-dc-jan-6 (Dec. 19,2020).

3 Defendant regularly uses ellipses in his messages. Though defendant often did not space out his ellipses, e.g., writing ... rather than . . ., the Court has taken the initiative to space out ellipses even when quoting defendant in order to improve the readability of the messages.

4 This video was posted shortly after midnight, so the date is technically January 7, 2021. SOF ¶ 20.

5 The Court has chosen not to include this person's name.

6 In the reply, the defense emphasized, "[t]hus, it appears that at least three of the four guns found at Mr. Dresch['s] residence had initially been placed there for storage several years before Mr. Dresch even moved in." Reply ¶ 12. But at the hearing, counsel did not dispute that defendant knew they were there. The Pretrial Services Report reflects that as of the time of the search, he had been living in the house for more than three years (since January of 2018). Pretrial Services Report [Dkt. # 21] (SEALED) ("PSR") at 1. And while defendant's mother averred that she stored the guns in a closet at least ten years ago, see ATF Materials at 1, the Russian made rifle that had been her husband's was found in the master bedroom. See ATF Search Warrant Inventory.

7 Defendant did generally encourage others to join the cause. For example, defendant posted, "NO EXCUSES! NO RETREAT! NO SURRENDER! TAKE THE STREETS! TAKE BACK OUR COUNTRY! 1/6/2021=7/4/1776." SOF ¶ 14. However, this does not rise to the level of leading or coordinating.

8 As another court in this district has noted, "If defendant truly believes that the only reason he participated in an assault on the U.S. Capitol was to comply with President Trump's orders, this shows defendant's inability (or refusal) to exercise his independent judgment and conform his behavior to the law." United States v. Chansley, No. 21-cr-3, 2021 WL 861079, at *10 (D.D.C. Mar. 8, 2021); see also United States v. Whitton, No. 21-cr-35-5, 2021 WL 1546931, at *12 (D.D.C. Apr. 20, 2021) ("While the certification of the 2020 Presidential Election is now complete, and President Biden has taken office, the Court is not convinced that dissatisfaction and concern about the legitimacy of the election results has dissipated for all Americans. Former President Donald J. Trump continues to make forceful public comments about the 'stolen election,' chastising individuals who did not reject the supposedly illegitimate results that put the current administration in place.") (citations omitted).

9 Many of the letter writers did not appear to know the forty-year-old defendant very well although they knew or thought well of his accomplished father and mother, who were prominent members of the community. See generally Letters (reporting that he is "a fine, upstanding, conscientious young man"; "certainly not a 'rabble-rouser"'; "a polite and kind young man"; "a very polite considerate young man.").

10 The Court also received a letter from a Michigan resident asking that defendant be detained pending trial and emphasizing the seriousness of his conduct. See Letter to the Court [Dkt. # 22] ("I support your decision to keep Mr. Dresch in jail for two reasons. First because of his own behavior but equally so because of the context of domestic terrorism.").

11 The PSR only mentions empty beer cans, but the police report states that officers found not just empty beer cans, but full beers, an almost empty bottle of tequila, and another half full bottle of liquor. See Police Report at 9.

12 These facts suggest that the Court cannot put much stock in the sheriff's statement that "although in his teens [defendant] had a few brushes with local law enforcement ... [he] settled down a lot as he grew older." Letters at 4.

13 The area at the top of the stairs is variously treated as an open area, a closet, and a "hall room," so though the reports vary with how they characterize this area, the Court is under the impression that these discoveries may all be from the same area.

14 The backpack also contained a January 5, 2021 receipt from a gas station in Hagerstown, Maryland. Ex. 3 to Opp. [Dkt. # 18-3] (noting miscellaneous papers and unattached photos of such); see also Opp. at 6.

15 The amount of ammunition, the fact that the weapons were not all secured in the closet where defendant's mother supposedly stored them a decade ago, and the assertion that defendant had the firearms on hand for hunting and for protection are all inconsistent with counsel's suggestion at the hearing that defendant did not "possess" the guns.

16 Defendant also attempts to stir up suspicion about the origin of the weapons based on the fact that only two guns were observed and seized during the initial search on January 19, and that the house was left unattended and unlocked between that time and the January 21 search by the ATF agents that produced two more firearms. He argues that "it appears that some, if not all, of the items may have been placed in the residence after the first search." Reply, ¶ 13. At the hearing, the government emphasized that the first set of agents was not there to look for firearms. But in addition, a close look at what was found on each date undermines the suggestion that the guns were somehow nefariously planted in the interim. Defendant's mother asserted ownership over "the Russian rifle, the Glock, and one of the shotguns," ATF Materials at 1, and she averred that at some point between 2008 and 2011, she placed them all in "upstairs bedrooms closets." Id. The Russian rifle was found the first day, along with one shotgun. Search Warrant Inventory at 3. But it was the Glock pistol and the second shotgun that were recovered two days later in upstairs closets, where defendant's mother stated they'd been stored. ATF Search Warrant Inventory at 3. And it is the Glock and its ammunition that defendant's mother asked to have returned. ATF Materials at 1.
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Re: Trump lashes out at Gov. Doug Ducey following certificat

Postby admin » Sat Jun 12, 2021 12:16 am

Republican Lawmaker in Oregon Expelled for Helping Armed Protesters Enter State Capitol
by Amy Goodman
Democracy Now
JUN 11, 2021

Lawmakers in Oregon have voted to expel Republican state Representative Mike Nearman after video surfaced showing him literally opening the door to let armed right-wing protesters enter the state Capitol in December at a time when the building was closed to the public. Days before the incident, Nearmen spoke on a live stream where he gave out his phone number and explained how he could help them get inside.

Rep. Mike Nearman: “If you say, ’I’m at the west entrance,’ during the session and text to that number there, that somebody might exit that door while you’re standing there.”


The breach of the Oregon Capitol occurred about two weeks before the January 6 insurrection at the U.S. Capitol. Meanwhile, six California men, including a former police chief, have been indicted on federal conspiracy charges for their role in the January 6 insurrection in Washington. Several of the men are connected to the far-right Three Percenters movement.

******************************

Showing D.C. How It’s Done: Oregon Boots Lawmaker Who Aided State Capitol Incursion
State representative Mike Nearman was caught on video opening the door of the state capitol to an armed incursion, completing what he’d referred to as “Operation Hall Pass”

by Tim Dickinson
Rolling Stone
June 11, 2021

PORTLAND, OREGON — Official accountability for the January 6th insurrection at the U.S. Capitol is not coming quickly. GOP politicians who saluted, inspired, or even abetted the militants who stormed the Capitol chanting, “Hang Mike Pence!” have not been investigated. And Republicans in the Senate have blocked the formation of a bipartisan commission to probe that day’s dark events. In striking contrast, lawmakers in Oregon, from both parties, have moved decisively to expel a Republican state representative who literally opened the door for a group of armed protesters who staged a similar incursion of the state capitol in Salem last December.

State Rep. Mike Nearman is the first state representative ever to be removed from office in Oregon. The vote to expel him was 59-1, with Nearman casting the only vote in his favor. (In January Nearman released a statement insisting: “I don’t condone violence nor participate in it.”)

Nearman — whose wacky official bio touted his past work as a grave digger and a degree in computer science that confirmed he was “educated beyond his intelligence”— has represented a rural district west of the capital city since 2015. On the morning of December 21st, right-wing agitators, including members of the Washington-state based Patriot Prayer, assembled to protest the fact that state business was being conducted behind closed doors. Because of Covid restrictions, the Capitol building had been closed to the public, but the sessions were broadcast, and public input was enabled via phone and video links.

The protest quickly turned to vandalism as some attempted to break down doors to the building. Nearman was caught on surveillance video opening a door to a group of agitators, some of whom were armed with long guns. The agitators entered the state Capitol, where Nearman’s colleagues were in session. The intruders soon clashed with State Police in riot gear, who were able to turn back the incursion despite being maced with bear spray. Four agitators were arrested.

Dan Tilkin
@DanTilkinKOIN6
JUST IN: surveillance video at the Oregon Capitol shows @Oregon_GOP Rep. Mike Nearman opening the door for right wing demonstrators on December 21st. Nearman is under @ORStatePolice investigation. koin.com/news/protests/...

1:35 PM Jan 8, 2021


In recent days, another video surfaced making plain that Nearman had aided the agitators on purpose. In the video, filmed in advance of the incursion, Nearman is seen talking to a crowd of right-wing activists about what he calls “Operation Hall Pass.” He gives out what is reportedly his personal cellphone number and tells the activists how they might text that number with information about which Capitol entrance they were gathering at and “someone might exit that door while you’re standing there.”

John Scott-Railton
@jsrailton
NEW FOOTAGE: watch Oregon's @RePNearman tell people, step-by-step, how to breach the Oregon Capitol... with his assistance.
Days later, the breach happened.
Videos adapted from @Oregonian
Story oregonlive.com/politics/2021/...


“We had a state Rep., let me remind you, a state Rep. open that door for us,” Joey Gibson, the founder of Patriot Prayer, said in a video posted to Parler in January.

Prior to being expelled, Nearman had faced a unanimous call to resign from his GOP state house colleagues, who wrote: “Given the newest evidence that has come to light regarding the events of December 21, 2020, it is our beliefs as friends and colleagues that it is in the best interest of your caucus, your family, yourself, and the state of Oregon for you to step down from your office.”

But Nearman had remained defiant, telling local Rush Limbaugh wannabe Lars Larson, “I’m not gonna resign,” and instead called for the resignation of the speaker of the state house, a Democrat. “At the end of the day, it’s not about safety,” Nearman told Larson. “They don’t want you in the building. They don’t want your listeners in the building. And they don’t want people like me in the building when they pass their vaccine mandates and they wanna take away your guns and all that kinda stuff.”


In addition to his historic expulsion, Nearman has been charged with a pair of misdemeanor crimes in relation to the state capitol incursion.
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Re: Trump lashes out at Gov. Doug Ducey following certificat

Postby admin » Mon Jun 14, 2021 7:18 am

Boston Globe Editorial Board Advocates Prosecuting Donald Trump. Here's Why They're Right
Glenn Kirschner
Jun 12, 2021

The Boston Globe Editorial Board published a six-part series laying out the case for prosecuting Donald Trump as the only way to protect and preserve our democracy. This video exposes why the more traditional remedies of the ballot box and legislation will not be enough for our nation to recover from four years of a runaway criminal president who continues to assert that the election results are not legitimate. Here's why prosecuting Trump and other criminal politicians for their crimes is the most important and effective step we can take in our quest to save our democracy.

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Re: Trump lashes out at Gov. Doug Ducey following certificat

Postby admin » Mon Jun 14, 2021 7:26 am

Future-Proofing the Presidency: Donald Trump brought our democracy to the brink and exposed its weak spots. How to thwart the next American tyrant.
by The Editorial Board
Boston Globe
June 14, 2021

Image
PHOTO ILLUSTRATION BY H. HOPP-BRUCE / GLOBE STAFF; PHOTO BY DOUG MILLS / THE NEW YORK TIMES

• A treasure map for an American tyrant
• Who owns the president?
• A sordid family affair
• Hiding the evidence
• Rewards for doing the president’s bidding
• The case for prosecuting Donald Trump

***

Image
From the moment that Donald Trump took office, he began to profit personally from holding the office of the presidency. Here, President-elect Trump arrives to be sworn in as the 45th President of the United States in Washington Jan. 20, 2017. JIM LO SCALZO / EPA

A treasure map for an American tyrant

Donald Trump exposed the weaknesses in our system of government that could now be exploited by a corrupt leader with control of the White House. In this series, the Globe editorial board outlines the urgent reforms needed to prevent the rise of an American tyrant — and to protect our democracy for posterity.


Before the day Donald Trump moved into the White House in 2017, Americans had never had to contend with a president in such deep financial trouble — and with such determination to conceal his true finances from the public. Trump’s business empire — the one he espoused during the campaign as an example of his purported financial acumen — was nothing more than a hollow gold-plated shell. While he was dumping money into his hotels, his golf courses, and his real estate deals, they were netting him almost nothing but significant losses year after year. By the time he was running for reelection, Trump was over $400 million in debt, most of which would have been due during his second term should he have won in 2020.

And yet for nearly four years, there was effectively nothing whatsoever the public could do about it. As was the case for so many of the countless outrageous abuses of his presidency, the former president largely got away with serving a full term in which he bargained with foreign leaders, signed tax legislation, and named financial regulators, without ever coming clean about his own personal debts and the conflicts of interest and opportunities for corruption they created. While there are supposed to be laws and limits on the presidency, Trump was unrestrained, exposing just how toothless those safeguards have become and just how urgently the nation needs to reform the office of the presidency itself.

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Donald Trump at a campaign event in Vienna, Ohio, March 2016. Trump began one of the most corrupt presidencies in US history on the campaign trail when he failed to disclose his full tax returns and his hundreds of millions of dollars of debt. MARK MAKELA / THE NEW YORK TIMES

Presidents in a democratic system of government are not meant to be able to extract personal profits from government service — or hand out pardons to imprisoned buddies, pervert justice, or foment an insurrection. That’s the promise of democracy: that it will be superior to these authoritarian tendencies of tyrants and kings. When these laws and norms are violated, they should be backed up by severe consequences if that democracy is to maintain its integrity. But right now, as it stands after Trump’s four years in office, American presidents can, in fact, commit all those abuses — and suffer little more than losing their Twitter account.

Trump may not have destroyed the American presidency, but he did put the institution on a perilous path. Because while Trump himself has been sitting in Mar-a-Lago brooding over his loss to Joe Biden, all the weaknesses in our legal and constitutional system that he exploited remain, waiting for a future presidential miscreant to take advantage of them — maybe even for Trump himself, if he is reelected in 2024. That’s why Congress and the current president must act fast and impose more durable legal guardrails on the commander in chief. By passing stronger anti-corruption laws, strengthening existing norms and creating new ones, and deterring future presidents from abusing their power by making an example of Trump and holding him accountable, the country can protect itself against future — and potentially far more devastating — presidential corruption and misconduct. The nation can, and must, prevent the rise of an American tyrant.

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Donald Trump’s purported financial acumen helped him ascend to the nation’s highest office. But it was little more than gold veneer for his growing debts and his abuse of the presidency to enrich himself and his family. MARK MAKELA / THE NEW YORK TIMES

As hard as it might be to imagine in our hyperpolarized political climate, imposing new restrictions on the presidency ought to be a bipartisan cause. For those Trump supporters who delighted in the former president’s transgressions, and loved the way he “owned the libs” by ignoring their nattering on about ethics, remember: Corruption knows no party, and the next crooked president could be a Democrat.

We start with Trump’s stonewalling on his personal debt not because concealing his finances was necessarily the worst offense of his presidency, but because it was surely one of his most brazen. Even low-ranking civil servants have to disclose their personal debts in order to guard against corruption, and yet somehow the man in the Oval Office did not. It’s not that Americans had no idea that Trump was a lousy or crooked businessman — that fact was already well documented. But Trump’s refusal to disclose his taxes and other personal financial details left many wondering what more he was hiding. Did he pay federal taxes? How much? Did he have significant debts to foreign actors or others to whom he would be beholden?

"Our norms only go so far in protecting the democracy. Our laws only go so far."

— Adam Schiff


The last four years underscored just how corruptible the presidency is. Whether dealing with issues of foreign policy, the economy, or race, Trump’s self-interest was his administration’s north star. His tax cuts served him. His attorney general acted as if he were the president’s personal attorney. And he failed to protect the nation from an attack led by his sympathizers. His national security officials downplayed white supremacist threats because he allegedly lost interest in pursuing investigations of violent threats the minute he would find out that the perpetrator was one of his supporters. Olivia Troye, who worked as a homeland security and counterterrorism advisor to Vice President Mike Pence, told the Globe editorial board that there was an expectation of officials to not talk about white nationalism when sending intelligence up the chain to the president. “We [didn’t] talk about white supremacy,” she said, describing the culture of the Trump White House.

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From the White House, Donald Trump ignored the danger of white supremacist groups, and equivocated on the threat they posed to American values and the homeland. After the 2017 Charlottesville, Va., rally that recruited KKK members such as this one from Harrison, Ark., Trump argued that there were good people “on both sides.” Trump later went on to foment an insurrection and attempted coup with the support of white supremacist groups. EVELYN HOCKSTEIN / PHOTO FOR THE WASHINGTON POST

An aggressive Congress might have been able to thwart the corruption and abuses of power of the 45th president. Broadly speaking, Congress is supposed to be the main check on the presidency and, in theory, it still could be. But its primary instrument for curbing the presidency — impeachment — has turned out to be a blunt and, in modern times, ineffective weapon. The Trump years demonstrated that too: Twice impeached for clear violations of the public trust, Trump was twice acquitted by senators in his own party.

Ultimately, Congress proved itself a deeply flawed check on an authoritarian president willing to break the law out in the open — and sometimes even admit it on national television. “Our norms only go so far in protecting the democracy. Our laws only go so far. Even our Constitution — as brilliantly written as it is — only goes as far as the men and women are willing to give its provisions meaning,” Representative Adam Schiff, Democrat of California, who served as the lead House impeachment manager during Trump’s first impeachment trial, said in an interview. “If you acknowledge, as many of the Republican senators did during the trial, that the House had proved the president guilty but you still make the decision to acquit, there’s nothing much that the Constitution can do to protect us.

"Democracies don’t die suddenly; they’re poisoned by strongmen who systematically chip away at checks on their power."


“It didn’t require a great clairvoyance to see that if he was guilty and then nonetheless acquitted” in the first trial, Schiff said, “that he would [violate his oath] again in new and perhaps even more debilitating ways.”

The failure of the existing accountability system in the Constitution not only enabled Trump to act on his worst impulses. It also may very well have made his presidency a prelude to something much worse. Because democracies don’t die suddenly; they’re poisoned by strongmen who systematically chip away at checks on their power, just as Recep Tayyip Erdogan has done in Turkey, Narendra Modi in India, or Viktor Orbán in Hungary. Even with Trump out of office, American democracy is becoming weaker as long as his deeds go unpunished and the system is unchanged. The next Trump will have an easier time usurping it.

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Members of the National Socialist Movement, one of the largest neo-Nazi groups in the US, hold a swastika burning after a rally in April 2018 in Draketown, Ga. From the White House, Donald Trump ignored the danger of white supremacist groups, and equivocated on the threat they posed to American values and the homeland.Trump later went on to foment an insurrection and attempted coup with the support of white supremacist groups. SPENCER PLATT / GETTY IMAGES

There are many people who, justifiably, want to move on from the horror show that was Trump’s presidency. It was riddled with scandals, and it often felt like each day presented a new unprecedented crisis (or two). But that would be extraordinarily irresponsible. Shown how weak our system of government has become, we have an obligation to fix it.

The American Constitution, as designed by the original Framers, proved to be an incredibly powerful document. But the Framers’ vision was not the sole reason the Constitution was able to sustain a democracy for over 200 years. Waves of American visionaries fought and sacrificed their lives to improve the Constitution and expand American democracy, as was done, for example, with the 13th and 14th, and 19th Amendments. As has always been the case in American history, a strong and resilient democracy requires an active and engaged citizenry, one that is willing to constantly work to improve what they already have. The United States is in desperate need of that kind of commitment and work today.

In this series, the Globe editorial board outlines the key presidential reforms that would prevent a future authoritarian president — perhaps a more competent one than Trump — from abusing their power and subverting our democracy. Just because President Biden has restored a semblance of normalcy to the White House, Americans should not be lulled into inaction. Our government survived a scrape with authoritarian corruption. Next time, we might not be so lucky.

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Trump International Hotel & Tower, New York, March 2019. Donald Trump was riddled with conflicts of interest throughout his time in office and abused the presidency to enrich himself and his family. His refusal to divest from his businesses resulted in him violating the constitution by indirectly receiving money from foreign governments. MICHAEL NAGLE / BLOOMBERG

Who owns the president?

The 45th president was in bed financially with foreign governments, a precedent for America’s enemies to wield influence over the Oval Office. Lawmakers and voters must prevent this from becoming common practice.


As soon as Donald Trump took his hand off Abraham Lincoln’s Bible on Jan. 20, 2017, he broke the oath he had just taken to protect and defend the Constitution of the United States. Never before had the United States elected a president with a sprawling business empire — one that he insisted on keeping ownership of while in office — and Trump stood to have his private organization profit directly from the US government as well as foreign nations while serving in office.

That’s why, within three days of Trump’s being sworn in, Citizens for Responsibility and Ethics in Washington filed a lawsuit against the president to prevent him from illegally receiving money from foreign governments. The violation in question was the foreign emoluments clause of the Constitution, which bars presidents from receiving money or gifts from other nations. And Trump was certainly on the path to breaking the law: Shortly after he won the election in 2016, the Saudi government funneled hundreds of thousands of dollars into his Washington, D.C., hotel by booking 500 of its rooms for their lobbyists.

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Donald Trump abused the presidency to enrich himself and his family. His business dealings also raised questions about whether he was truly representing the nation’s interest or his own. The government of Saudi Arabia made more than $270,000 in payments to the Trump Hotel after his election, just a few months before he finalized one of the largest arms deals in US history with the kingdom. CHIP SOMODEVILLA / GETTY IMAGES

Pocketing money from foreign governments, whether directly or otherwise, presents exactly the kind of situation that the Founders did not want the president to be in. And that’s because the president might show undue deference to an adversarial government, putting his or her own interests ahead of the nation’s.

Take Saudi Arabia’s payments to the Trump Hotel, which totaled $270,000 between November 2016 and February 2017. Those payments came just a few months prior to Trump finalizing one of the largest arms deals in US history with the kingdom. He also later went on to protect the Saudi crown prince, Mohammed bin Salman, after the brutal killing of Washington Post columnist Jamal Khashoggi. “I saved his ass,” Trump bragged to the journalist Bob Woodward, in reference to bin Salman. “I was able to get Congress to leave him alone. I was able to get them to stop.”

It wasn’t just the hotel payments; Saudi Arabia was still paying the Trump Organization tens of thousands of dollars a year for the floor in Trump World Tower that it purchased for $4.5 million in 2001. This is not to say it’s been proved that Trump acted the way he did with Saudi Arabia because of his business ties with them. But it is to say that the Saudis’ money may have, in fact, influenced him. After all, Trump, who was suffocating in debt, probably appreciated the payments, and he certainly didn’t discourage the Saudis from patronizing his businesses.

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Saudi King Salman presented President Donald Trump with the highest civilian honor, the Collar of Abdulaziz Al Saud, at the Royal Court Palace, in Riyadh. President Trump bragged about having protected the Saudi crown prince, Mohammed bin Salman, after the brutal killing of Washington Post journalist Jamal Khashoggi. EVAN VUCCI / AP

Yet despite all of this, Trump faced no legal consequences and was able to continuously violate both the foreign and domestic emoluments clauses throughout his time in office. And that’s because the lawsuit that CREW filed dragged on for four long years. (It was initially dismissed on the grounds that the plaintiff had no right to sue the president, a decision that was reversed on appeal, and was finally dismissed by the Supreme Court only after Trump left office.) All the while, Trump visited his properties hundreds of times — charging taxpayers for the Secret Service’s use of them — and many foreign officials spent their money at his hotels.

That’s just scratching the surface of Trump’s unprecedented conflicts of interest. He was also hundreds of millions of dollars in debt — to whom, the public only partially knows. That’s why Congress ought to ensure that future presidents have as few conflicts of interest as possible. And in order to do that, it should start with two reforms.

"Congress ought to ensure that future presidents have as few conflicts of interest as possible."


The first is to require all future presidents to divest themselves of their businesses and other assets that could pose a potential conflict of interest. The reason for this is simple: No matter how well intentioned a president is, their financial self-interest is bound to cloud their judgment, wittingly or otherwise, when making decisions that affect the whole nation. And though divestment may be perceived as an extreme solution — with some arguing that it would discourage successful businesspeople from running for president and therefore limit the talent pool — it would dramatically reduce the potential for presidents to be in bed financially with foreign adversaries, precluding the need to legally enforce the emoluments clause while someone is in the White House.

The second is to require all future presidents to publicly release their tax returns. Transparency is key to preventing corruption, especially in a democracy. Tax returns would provide far greater insight into a candidate’s potential conflicts of interest, and voters could then decide for themselves whether the candidate was too prone to act in his or her own self-interest. That electoral threat alone could deter would-be presidential candidates from running for office prior to eliminating their financial conflicts of interest.

Before Trump, every president since Jimmy Carter had disclosed their full tax returns in an effort to be transparent about any potential conflicts of interests upon entering office. But that tradition was merely a norm, and because norms are generally enforced by the desire to avoid being shamed, Trump easily maneuvered his way out of it by being himself: shameless. And in resisting the public pressure to release his tax returns, Trump has now set a precedent that candidates do not, in fact, have to release their tax returns. (This has already proved to be the case; in the 2020 Democratic primaries, billionaire Mike Bloomberg followed Trump’s lead and failed to disclose a fully transparent financial report.)

That’s why this norm should be turned into law by Congress.

Of course, transparency alone can only go so far. The public knew, for example, that Trump owned hotels where foreign dignitaries could stay, but that knowledge didn’t prevent him from indirectly receiving money from foreign governments by those means. And Trump’s tax returns — leaked to the press in 2020 — did finally get a public viewing, and yet over 74 million voters chose to vote for him anyway. Saving our democracy from corruption will always rely in part on voters taking conflicts exposed in financial disclosures seriously.

The same is true for divestment: Though it would have dramatically limited Trump’s conflicts of interests, some conflicts, whether political or financial, are always bound to arise given the president’s central role in government. But when they do, the public ought to know, because while Trump was historically corrupt, neither the courts nor Congress held him accountable; in the end, only the voters did.

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Donald Trump took nepotism to a new level, populating the White House with loyalists and family members unqualified for their roles, including his daughter Ivanka Trump and his son-in-law Jared Kushner. BRENDAN SMIALOWSKI / AFP/GETTY IMAGES

A sordid family affair

Donald Trump exploited loopholes to build a White House rife with nepotism. Lawmakers must close them.


On the 2016 campaign trail, Donald Trump told voters that if they elected him, he would surround himself with the “best” and “most serious” people — a dubious claim given that he had long associated with fraudsters and crooks during his turbulent career in the private sector. Quickly after he was elected, however, it became clear that Trump planned on running the government the same way he ran his business: Hire his family to top positions and flood the White House with loyalists. The result was corruption, incompetence, and what clearly did not come close to meeting the bar of “best” or “most serious.”

In fact, two of Trump’s earliest White House appointments were glaring examples of his willingness to engage in petty corruption: On Jan. 9, 2017, Trump hired his son-in-law Jared Kushner as a senior White House adviser, which, only a few months later, was followed by the new president giving a similar role to his daughter Ivanka Trump.

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Donald Trump’s decision to appoint his own family members to high-ranking White House positions resulted in disastrous policy choices, as was the case when his son-in-law Jared Kushner took a leading role in the administration’s pandemic response despite his lack of experience. TASOS KATOPODIS / GETTY IMAGES

These appointments were troublesome for several reasons. First, neither Kushner nor Ivanka Trump had prior qualifications for the work they were assigned, meaning that their appointments were made on the grounds that they had a close relationship with the president. (That relationship would later allow them to get special treatment and give them the ability to flout certain ethics rules.) Second, though both Kushner and Ivanka waived their White House salaries, they still stood to profit from their role in the administration — expanding the Trump family’s use of the presidency as a for-profit operation. And third, such clear displays of nepotism by public officials are illegal — a law that technically applies to the president as well, but in which Trump managed to find loopholes.

While serving in the Trump White House, Ivanka and Kushner did indeed leverage their positions to bolster their profits. Like Trump, neither of them had fully divested from their businesses, and Kushner sold his stake in one of his businesses only after it directly benefited from the tax bill that his father-in-law signed into law. Kushner’s family’s real estate company came under scrutiny on several occasions because his family members appeared to lean on their relationship with the administration. At one business event in Beijing, Kushner’s sister promoted an EB-5 visa program — which grants immigrants a path to citizenship if they invest substantially in a company that creates jobs in the United States — and essentially implied that her relationship with her brother would help expedite a pathway to citizenship for investors in a Kushner-owned property before the visa program rule was set to change the minimum investment from $500,000 to $900,000. And Kushner’s family company had business dealings in Israel even as one of his chief responsibilities included Middle East policy.

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The fact that Ivanka Trump and Jared Kushner did not take government salaries while serving in the White House did not keep them from enriching themselves while holding public office. ALESSANDRO DELLA VALLE / KEYSTONE VIA AP

Trump was hardly the first president to appoint relatives to top jobs; John F. Kennedy famously nominated his brother for attorney general and appointed his brother-in-law as the Peace Corps’ first director. Given that nepotism is an easy opportunity for public officials to turn their public office into a money-making enterprise — one that the Trump family clearly took advantage of — it’s important to crack down on it at every level of government. After all, nepotism is an act of self-enrichment in and of itself and a quintessential example of petty corruption that undoubtedly sows distrust in government.

"Nepotism is an act of self-enrichment in and of itself and a quintessential example of petty corruption."


That distrust would be justified. Filling up key government posts with close relatives of the president, for example, will probably result in a staff that’s more loyal to the president than they are to government institutions, or even to democracy itself. Nepotism is also unlikely to produce the most competent government; Kushner, for example, was profoundly unqualified for his wide-ranging role, and the American people paid the price when he took a leading role in the Trump administration’s coronavirus response.

In democracies, nepotism can quickly grow rampant. In India, for example — the world’s largest democracy — political dynasties have dominated the nation’s politics since the country gained independence from the British. In fact, in 2009, nearly a third of the country’s elected members of parliament had relatives who served in public office immediately before them or at the same time. And that can easily become a relatively accepted norm: According to one survey, 46 percent of Indians said that they would “prefer” voting for a candidate who comes from a political family. (India has been consistently ranked by international corruption watchdog groups as one of the most corrupt countries in the world.)

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Filling government posts with the president’s family members risks officials becoming more loyal to the president than the democratic institutions they are supposed to serve. CHRISTOPHER PIKE / POOL PHOTO VIA AP

In order to eradicate nepotism from government, an example must be set from the very top, which is why Congress should ensure that anti-nepotism laws apply to both the president and vice president.

When Trump hired Kushner, some legal scholars argued that the president does not have to abide by the federal anti-nepotism statute. That’s why, in order to ensure that this degree of corruption does not take place, Congress should pass a bill to make explicit that the president cannot appoint a relative to any official government post, even if they forgo a salary. In the event that a president’s relative is widely perceived to be the best qualified for a certain role, that appointment should require a waiver from Congress so that the candidate can be evaluated on their merits. Appointments of family members should be the exception, not the norm.

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Nepotism erodes trust in government and often results in wholly unqualified people being entrusted with critical roles to the nation’s interests, whether negotiating peace in the Middle East or leading pandemic response. MENAHEM KAHANA / AFP/GETTY IMAGES

There’s also the issue of fixing the existing law. While there does exist a federal anti-nepotism statute, the penalty is to withhold salary from the appointee, and both Kushner and Ivanka had already waived their government salaries. But since that didn’t stop them from using their positions in government to make money in the private sector, it’s clear that anti-nepotism laws should have stricter penalties, including job termination if the appointment is proved to have been made on the grounds of an employee’s relationship to the president rather than their qualifications.

Given just how many conflicts of interest consumed the Trump family while they were in the White House, it’s time to ensure that no future president will follow Trump’s example. Because if nepotism is not seriously addressed, then Trump’s presidency would only serve as a blueprint for other corrupt business families to run for office to expand their wealth in the future.

Nepotism is a defining characteristic of monarchies — a system of government the Founders specifically wanted to expel from the United States. So it’s time for Congress to stop, even on occasion, letting the president be king.

***

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Donald Trump got away with obstructing the investigation into his campaign’s dealings with Russia when it interfered in the 2016 election, also known as the Mueller inquiry. The Mueller report detailed the ways that the president thwarted the special counsel’s efforts to discover the truth about how the Trump campaign may have cooperated with Russia to secure electoral victory.

Hiding the evidence

Donald Trump got away with thwarting investigations of wrongdoing by his campaign and his White House. Without reforms, future criminals could exploit the powers of the presidency to even more dangerous ends.


Right out of the gate, Donald Trump appeared to break the law and brazenly admit it to the entire nation — not with remorse but with pride and conviction. Within four months of being sworn in, Trump fired FBI director James Comey, which the White House insisted was a decision rooted in Comey’s mishandling of the investigation into Hillary Clinton’s private e-mail server. But Trump rebuffed his Department of Justice’s line of reasoning in a television interview with NBC, saying that he was planning on firing Comey because of the investigation into Russian interference in the 2016 election.

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Trump fired then-FBI director James Comey and then admitted on television that he didn’t like Comey’s investigation into Russia’s interference in the 2016 election. Yet Trump managed to stay in office for an entire term despite this obstruction of justice. BRENDAN SMIALOWSKI / AFP/GETTY IMAGES

This was just one of several instances of obstruction of justice outlined in the Mueller report — the culmination of special counsel Robert Mueller’s investigation into the Trump campaign’s involvement in Russia’s election interference. Trump also obstructed justice when he tried to fire Mueller, when he tried to curtail Mueller, and when he ordered his White House counsel to lie about his attempt to fire Mueller. But having faced no legal consequences for these and other attempts to undermine the investigation, Trump unsurprisingly went on to commit the same crime again, and was eventually impeached for obstruction of Congress in a completely different case that involved his efforts to thwart the investigation of a whistle-blower complaint about his corrupt call to the president of Ukraine.

As it stands, Trump’s presidency will only embolden future presidents to abuse their power because he showed impeachment to be a far less threatening tool than it once was. While Richard Nixon’s resignation and the public shaming that came along with it may have served as a warning to his successors of the social and political pitfalls of corruption, Trump’s shamelessness and resilience in riding out both of his impeachment trials until the Senate acquitted him may be a lesson to his successors to double down on their wrongdoings because their own party will protect them.

"Impeachment is not as strong a deterrent as it was before Trump."


This is not to say that impeachment has been rendered a completely useless tool; Congress should still use it when a president is guilty of high crimes or misdemeanors. But impeachment is not as strong a deterrent as it was before Trump. The solution to preventing presidential abuse of power lies in improving the accountability of the president under the law, outside the scope of impeachment, which should be Congress’s last resort. Four things should be done to accomplish that:

First, Congress should strengthen whistle-blower protections. “One of the best, most important ways to constrain and prevent this sort of malfeasance is to provide adequate incentives for and protections for folks who blow the whistle on bad behavior,” said Matthew Stephenson, a Harvard law professor who focuses on anti-corruption. House Democrats introduced legislation, known as the Protecting Our Democracy Act, which seeks to implement a slew of reforms, including expanding whistle-blower protection to political appointees. The reason this is important is that whistle-blowing is effectively a stimulant for investigations. The Ukraine scandal, which led to Trump’s first impeachment, for example, was the direct result of a concerned official raising the alarm.

"Until presidents can be indicted, they will always be, by definition, above the law."


Second, Congress must strengthen its oversight over the presidency in tangible ways. That means being able to more effectively enforce Congress’s subpoena power. “You can’t do oversight without power behind those subpoenas, and you certainly can’t hold a president and an administration accountable if you can’t require them to give information about the conduct of their office and whether they’re faithfully executing the laws,” Representative Adam Schiff of California said.

Indeed, Trump officials were able to evade subpoenas and effectively run down the clock because court proceedings to enforce congressional subpoenas can take a long time. The House, for example, tried but failed to get Don McGahn, who served as White House counsel under Trump, to testify in front of the Judiciary Committee about Trump’s obstruction of justice during the Mueller probe. Although McGahn did cooperate with Mueller, parts of the final report were redacted by the Justice Department. Congress, in its oversight capacity, should have been able to reconstruct parts of the investigation. Doing so may have prevented the Trump administration from getting away with its efforts to spin the final Mueller report as an exoneration of Trump, which it very clearly was not.

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Congressional subpoena power is currently too weak to be an effective check on a corrupt president. Despite efforts by the House of Representatives to demand that Don McGahn, White House counsel under Trump, testify in the Mueller probe, McGahn was able to avoid testifying. DOUG MILLS / THE NEW YORK TIMES

That’s why reforming subpoena power, a critical step in bolstering Congress as a check on the president, ought to include the possibility of fast-tracking court proceedings for congressional subpoenas and issuing fines for those who defy them.

Third, President Biden should appoint a White House ethics czar, which he has yet to do, to ensure that the White House correctly implements and abides by high ethical standards. It’s important for the Biden team to codify in clear terms, for example, the limits of the White House’s interactions with the Department of Justice in order to guarantee greater independence of the department. And there are already clear signs that the Biden team needs an ethics czar: Though Biden has released public logs of White House visitors — something the Trump administration stopped doing — he has chosen not to disclose virtual meetings. This is a mistake, given that transparency in White House communications is a key tool to protect the Department of Justice’s independence. An ethics czar dedicated to getting input from public accountability groups could change such policies and set a new norm.

Lastly, the Department of Justice should revisit its policy, issued by the Office of Legal Counsel, that a sitting president cannot be indicted. This is not the law of the land, and the constitutionality of whether a president can be indicted while in office has yet to be determined by the courts. Rather, it lies in a tradition that began in 1973. The head of the OLC at the time argued in a memo that “a necessity to defend a criminal trial and to attend court . . . would interfere with the president’s unique official duties.”

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Special counsel Robert Mueller considered himself unable to weigh in on the question of whether the president should be indicted for obstruction of justice because of a Department of Justice policy that advises against indicting sitting presidents. That policy must change. MANDEL NGAN / AFP/GETTY IMAGES

It might sound reasonable to say that indicting a sitting president could pose political problems — and potential national security risks — because a criminal trial would effectively incapacitate a president. But an indictment does not necessarily mean that the president has to sit through a criminal trial. That could always be postponed until a president leaves office. In that 1973 memo, the rationale for not indicting a sitting president, even if all proceedings are deferred until they are out of office, rests merely on the perceived damage the image of the office of the president might endure. “The spectacle of an indicted president still trying to serve as chief executive boggles the imagination,” the memo said.

A greater spectacle, however, is a reckless, authoritarian president who is seen on the world stage bending the rule of law to his will. That’s why presidents should be indicted for crimes that they commit, with their trials postponed to when they leave office. Had Mueller been able to operate under a guideline that allowed for Trump’s indictment, the former president probably would have faced legal accountability for his early acts of obstruction of justice. That, on its own, could have deterred him from obstructing justice later in his presidency, as he did during his first impeachment inquiry.

So while presidents should not, for logistical reasons, be required to be a part of a criminal trial while in office, they should not be immune from indictments. Because until presidents can be indicted, they will always be, by definition, above the law.

***

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Donald Trump abused the power of the presidency by pardoning loyalists and friends, including his former campaign chair, Paul Manafort (center), who broke his plea deal and thwarted the investigation into Russia’s interference in the 2016 election and its alleged connection to the Trump campaign. SETH WENIG / AP

Rewards for doing the president’s bidding

Donald Trump’s abuse of the pardon power to reward criminal loyalists is a precedent for a future authoritarian leader to commit crimes without consequence. Its use must be curtailed by Congress.


One of the broadest, most unlimited powers of the president of the United States is the authority to grant pardons. And if it’s used properly, that power can be an incredibly effective — and democratic — tool in righting the wrongs of the country’s criminal justice system. One of Jimmy Carter’s campaign promises, for example, was to pardon the hundreds of thousands of men who had evaded the draft during the Vietnam War, and he signed an executive order to do so on his first full day in office. And in the era of mass incarceration, executive clemency can and should be used as a means to combat an overly criminalizing and punitive system. Barack Obama used his authority to grant pardons to do just that: Most of the nearly 2,000 people whom he granted executive clemency to were people convicted of nonviolent drug-related crimes.

"Trump’s blatantly corrupt use of it should be a wake-up call to lawmakers of both major parties."


But Donald Trump has proved that a president can use his pardon power not as a corrective for injustice but in exchange for political and personal favors — or even as a tool of coercion or manipulation — and get away with it. In stark contrast to his immediate predecessor, Trump granted clemency to only 237 people. And though some of those acts of clemency included commuting unjustly long sentences for minor offenses, over 100 of them, according to the Lawfare Blog, were granted to people who either had personal connections with the former president or advanced his political cause. Trump was hardly the first president to use his pardon power nefariously, but his blatantly corrupt use of it should be a wake-up call to lawmakers of both major parties that executive clemency must be reformed to limit its potential for abuse.

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The president’s pardon power is intended to be a tool of forgiveness to correct for an overly punitive justice system, not a tool to reward criminals who do the president’s bidding. But Donald Trump pardoned Roger Stone in December 2020, after he was convicted of seven felonies including lying under oath. Current laws and norms do too little to stop a president from using their power this way. BRENDAN SMIALOWSKI / AFP VIA GETTY IMAGES

“While the president can by and large pardon whomever he wants, it can be obstruction of justice if the president dangles the possibility of a pardon to stop someone from cooperating with an investigation. And it can be bribery if a president is getting some kind of reward for a pardon,” said Noah Bookbinder, the president of Citizens for Responsibility and Ethics in Washington. “In the case of somebody like Paul Manafort, there might be something there,” Bookbinder said. “It really does appear that the possibility of a pardon was fairly publicly dangled in front of him.”

Manafort, Trump’s campaign chair, agreed to cooperate with federal investigators in their probe into Russia’s 2016 election interference and its ties to the Trump campaign, but afterward, he quickly broke his plea deal and, according to prosecutors, lied to them repeatedly. Trump eventually pardoned him. While there is currently no proof Trump directly offered Manafort a pardon in exchange for not cooperating with the authorities, he did publicly say that he may pardon Manafort while the investigation was still ongoing, and the former president’s lawyer reportedly relayed that information directly to Manafort’s attorneys. That, on its own, could very well be obstruction of justice, and it shows how a president could use pardons to evade accountability for the dirty dealings of their campaigns, or even to cover up their connections, or that they are beholden to foreign adversaries.

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Donald Trump pardoned a longtime friend of his personal lawyer Rudy Giuliani, the former New York City Police Commissioner Bernard Kerik (left), for felony convictions. Future presidents might use the pardon power to even more detrimental effect to shield themselves and their inner circle from those who could testify to their misdeeds or crimes. MARK LENNIHAN / AP

So what exactly can be done about such a broad power bestowed on the president by the Constitution? First, the federal government should follow the example of most states. Instead of the Office of the Pardon Attorney, which oversees clemency reviews and is housed in the Department of Justice, President Biden should establish a clemency board through executive order. That way, with an entire board of various criminal justice experts reviewing petitions together rather than the pardon attorney doing so alone through their office, there would be more eyes on each individual case and a more deliberative process. It should also ensure a transparent process and should be heavily invested in and sufficiently staffed so that it can go through applications more efficiently. While this could be undone by a future president, it would set a new norm for how pardons should be used: to consistently and efficiently undo injustices carried out by federal courts.

"Pardon reform is not a partisan issue — at least not yet."

Second, Congress should muster the will to pass a constitutional amendment that would narrowly constrain the president’s pardon power. This should not be a major curtailment of the president’s power, but rather an effort to reduce the possibility of conflicts of interest and obstruction of justice when it comes to executive clemency. That’s why Congress should strip presidents of the power to pardon themselves, high-ranking administration officials, advisers or senior members of their campaigns, a business associate who worked with the president 10 years prior to entering office, or any person tied up in an investigation involving the president. (Congressman Steve Cohen of Tennessee has introduced similar legislation.) Though constitutional amendments seem to be a chimera these days, both parties in Congress should be wary of the way a president can abuse pardons. And after all, pardon reform is not a partisan issue — at least not yet.

In the end, presidents should retain a relatively broad power to grant pardons. They’re a critical component of the criminal justice system, and often the only hope of granting people a second chance. But so long as Biden and Congress absolve themselves of the responsibility to reform presidential pardons, future abuse of that power is not only likely; it’s inevitable.

***

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Donald Trump’s presidency made clear that our institutions are currently incapable of holding presidents accountable for breaking the law. Unless he faces consequences, the message to future corrupt leaders is that they will not face consequences either. EVAN VUCCI / AP

The case for prosecuting Donald Trump

Saving American democracy for the long run requires a clear condemnation of the Trump presidency. That means making clear that no one is above the law.


Norms in a democracy are only as good as our willingness to enforce them.

After the precedent-busting, lawbreaking presidency of Donald Trump, Congress needs to pass new laws to constrain future officeholders. That’s the case the Globe has made in this series: curbs on the pardon power, safeguards against nepotism, broadening the power of Congress to investigate the president, protections for whistle-blowers, requirements that presidents make financial disclosures to root out conflicts of interest.

All of that is crucial to protect Americans against a repeat of the last four years.

"Presidents also need a clear message, one that will echo through history, that breaking the law in the Oval Office will actually be punished."


But imposing stricter rules on future presidents, by itself, is clearly insufficient. Those presidents also need a clear message, one that will echo through history, that breaking the law in the Oval Office will actually be punished — that ethics policies and legal requirements, both the existing ones and those Congress will hopefully enact in the future, are more than just words on paper.

Trump’s presidency didn’t just expose glaring legal weaknesses: It also made clear that our institutions are incapable of holding presidents accountable for breaking even our existing laws. If Congress had played the role the Founders envisioned, by removing Trump from the presidency after his criminality became clear in the Ukraine affair, that might have been enough of a deterrent to scare future presidents straight. But lawmakers didn’t.

"Filing charges against former leaders is not a radical step."


So now there is only one way left to restore deterrence and convey to future presidents that the rule of law applies to them. The Justice Department must abandon two centuries of tradition by indicting and prosecuting Donald Trump for his conduct in office.

That’s not a recommendation made lightly. The longstanding reluctance to prosecute former leaders is based on legitimate concerns about the justice system being used to settle political scores. But filing charges against former leaders is not a radical step, either: Foreign democracies, including South Korea, Italy, and France, routinely manage to prosecute crooked former leaders without starting down a slippery slope to authoritarianism. President Nicolas Sarkozy of France was recently found guilty of bribery, a decade after his predecessor, Jacques Chirac, was convicted of corruption. France’s democracy and its image around the world remain intact.

In the case of Trump, prosecutors would have plenty of potential crimes from which to choose. While Trump may be prosecuted for financial crimes he potentially committed before he became president, what is most important to go after are his actions during his time in office, especially those after the 2020 election, which culminated in fomenting a full-on, violent assault on American democracy.

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Donald Trump tried to overturn the results of the 2020 election, including by asking Georgia’s secretary of state to “find” enough votes to falsely declare Trump that state’s winner. He also incited his supporters to reject the election’s outcome. Here, supporters of Trump protest in front of the Clark County Election Department in Nevada days after the November election. JOHN LOCHER / AP

First, there are Trump’s repeated attempts to obstruct justice, as documented in former special counsel Robert Mueller’s investigation into the former president’s campaign ties to Russia. As Mueller himself put it, while the investigators operated under the guidelines that a sitting president cannot be indicted — a view this editorial board disagrees with — the point of their investigation was to “preserve evidence” for prosecutors to evaluate after Trump left office.

Second, there are Trump’s efforts to overturn the Georgia election results. Trump’s call to Georgia’s secretary of state, in which he pressured the secretary to “find” enough votes to undo his defeat, was clear election interference, which is a violation of state and federal law. That means both Georgia and federal prosecutors can — and should — investigate the matter further.

Third, there’s Trump’s infamous incitement of insurrection, which he committed on national television. It is a federal crime to incite a riot or insurrection, and though Trump was impeached over this, he was wrongfully acquitted by the Senate, leaving the courts with the responsibility to hold him accountable. Even senators who acquitted him of the incitement charge alluded to the fact that his crime should be dealt with in the criminal justice system. “If you believe he committed a crime, he can be prosecuted like any other citizen,” said Senator Lindsey Graham, Republican of South Carolina, a longtime Trump ally. (And depending on how the investigations go — if prosecutors have enough evidence to show that Trump gave aid and comfort to insurrectionists — there’s a chance sedition charges could be brought against him, just like the charges his supporters who stormed the Capitol are likely to face.)

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Donald Trump incited an insurrection and yet the Senate was still unwilling to remove him from office. There is only one way left to restore deterrence and convey to future presidents that the rule of law applies to them. JOHN MINCHILLO / AP

To avoid a potential political tit for tat, the Department of Justice and state prosecutors must remain completely apolitical in their handling of Trump’s case. “His crimes should be investigated independently, and the president should stay a thousand miles away,” Norman Eisen, a former ethics czar in the Obama administration, said in an interview. That’s exactly what President Biden has done so far, and he should continue to separate himself and resist any urge to weigh in one way or the other.

Congress’s failure to hold Trump accountable is one reason to break with precedent and prosecute him now. Another, perhaps more obvious reason, is that Trump’s misconduct ought to be handled differently because it was different. There’s a far stronger case that he committed serious crimes in office than could plausibly be made against even the country’s most unethical previous presidents. One of the reasons no president in history has been prosecuted for actions stemming from his presidency is that none of them before the 45th tried to instigate a coup.

"A commander in chief tried his very best to subvert democracy. He attacked his own country. Five people died."


The reluctance to prosecute presidents is deep-rooted, and extreme caution does make sense. (The last thing that the country needs is for Trump to be charged, tried, and then acquitted.) But it cannot be the case that there is no line — no hypothetical act of presidential criminality that would not rise to the level of seriousness that merits setting aside our qualms. And if one accepts that there is a line, it’s hard to imagine Donald Trump didn’t cross it. The events of Jan. 6, and those that led up to them, were an extreme abuse of power that few ever imagined a president would commit. A commander in chief tried his very best to subvert democracy. He attacked his own country. Five people died. Allowing him to go unpunished would set a far more dangerous precedent than having Trump stand trial. To reform the presidency so that the last four years are never repeated, the country must go beyond passing laws: It must make clear through its actions that no person, not even the president, is above them.
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Re: Trump lashes out at Gov. Doug Ducey following certificat

Postby admin » Fri Jun 18, 2021 10:30 pm

Questions About the FBI's Role in 1/6 Are Mocked Because the FBI Shapes Liberal Corporate Media: The FBI has been manufacturing and directing terror plots and criminal rings for decades. But now, reverence for security state agencies reigns.
by Glenn Greenwald
Jun 18, 2021

NOTICE: THIS WORK MAY BE PROTECTED BY COPYRIGHT

YOU ARE REQUIRED TO READ THE COPYRIGHT NOTICE AT THIS LINK BEFORE YOU READ THE FOLLOWING WORK, THAT IS AVAILABLE SOLELY FOR PRIVATE STUDY, SCHOLARSHIP OR RESEARCH PURSUANT TO 17 U.S.C. SECTION 107 AND 108. IN THE EVENT THAT THE LIBRARY DETERMINES THAT UNLAWFUL COPYING OF THIS WORK HAS OCCURRED, THE LIBRARY HAS THE RIGHT TO BLOCK THE I.P. ADDRESS AT WHICH THE UNLAWFUL COPYING APPEARED TO HAVE OCCURRED. THANK YOU FOR RESPECTING THE RIGHTS OF COPYRIGHT OWNERS.


-- Proud Boys Leader Secretly Cooperated With F.B.I. and Police: Enrique Tarrio, the chairman of the far-right nationalist group, which is under increasing scrutiny for its role in the Capitol riot, helped to convict more than a dozen people, by Alan Feuer
-- Five, Including F.B.I. Agents, Are Named in a Conspiracy, by Alex Berenson
-- 9/11 Commission Misses FBI's Embarrassing Al Qaeda Dealings, by Peter Dale Scott
-- An Accountable FBI: Robert Mueller Should Resign, by The Wall Street Journal
-- Called Off the Trail?: FBI Agents Probing Terror Links Say They Were Told, "Let Sleeping Dogs Lie"
-- Coleen Rowley's Memo to FBI Director Robert Mueller, by Coleen Rowley
-- Ex-FBI Agent Admits Giving Out 9/11 Data, by Associated Press
-- Memo to FBI Counterterrorism from Phoenix Squad 16 SA Kenneth J. Williams, Re Pentbomb Information Concerning
-- FBI Documents Reveal Secret Nationwide Occupy Monitoring, by The Partnership for Civil Justice Fund
-- FBI Occupy Wall Street Memos Skip Infiltration of Occupy Cleveland, by Huffington Post
-- FBI Surveillance of Occupy Wall Street Detailed, by Huffington Post
-- How FBI Entrapment is Inventing "Terrorists" -- and Letting Bad Guys Off the Hook, by Rick Perlstein
-- Occupy Wall Street: Federal Bureau of Investigation FOIA Release
-- The Plot Against Occupy: How the Government Turned Five Stoner Misfits into the World's Most Hapless Terrorist Cell, by Sabrina Rubin Erdely
-- DOJ report: [Jim] Greenlee retaliated against [Hal] Neilson, by Patsy R. Brumfield
-- Greenlee named to appeals court, by Jeff Amy
-- How The New FBI Damages Democracy, by Ralph Nader and Mike German
-- Indicted FBI agent: Greenlee was out to get me, by Patsy R. Brumfield
-- Dr. Sami Al-Arian Was Arrested by the FBI on Trumped Up Charges
-- When Your Father Is Accused of Terrorism: My dad, Dr. Sami Al-Arian, was arrested by the FBI on trumped up charges, sending a chill through the local Muslim community. Yet we found support from unlikely allies., by Laila Al-Arian
-- FBI once planned to pay former British spy who authored controversial Trump dossier, by Tom Hamburger and Rosalind S. Helderman
-- Here’s How Much The FBI Planned To Pay Trump Dossier Author, by Chuck Ross
-- The FBI Informant Who Monitored the Trump Campaign, Stefan Halper, Oversaw a CIA Spying Operation in the 1980 Presidential Election, by Glenn Greenwald
-- Senators Question Fairness in Probe of FBI Agent, by The Washington Times
-- FBI dispute: Court clears way for FBI agent's book, but retired colleague calls it a hollow victory: Colleague says he sees little hope for reform at FBI, by Todd Lighty
-- FBI Special Agent Robert Wright Subjected to FBI Retaliation for Telling the Truth, by Judicialwatch.org
-- Letter to Mr. Thomas J. Krieir, Special Agent in Charge, by David Schippers
-- Muzzling FBI'S Whistle, by CNN.com
-- Redacted Memorandum Opinion, by USDC Judge Gladys Kessler
-- Tearful FBI Agent Apologizes To Sept. 11 Families and Victims, by Jeff Johnson
-- FBI Documents Re FOIPA Request for Cartoonist Al Capp
-- DOJ Admits FBI Forensic Examiners Gave False Testimony for Decades, by Andrew Emett
-- The Assassination of Malcolm X: Ex-Undercover Officer Admits Role in FBI & Police Conspiracy, by Amy Goodman
-- FBI Documents Suggest Feds Read Emails Without a Warrant, by Nathan Freed Wessler
-- FBI to gain expanded hacking powers as Senate effort to block fails, by Dustin Volz
-- The FBI is 'manufacturing terrorism cases' on a greater scale than ever before, by Caroline Simon
-- Kevin Shipp Interviews Paul Williams, Ph.D. Who Exposes Islamic Terrorist Training Camps Inside the U.S.
-- Dozens of Capitol Rioters Were on FBI Terrorism Watch List, by Amy Goodman
-- New FBI release on Clinton email probe refers to 'Shadow Government', by Everett Rosenfeld


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CNN, June 16, 2021, with scandal-plagued anchor Chris Cuomo and disgraced former FBI Deputy Director Andrew McCabe

The axis of liberal media outlets and their allied activist groups — CNN, NBC News, The Washington Post, Media Matters — are in an angry uproar over a recent report questioning the foreknowledge and involvement of the FBI in the January 6 Capitol riot. As soon as that new report was published on Monday, a consensus instantly emerged in these liberal media precincts that this is an unhinged, ignorant and insane conspiracy theory that deserves no consideration.

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


The implications of these facts are obvious. It seems extremely likely that the FBI had numerous ways to know of any organized plots regarding the January 6 riot (just as the U.S. intelligence community, by its own admission, had ample advanced clues of the 9/11 attack but, according to their excuse, tragically failed to “connect the dots”). There is no doubt that the FBI has infiltrated at least some if not all of these groups — which it has been warning for years pose a grave national security threat — with informants and/or undercover spies. It is known that Proud Boys leader Enrique Tarrio has served as an FBI informant in the past, and the disrupted 2020 plot by Three Percenters members to kidnap Gov. Gretchen Whitmer (D-MI) was shaped and driven by what The Wall Street Journal reported were the FBI’s “undercover agents and confidential informants.”

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Wall Street Journal, Oct. 18, 2020
In Michigan Plot to Kidnap Governor, Informants Were Key: As authorities grapple with the threat of homegrown extremists, deciphering talk and action is tough, by Zusha Elinson, Erin Ailworth and Rachael Levy, Wall Street Journal, Oct. 18, 2020


What would be shocking and strange is not if the FBI had embedded informants and other infiltrators in the groups planning the January 6 Capitol riot. What would be shocking and strange — bizarre and inexplicable — is if the FBI did not have those groups under tight control. And yet the suggestion that FBI informants may have played some role in the planning of the January 6 riot was instantly depicted as something akin to, say, 9/11 truth theories or questions about the CIA’s role in JFK’s assassination or, until a few weeks ago, the COVID lab-leak theory: as something that, from the perspective of Respectable Serious Circles, only a barely-sane, tin-foil-hat-wearing lunatic would even entertain.

This reaction is particularly confounding given how often the FBI did exactly this during the first War on Terror, and how commonplace discussions of this tactic were in mainstream liberal circles. Over the last decade, I reported on countless cases for The Guardian and The Intercept where the FBI targeted some young American Muslims they viewed as easily manipulated — due to financial distress, emotional problems, or both — and then deployed informants and undercover agents to dupe them into agreeing to join terrorist plots that had been created, designed and funded by the FBI itself, only to then congratulate themselves for breaking up the plot which they themselves initiated. As I asked in one headline about a particularly egregious entrapment case: “Why Does the FBI Have to Manufacture its Own Plots if Terrorism and ISIS Are Such Grave Threats?

In 2011, Mother Jones published an outstanding, lengthy investigation by reporter Trevor Aaronson, entitled “The Informations,” which asked: “The FBI has built a massive network of spies to prevent another domestic attack. But are they busting terrorist plots—or leading them?” Aaronson covered numerous similar cases for The Intercept where the FBI designed, directed and even funded the terror plots and other criminal rings they then boasted of disrupting. A widely praised TEDTalk by Aaronson, which, in the words of organizers, “reveals a disturbing FBI practice that breeds terrorist plots by exploiting Muslim-Americans with mental health problems,” featured this central claim: “There's an organization responsible for more terrorism plots in the United States than al-Qaeda, al-Shabaab and ISIS combined: The FBI.”

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The Guardian, Nov. 16, 2011
Fake terror plots, paid informants: the tactics of FBI 'entrapment' questioned: Critics say bureau is running a sting operation across America, targeting vulnerable people by luring them into fake terror plots, by Paul Harris, The Guardian, Nov. 16, 2011


So far from being some warped conspiracy theory, that the FBI purposely targets vulnerable people and infiltrates groups in order to create attacks and direct targets to engage in them is indisputably true, well established, and a commonly reported fact in mainstream liberal media. Exactly that has been happening for decades.

Yet the DNC-loyal sector of the corporate media reacted to the Revolver News article and Carlson’s segment which raised these questions as though they were positing something that no sentient being could possibly regard as viable. CNN — which spent years leading its viewers to believe that the Kremlin controlled the U.S. Government through sexual and financial blackmail — published what they labeled a “fact-check” that denounced this as a “haywire theory” that “is nothing more than a conspiratorial web of unproven claims, half-truths and inaccurate drivel about perceived bombshells in court filings.”


As it usually does, The Washington Post — which told Americans that Russians had invaded the U.S. electricity grid and that a huge army of Kremlin-loyal American writers was shaping our discourse — echoed the instant CNN/liberal consensus by mocking it as “Tucker Carlson’s wild, baseless theory,” claiming that “it’s the kind of suggestion journalists in other organizations would quite possibly be fired for if they sought to push it nearly as hard.” The standard liberal blob of HuffPost/ DailyBeast/ BusinessInsider all recited from the herd script. “A laughable conspiracy theory,” chortled The Huffington Post, who has done more to help the FBI find citizens allegedly at the Capitol riot than any local law enforcement agency.

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The Huffington Post, June 18, 2021

What accounts for this furious liberal #Resistance to questioning the FBI’s role in the January 6 riot and asking whether there are vital facts that are being concealed? There was one minor analytical flaw in both the Revolver News article and Carlson segment that they seized on by pretending that it was central to the question rather than what it was: a completely ancillary distraction. It is true that it is highly unlikely, probably close to impossible, that the FBI would refer to someone they were directing or collaborating with as an “unindicted co-conspirator” because, by definition, someone working at the behest of the FBI would not be a “conspirator” in a plot since they would lack the necessary intent to forward that plot (their intent, instead, is to tell the FBI what is being plotted). CNN hauled out some career federal prosecutor and current corporate lawyer, their “Senior Legal Analyst” Elie Honig, to spend five minutes pretending that this single-handedly destroys the case.

But rather than some devastating theory-destroying point, this is ultimately irrelevant to the evidence marshaled by Revolver News. While it is true that “unindicted co-conspirator” almost certainly does not refer to FBI informants or operatives, the numerous references to Person-1, Person-2, etc. very well could [indeed, in the case of the FBI-directed plot to kidnap Gov. Whitmer, CHS-1, CHS-2, etc. (confidential human source) is how the FBI informants driving that plot were referenced]. These are common tactics that the FBI uses to reference the acts of their own unindicted informants without revealing their identity. And while some of the unnamed-but-referenced people in the charging documents are known (one is the spouse one of those charged), several are not.

The questions raised by the Revolver News reporting, which none of these smug FBI defenders and guardians of the liberal consensus can answer, remain:

• How is it remotely credible that the FBI did not have informants in these three groups that they have been identifying as major threats for years, especially given the reporting that the leader of the Proud Boys — conveniently arrested the day before January 6 — was an FBI informant in the past, along with the confirmed reporting that the FBI had multiple informants in the Michigan Three Percenters case?
• Why are low-level protesters being charged with major crimes while the alleged organizers of this riot and the leaders of these groups have not been?
• Why are enormous amounts of video surveillance footage from January 6 still being concealed?
• What happened to the alleged planting of pipe bombs near the Capitol?
• Why did the FBI not take more aggressive action given the once-denied but now-confirmed fact that the social media platform Parler sent the FBI advanced warnings of specific plots to use violence at the Capitol?


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Ryan Goodman
@rgoodlaw
A big deal:

@RepMaloney: "Committee has obtained docs showing that ... Parler sent the FBI evidence of planned violence in DC on January 6. Parlor referred this content to FBI for investigation OVER 50 TIMES" including "specific threats of violence being planned at the Capitol."
June 15th 2021


If the FBI had advanced knowledge of what was being plotted yet did nothing to stop the attack, it raises numerous possibilities about why that is. It could be that they just had yet another “intelligence failure” of the kind that they claimed caused them to miss the 9/11 attack and therefore need massive new surveillance authorities, budget increases, and new Patriot-Act-type laws to fix it. It could be that they allowed the riot to happen because they did not take it seriously enough or because some of them supported the cause behind it, or because they realized that there would be benefits to the security state if it happened. Or it could be that they were using those operatives under their control to plot with, direct, and drive the attack -- as they have done so many times in the past — and allowed it to happen out of either negligence or intent.

Nobody is claiming to know the answers to those questions, including Revolver News, Carlson, or anyone else. Instead, they are doing the work of actual journalists — pointing out the gaping holes in the public record about what we do and do not know about an event that is being exploited to launch a new domestic War on Terror, prompt massive new police and security state spending, and empower and justify new domestic surveillance and censorship authorities. Anyone not asking these questions or, worse, trying to delegitmize them, is a propagandist and has no business calling themselves a journalist.

But why does this description apply to so many in the undifferentiated liberal corporate media blob, the employees who work for media corporations and barely pretend any longer to conceal their DNC-supporting posture? One answer is that, as a result of the Trump years, they now revere security state institutions like the FBI and CIA, and are thus reflexively angered by suggestion that these agencies may be less than truthful in their statements and less than honorable in their conduct:

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Pew Research, July 24, 2018

But the primary reason is that their newsrooms are filled with former FBI operatives, CIA agents, and other former employees of the security state. CNN has more FBI agents and federal prosecutors working for it than anyone outside of the J. Edgar Hoover FBI headquarters in Washington. When they go to analyze any matters involving the FBI, they rely on career FBI agents and officials to tell them what to think. And you’ll never guess what these FBI operatives tell them: trust the FBI; only malicious conspiracists wonder if the FBI is lying and has been engaged in treachery; those who malign the FBI are liars. Here is just one of CNN’s countless FBI operatives doing her job:

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Image
Asha Rangappa
@AshaRangappa_
Fmr FBI Special Agent, lawyer, faculty @JacksonYale, Tiger(ish) mom. @CNN analyst. Editor @just_security. Steam mop influencer. Views mine.

I don't understand the latest conspiracy theory re Jan. 6... they are suggesting that *FBI agents* stormed the Capitol to overthrow the government?? Like, the government tried to overthrow itself, and then framed random people??
4:19 PM Jun 17, 2021


In virtually every segment that they have done since the Revolver News article was published, CNN, in order to angrily mock questions about the FBI, brings on FBI officials like former FBI Deputy Director Andrew McCabe — who got caught lying to the FBI and barely escaped prosecution for it — to insist that the honorable agency would never do any such thing:

CHRIS CUOMO: Let's talk about what is true, and not true, in this scenario. Former FBI Director Andrew McCabe.

"Person one, person two, unindicted co-conspirator, those are you guys. Those are - those are Feds, undercover." What's the reality?

ANDREW MCCABE, CNN SENIOR LAW ENFORCEMENT ANALYST, FORMER DEPUTY DIRECTOR, FBI: The reality, Chris, is that we're going to - we're going to go into, very briefly, a little law lesson here, because I am convinced that your viewers are smarter than Tucker Carlson.


Just think about a purported news outlet saying this: Let's talk about what is true, and not true, in this scenario. Former FBI Director Andrew McCabe.

While MSNBC prefers ex-CIA officials like John Brennan, CNN is practically overrun with former FBI officials, agents and operatives. But NBC News is also the home to FBI caricatures like this:

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Frank Figliuzzi
THE BUREAU WITH FRANK FIGLIUZZI PODCAST COMING MAY 25TH
Frank Figliuzzi
@FrankFigliuzzi1
FBI Assistant Director (ret); NBC News National Security Contributor nbcnews.com @nbcnews @msnbc; author
The FBI WAY; Podcast: THE BUREAU WITH FRANK FIGLIUZZI


Look at these FBI cartoons these media corporations employ. Then they haul them out to tell everyone that only malignant conspiracists and insane losers would ponder the possibility that the FBI was engaged in deceit or other forms of manipulation regarding an event that has taken on central importance in their quest for more power and money. And their liberal viewers and the liberal journalists who watch these networks nod in agreement because they think they are hearing from the real, honest experts: the security state agents they have been trained to revere.

But all the mockery in the world does not make these questions disappear. Of course the FBI was infiltrating the groups they claim were behind these attacks. There may be good reasons why that did not enable the FBI to stop this riot or why they have not yet indicted these ringleaders. But those answers are not yet known. And gullible conspiracists are not the ones who want answers to these questions but, instead, are the ones doing everything possible to protect the FBI from having to provide them.
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Re: Trump lashes out at Gov. Doug Ducey following certificat

Postby admin » Sat Jun 19, 2021 3:08 am

Part 1 of 2

Unindicted Co-Conspirators in 1/6 Cases Raise Disturbing Questions of Federal Foreknowledge
by revolver news
June 14, 2021

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Of all the questions asked, words spoken, and ink spilled on the so-called “Capitol Siege” of January 6, 2021, none hold the key to the entire event quite like what Sen. Amy Klobuchar asked of Christopher Wray.

The Democrat from Minnesota asked the Trump-appointed FBI Director: Did the federal government infiltrate any of the so-called “militia” organizations claimed to be responsible for planning and executing the Capitol Siege?


Amy Klobuchar questions FBI Director about Capitol Insurrection, Proud Boys, by Forbes Breaking News, Mar 2, 2021

Christopher Wray is able to uncomfortably weasel his way out of answering the question directly, partially because Klobuchar does him the courtesy of not asking him the question directly. Klobuchar instead asks the FBI director if he wishes he had infiltrated the militia organizations allegedly involved in 1/6 — assuming from the outset that there was in fact no infiltration, thereby providing the FBI director an easy way to avoid addressing the question one way or another.

Revolver News is willing to address the matter directly in the following three questions:

• In the year leading up to 1/6 and during 1/6 itself, to what extent were the three primary militia groups (the Oath Keepers, the Proud Boys, and the Three Percenters) that the FBI, DOJ, Pentagon and network news have labeled most responsible for planning and executing a Capitol attack on 1/6 infiltrated by agencies of the federal government, or informants of said agencies?
• Exactly how many federal undercover agents or confidential informants were present at the Capitol or in the Capitol during the infamous “siege” and what roles did they play (merely passive informants or active instigators)?
• Finally, of all of the unindicted co-conspirators referenced in the charging documents of those indicted for crimes on 1/6, how many worked as a confidential informant or as an undercover operative for the federal government (FBI, Army Counterintelligence, etc.)?


[x]
WATCH: CHECK OUT DARREN BEATTIE'S LATEST INTERVIEWS

From now on, all discussion of 1/6 must give way to a laser-like focus on the questions above, with an unwavering persistence at obtaining the answers.

If the narrative about 1/6 does not conform to the questions above, the American people will never learn the most important truth about what 1/6 is, and what kind of country they’re really living in.

If it turns out the federal government did in fact have undercover agents or confidential informants embedded within the so-called militia groups indicted for conspiring to obstruct the Senate certification on 1/6, the implications would be nothing short of seismic. Especially if such agents or informants enjoyed extremely senior-level positions within such groups.

One of the key consensus points among the FBI-DOJ and the regime media is the idea that, while 1/6 is primarily the fault of Trump-supporting QAnon-infused “domestic terrorists,” it is secondarily the fault of so-called “intelligence failures.”

Klobuchar’s own question at the March 2, 2021 FBI hearing (above) reinforces this “intelligence failure” narrative, but she is not alone. A five-month “bipartisan” Senate investigation recently arrived at the very same “intelligence failure” narrative to explain the breach of the Capitol and associated events on 1/6:

A bipartisan Senate investigation of the deadly Jan. 6 insurrection found security and intelligence failures at every level of government that led to the breach of the Capitol by a pro-Trump mob as lawmakers in a joint session were certifying the 2020 election.

The 95-page report, a product of a roughly five-month, joint probe by the Senate Homeland Security and Rules Committees, found significant breakdowns ranging “from federal intelligence agencies failing to warn of a potential for violence to a lack of planning and preparation by (U.S. Capitol Police) and law enforcement leadership.” There was no overall operational or staffing plan for that fateful day, a total failure of leadership, according to the committees. [ABC News]


If it turns out that the federal government (FBI, Army Counterintelligence, or a similar agency) had undercover agents or confidential informants embedded in any of the groups involved in 1/6, the “federal intelligence agencies failing to warn of a potential for violence” looks less like an innocent mistake and more like something sinister.

Indeed, if the federal government knew of a potential for violence in or around the Capitol on 1/6 and failed to call for heightened security, the agencies responsible may in fact be legally liable for the damages incurred during that day.

It is unsettling to entertain the possibility that the federal government knew of a potential for violence on 1/6 and did nothing to stop it. It presents the question: why would agencies, or certain elements within, sit back and let something like this happen on purpose?

A still more disturbing possibility arises from a careful study of the unindicted co-conspirators listed throughout the various charging documents of individuals facing the most serious charges related to 1/6.

We at Revolver News have noticed a pattern from our now months-long investigation into 1/6 — and in particular from our meticulous study of the charging documents related to those indicted. In many cases the unindicted co-conspirators appear to be much more aggressive and egregious participants in the very so-called “conspiracy” serving as the basis for charging those indicted.

The question immediately arises as to why this is the case, and forces us to consider whether certain individuals are being protected from indictment because they were involved in 1/6 as undercover operatives or confidential informants for a federal agency.


Here it is useful to draw a distinction between two discrete categories of participants in the so-called Capitol Siege.

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

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

However, the possibility that the federal government had undercover operatives or informants involved in the events of 1/6, from its planning to its execution, compels us to turn our attention to the second category of participants.

We are especially interested in the unindicted co-conspirators who belonged to any of the big three “militia groups” — the Oath Keepers, the Proud Boys, and the Three Percenters. Indeed, it is these militia groups whose behavior, statements and planning leading up to and during 1/6 most closely align with the “violent insurrectionist” caricature we hear about in the media, and which the government claims to be going after in its aggressive prosecutions.

If it turns out that an extraordinary percentage of the members of these groups involved in planning and executing the Capitol Siege were federal informants or undercover operatives, the implications would be nothing short of staggering. This would be far worse than the already bad situation of the government knowing about the possibility of violence and doing nothing. Instead, this would imply that elements of the federal government were active instigators in the most egregious and spectacular aspects of 1/6, amounting to a monumental entrapment scheme used as a pretext to imprison otherwise harmless protestors at the Capitol — and in a much larger sense used to frame the entire MAGA movement as potential domestic terrorists.

This is what’s at stake in getting to the bottom of 1/6.

And so we proceed, unafraid, to investigate the question on which everything else pertaining to 1/6 hinges — did the government have informants or undercover agents in any or all of the “big three” militia groups leading up to or on 1/6? How many of the key unindicted co-conspirators in DOJ prosecutions are unindicted because they are undercover operatives or confidential informants?

In short, what did the federal government know in advance about 1/6, when did they know it — and how far did any undercover operations go?


Something’s Rotten in Michigan: The Forgotten Case of the Whitmer Kidnapping Plot

Of course, we could point to countless examples in America’s history of undercover agents and informants being actively involved in various “domestic terror plots.” But for the purposes of the argument we’re making here we need only go back a few months prior to 1/6 — to the so-called “Whitmer Kidnapping Plot.”

Indeed, what if we told you that scarcely three months before the 1/6 Capitol Siege, the FBI arrested 14 people for planning to kidnap Michigan Governor Gretchen Whitmer and overthrow the State Government — and that the alleged conspiracy to overthrow the State government involved storming of the State Capitol?

And what if we told you that of the 14 individuals who allegedly plotted the “kidnapping” and overthrow of the state government, at least five were undercover agents and federal informants? And as if that’s not enough, many of the individuals allegedly involved in this plot appear to belong to the “Three Percenters,” one of the very same militia groups now blamed for storming January 6.


And, as the cherry on top, what if we told you that the director of the Detroit FBI Field Office, who oversaw the infiltration operation of the Michigan Plot, was subsequently granted a highly coincidental promotion to the D.C. office, where he is now the lead FBI agent for all 1/6 cases?

As crazy as it sounds, all of this is true. A full account of the Michigan Plot and its parallels to the Capitol Siege runs outside the scope and purposes of this article. Nonetheless, it will be useful to briefly flesh out some of the most salient details alluded to above.

The left-wing blog Jacobin, of all places, provides a good description of the allegation and charges:

Since last week, the headlines have been lit up by a shocking story out of Michigan: the FBI had foiled a plot hatched by anti-lockdown protesters and right-wing militia members to kidnap and try for “treason” Michigan governor Gretchen Whitmer, who one of the ringleaders called a “tyrant bitch.”

According to a federal affidavit and court testimony, the plot involved surveilling Whitmer’s vacation home in Western Michigan and the surrounding area, procuring explosives and tactical gear to fight off police, taking part in armed training exercises, and even possibly blowing up a nearby bridge. The alleged plotters discussed using a fake pizza delivery to kidnap Whitmer, leaving Whitmer on a boat in the middle of Lake Michigan, and even kidnapping Virginia governor Ralph Northam, one of the “tyrants” who, they believed, were abusing their power to order statewide lockdowns in response to the coronavirus pandemic. [Jacobin]


Drawing upon entrapment cases used in the War on Terror, the Jacobin piece expresses concerns that the whole Michigan Plot itself may have been the result of entrapment of vulnerable, cognitively deficient and mentally unstable individuals by FBI informants. The following passage discusses the pathetic state of Adam Fox, the man designated by the government as the “mastermind” of the kidnapping plot:

According to the FBI’s affidavit, the bureau made heavy use of informants and undercover agents in the case. At least four took part — specifically, two informants and two undercover agents, on whose evidence gathering the criminal complaint was based on — though it’s implied that some unspecific number of additional personnel were involved.

And, as with earlier, Muslim-targeting cases, the FBI appears to have been integral to the plotters’ ability to carry out the scheme.
The affidavit notes that an undercover agent told the ringleader it would cost $4,000 to procure explosives. Four of the accused planned to meet with another undercover agent posing as an explosives expert to pay for them and, they were told, to get some excess tactical gear the agent had the day they were arrested. In court, Richard Trask, the agent who authored the affidavit, said he didn’t know how much money the defendants had on them when they were put in handcuffs, aside from the $275 held by Adam Fox, pegged by Trask as the ringleader.

Even the profile of Fox is not unlike those of earlier targets like Shareef and Hester. Fox was reportedly struggling with money and had been on the brink of homelessness after his girlfriend kicked him out of her house, before being taken in by his friend and employer, who let him stay temporarily in the basement of his vacuum store. It was there in that cramped storage space, cluttered with boxes and spare vacuum parts, where Fox was living with his two dogs and meager possessions, that he at one point held a meeting to allegedly plan out the kidnapping.
[Jacobin]


The possibility of an FBI entrapment-type operation is especially disturbing in light of the striking parallels between the Michigan Plot and the so-called Capitol Siege of 1/6.

The Michigan Plot did not start out as a kidnapping. According to the DOJ’s own indictment, the plot started as a plan to “storm the Capitol building” in Lansing, Michigan. And the “conspirators” would do so by amping up “at least 200 men” from an upcoming unrelated rally planned at the Michigan Capitol building (a rally that was focused on the Second Amendment, not insurrection) by agitating enough rallygoers to run inside and occupy the building.

Paragraph 10 of the FBI affidavit describes the plot to “storm the state capitol”:

10. Fox, in coordination with CROFT, met with members of the militia group at various times in June 2020. During one such meeting on June 18, 2020, which was audio recorded by CHS-2, FOX, militia group leadership, including Michigan resident Ty GARBIN, and CHS-2 met at a Second Amendment rally at the State capitol in Lansing, Michigan. In an effort to recruit more members for the operation, FOX told GARBIN and CHS-2 he planned to attack the Capitol and asked them to combine forces.


“CHS-2” refers to a “Confidential Human Source,” which means government informant. As mentioned above, the groups involved with this alleged plot were absolutely replete with undercover informants and operatives. Consider the following excerpt, from the same FBI affidavit:

4. In the course of its investigation, the FBI relied on information provided by Confidential Human Sources (CHS) and Undercover Employees (UCE) over several months. Not all CHSs and UCEs were present at all times, however, at least one CHS or UCE was usually present during the group meetings. Those CHSs and UCEs consensually recorded the meetings and conversations with the subjects. Some meetings or conversations were recorded by more than one CHS or UCE. Certain CHSs also had access to group or individual texts, online chats, and phone calls. Each CHS was vetted for reliability by the FBI agent handling the source. None of the CHSs were aware of the other CHSs involved with the groups in order to preserve the independence of their reporting. Although multiple CHSs were used over the course of the investigation, this complaint only relies on audio recordings and information provided by CHS-1, CHS-2, UCE-1 and UCE-2. [FBI Affidavit]


In the above excerpt, the FBI acknowledges the use of both confidential informants and undercover employees over the course of several months leading up to the so-called “thwarted plot.” Specifically, the complaint acknowledges two confidential informants and two undercover employees. Subsequent to the DOJ’s filing charges, however, another deep undercover informant unexpectedly outed himself (more on that later), bringing the tally of known government operatives up to five.

Here’s a clip of one of the informants talking about storming the Michigan State Capitol:



No wonder this Michigan plot didn’t take the federal authorities by surprise!

FBI infiltrators comprised, at the very least, 26 percent of the plotters. That is, at least five FBI operatives have been disclosed, against just 14 suspects indicted.

A look at the annotated indictment reveals that at every level of the plot, FBI operatives played the most important leadership roles:

-The plot’s “explosives expert,” who the plotters were accused of planning to buy bombs from, turned out to be an FBI agent.

-The head of transportation for the militia outfit turned out to be an undercover FBI agent.

-The head of security for the militia outfit turned out to be an undercover FBI informant.

-At least two undercover FBI informants were active participants in the initial June 6, 2020 meeting in which the plot to storm Capitol buildings was allegedly hatched — meaning at least three FBI informants infiltrated before the conspiracy even started.


In one of the plot’s climactic scenes, in the main van driving up to look at Governor Whitmer’s vacation home, three out of the five people in the van — 60 percent of the plot’s senior leaders — were federal agents and informants:

31. FOX, CROFT, CHS-2, a UCE, and an individual from Wisconsin traveled in the first vehicle. While in the vehicle, CROFT and FOX discussed detonating explosive devices to divert police from the area of the vacation home. They stopped at the M-31 highway bridge on the way, where FOX and the UCE inspected the underside of the bridge for places to seat an explosive charge. FOX took a picture of the bridge’s support structure, which he later shared with CHS-2 in their encrypted chat. From there, they drove to a public boat launch across the lake from the vacation home to watch for the other cars in their group. [FBI]


You may be wondering how you get “three out of five” when the DOJ’s complaint only acknowledges two undercover FBI operatives: UCE (meaning “Undercover Employee,” or full-time agent) and CSH-2.

That is because the FBI went to great lengths to hide their affiliation with the fifth person in the van, describing him only as “an individual from Wisconsin” (again, more on this later).

Let’s take stock of what we have so far. We have a group of plotters that is heavily infiltrated by FBI informants and undercover agents, who were allegedly planning to kidnap the Michigan governor and storm the state capitol.

What we also know is that many of the main figures indicted in this plot seem to be associated with a militia group called the “Three Percenters” — one of the very same “big three” militia groups primarily charged with orchestrating 1/6.

Just to take a few examples:

The FBI alleged Adam Fox and Barry Croft were the supposed masterminds of the plot, with Adam Fox described as the Michigan state leader of the Three Percenters and Barry Croft as a national leader of the Three Percenters.

The FBI secured a search warrant to tap national Three Percenters leader Barry Croft’s Facebook account in April 2020, two months before the Michigan Plot was even allegedly hatched. For almost the entirety of 2020, every time Barry Croft’s Facebook account got banned, the FBI would tap each new alt account he created under a new warrant.

Michigan Plot indicted co-conspirators Brian Higgins and Michael Null were identified as Three Percenters as well.

As was Michael Jung, who was not indicted in relation to the kidnapping plot. Jung allegedly was a member of both the Oath Keepers and second in command of the Wisconsin Branch of the Three Percenters. Jung’s 2-acre homestead in Wisconsin is where the DOJ alleges the Michigan “plotters” held firearms training and field exercises under the watchful eye of undercover informants.


And so we see the strange parallels between the so-called Michigan Plot and the so-called 1/6 Capitol Siege. In Michigan you had an alleged plot involving the storming of a state capitol, allegedly involving members of one of the very same key militia groups associated with the 1/6 plot. And we’re supposed to believe that despite massive and now publicly confirmed FBI and government infiltration of the Michigan Plot, there was no similar infiltration for 1/6?

Such a position appears still less plausible when we consider a final, suspicious connection between the Michigan Plot and 1/6.

The head of the FBI field office in Detroit, Steven D’Antuono, who oversaw the infiltration (and incitement?) operation into the Michigan plot was quickly and quietly promoted to lead the coveted Washington, DC field office:

Steven M. D’Antuono, who was named chief of the Detroit FBI office a year ago, has been promoted to head the Washington Field Office, a coveted post in the bureau.

FBI Director Christopher Wray made the announcement Tuesday, just several days after D’Antuono’s agents and state police busted up a plot to abduct Gov. Gretechen Whitmer. His official new title is assistant director in charge. [Deadline Detroit]


If you’ve been following along so far, you can probably take a guess as to what Steven D’Antuono is up to in his new, coveted perch…

That’s right, he’s one of the key figures overseeing the investigation into the 1/6 Capitol Siege. What a coincidence!




Let’s recap what we’ve established. Just months prior to the U.S. Capitol Siege on 1/6, the FBI thwarted a similar plot involving a siege at the Michigan State Capitol, whose plotters belong to one of the three main militia groups associated with 1/6. The FBI was able to thwart this on the basis of an astonishing infiltration rate of said groups involving undercover operatives and informants who had been working in such capacity, just in one tiny Michigan network, for more than seven months. They were so well-infiltrated that they already had three informants embedded in this random Three Percenter network before any plot was even hatched. Furthermore, just days after the plot was foiled, FBI director Christopher Wray quietly promoted the FBI Special Agent in Charge of the Michigan Plot operation to a coveted D.C. field post, where he now oversees the investigation into 1/6.

The Special Agent in Charge, by the way, is who establishes, extends, renews and supervises all FBI undercover operations.

The above parallels between the Michigan Plot and 1/6 do not necessarily mean that the the FBI had undercover informants and operatives who were involved in 1/6. But it sure as heck reinforces our intuition that it’s a distinct possibility. And it forces us to ask the question once again — if the government foiled the Michigan Plot, why didn’t they step in to stop the so-called siege on 1/6?

It is now imperative for anyone who cares about the truth to demand that Christopher Wray answer the question — to what extent did the FBI or any other government agency infiltrate the key militia groups associated with the U.S. Capitol Siege?

And more pressing still, a question to which we now turn our attention: how many of the unindicted co-conspirators in 1/6 prosecutions are unindicted on account of a prior arrangement with the federal government as an undercover operative or informant?

Shock and Awe: The DOJ’s Standard of Prosecution

Revolver News’s investigative team noticed from the very beginning a highly unusual and hard-to-explain feature of the conspiracy indictments filed against the Oath Keepers and the Proud Boys.

Revolver took special notice of not only the unusual volume of unindicted co-conspirators, but a still more unusual feature that the statements and actions of the unindicted co-conspirators in many cases seemed far more egregious and aggressive than those of the persons actually indicted.

It is essential here to make an important note of clarification. The purpose of this analysis here is not to aid in the prosecution of any of these unindicted co-conspirators. Rather, our aim is to point out that, given the standards of indictment applied to those actually indicted, it is very strange and indeed suspicious that certain unindicted co-conspirators have managed to avoid indictment. This does not necessarily mean that we approve of the standard of indictment itself. Quite the contrary, the aggressive standard of indictment and prosecution, through an unimaginably broad application of “conspiracy” charges, is immoral, unjust, and absurd.

We hope that one consequence of this seismic exposé will be a serious and prompt reform of the justice system to prevent such aggressive and politically motivated prosecutions on the part of the government.

Broadly speaking, there are three primary reasons to see an unindicted co-conspirator in a criminal complaint: grants of immunity, pragmatic considerations, and evidentiary concerns.

Grants of immunity are traditionally only issued as the result of a plea deal reached between a defendant and prosecutors. Specifically, in exchange for agreeing to testify against “Big Fish” in the conspiracy, a “Little Fish” may remain an unindicted co-conspirator and never be charged.

But there are two reasons this possibility is far less likely in the Oath Keepers and Proud Boys indictments.

First, the timing doesn’t add up. The first indictment in the Oath Keepers case, already containing multiple key unindicted co-conspirators, was filed on January 27.

The First Superseding Indictment was filed on February 19. The Second Superseding Indictment was filed on March 12. The Third Superseding Indictment was filed on March 31. But the first plea deal in the Oath Keepers case was not struck until April 16. This means that none of the unindicted co-conspirators in the first three months of filings could have gotten a grant of immunity.

And even then, only one guy so far has copped a plea. Informal plea negotiations among the broader group didn’t even start until last week.

There are what appears to be upwards of 20 unindicted co-conspirators in the Oath Keepers indictments, all playing various roles in the conspiracy, who have not been charged for virtually the exact same activities — and in some cases much, much more severe activities — as those named alongside them in indictments.

The timeline and fact pattern suggests therefore that the only unindicted co-conspirator who could be unindicted as the result of a grant of immunity would have to be the single person from the Fourth Superseding Indictment onward, which was filed on May 26.

The other reasons to typically see unindicted co-conspirators — pragmatic concerns and evidentiary concerns — seem far less likely in this case as well.

The DOJ kicked off what has become one the largest and most aggressive prosecutorial dragnets in American history by announcing a campaign of “Shock and Awe.” No one gets off the hook. No one gets leniency. And everyone playing a bit part gets maximum time because this is about sending a message.

Listen to then-Acting U.S. Attorney for the District of Columbia Michael Sherwin describing this remarkably merciless “Shock and Awe” prosecutorial campaign:



Here’s a partial transcript:

I wanted to ensure, and our office wanted to ensure, that there was shock and awe. That we could charge as many people as possible before [January] 20th. And it worked because we saw through media posts that people were afraid to come back to D.C., because they were like, ‘If we go there, we’re going to get charged.’


We saw “Shock and Awe” in action in the DOJ’s terrifyingly twisted “conspiracy” case against George Tanios, discussed at length in a previous Revolver report.

READ MORE: Assault Charges Spell Problems for DOJ, FBI in Officer Sicknick Case

RELATED: One Month Later, CNN Finally Admits What Revolver Reported All Along

George Tanios and his companion Julian Khater have been charged with nine criminal counts for actions taken on 1/6 just outside the steps of the U.S. Capitol building. The most serious charge was assault on an officer with a dangerous weapon, arising from Khater’s alleged use of Tanios’s chemical spray to tag Officer Sicknick and two other officers in the face.

MORE: MAGA Blood Libel: Why Are They Hiding the Medical Report?

There, Tanios: (1) did not go in the Capitol; (2) did not use any bear spray himself; (3) had bear spray in his backpack and when his buddy Khater reached in to take it out, Tanios actively tried to stop him; and (4) in the end, it turns out, as prosecutors now acknowledge, his buddy never even used the bear spray.

And still, the DOJ has slapped this 39-year-old sandwich shop owner, George Tanios, with 60 years worth of stacking “conspiracy” charges because he said, “Hold on, hold on, not yet, not yet.”

As we proceed to consider the following unindicted co-conspirators, keep in mind this George Tanios “Shock and Awe” standard of prosecution.
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Re: Trump lashes out at Gov. Doug Ducey following certificat

Postby admin » Sat Jun 19, 2021 3:08 am

Part 2 of 2

The Unindicted Co-Conspirators

The first suspiciously unindicted co-conspirators we will consider are the “Person Two” and “Person Three” who are unindicted co-conspirators in the indictment against Oath Keeper Thomas Caldwell (and the 15 named co-defendants).

For those unfamiliar, Thomas Caldwell is a 65-year-old from Virginia and an alleged member of the Oath Keepers, which the DOJ refers to as a “paramilitary” or “militia” group. The Caldwell case served as one of the first major indictments following the January 6 incident.

The DOJ press release provides more detail:

Jessica Marie Watkins, 38, and Donovan Ray Crowl, 50, both of Champaign County, Ohio; and Thomas Caldwell, 65, of Clarke County, Virginia, were indicted today in federal court in the District of Columbia on charges of conspiracy, obstructing an official proceeding, destruction of government property, and unlawful entry on restricted building or grounds, in violation of 18 U.S.C. §§ 371, 1512, 1361, and 1752. Watkins and Crowl were arrested on Jan. 18; Caldwell was arrested on Jan. 19. All three individuals originally were charged by criminal complaint. The maximum penalty for Obstructing an Official Proceeding is a sentence of up to 20 years in prison.

According to the charging documents, Watkins, Crowl, and Caldwell communicated with each another in advance of the Jan. 6, 2021, incursion on the U.S. Capitol and coordinated their attack. Watkins, Crowl, and Caldwell are all affiliated with the Oath Keepers, while Watkins and Crowl are also members of the Ohio State Regular Militia. Watkins claimed to be a commanding officer within the Ohio State Regular Militia in a social media post. [Department of Justice]


A careful read of the indictment against Caldwell reveals that a certain “Person Two” was a key co-conspirator alongside Caldwell in nearly every dimension relevant to the charges in question.

Person Two planned logistics with Caldwell days in advance of 1/6, stayed in the same hotel room for days together, and when Caldwell allegedly “stormed the barricades” into restricted areas outside the U.S. Capitol, Person Two is alleged to have “stormed the barricades” right beside him.

But five months since the acts both co-conspirators allegedly committed, only Caldwell has been charged. Person Two, for some mysterious reason, remains an unindicted co-conspirator.


For example, the DOJ alleges:

48. Meanwhile, CALDWELL, who was positioned on the west side of the Capitol, joined with PERSON TWO and others known and unknown in storming past barricades and climbing stairs up to a balcony on the West side of the Capitol building. [DOJ – Fourth Superseding Indictment]


Person Two is with Caldwell side by side, doing the same actions, going into the same restricted areas of the Capitol, coming out, every step of the way from the beginning of the day until they return to a hotel they share together. But for some strange reason, Person Two, who could not have gotten a plea deal, is not indicted, named, or pursued at all. From the government’s brief against reconsideration of detention:

Did you see us storm the Capitol today? [Person Two] is exhausted and will give you the long version later… I will send you now a sequence of pics as we get bearer, climb through the construction and scaffolding meant to stop us, up the stairway where they were shooting teargas and the grins after we were in as well as the view looking out from the balcony.



Hell yeah! [Person Two] and I rolled with the Oathkeepers and some other militia.



On my side another round of indiscriminate tear gas shots. I gotta say, I was carrying my American flag and I got up on that fountain and I said let’s go. Patriots forward! And people were screaming it and we surged forward. I will neve forget the feeling. And [Person Two] I said . . . do you want to go and [Person Two] said something like let’s go!



We got to the level where they do the inauguration and I gotta say it was exhilarating to stand there with thousands, some even hanging from the scaffolding, waving my American flag and [PERSON TWO] waving the flag singing America the beautiful and the Star spangled banner with hundred of thousands of people I didn’t know.



On my side the cops showed up on a level above us with riot guns and about this time I had left [PERSON TWO] and [name omitted] one of our other pals by the railing about 20 yards back.


And more, from the fourth superseding indictment:

52. On December 30, 2020, WATKINS and CALDWELL exchanged the following text messages:

WATKINS: Looks like we are greenlight to come to DC on the 6th. The Rally Point still at your place?

CALDWELL: Not that I am aware… Here’s the rub: [PERSON TWO] and I will be in a hotel within striking distance of the city starting on the 4th so we won’t even BE here.


Even more suspicious than Person 2 described above is Person 3, who is yet another unindicted co-conspirator in the Caldwell indictment.

Note that in the Michigan Plot described in the previous section, both the main van driver and explosives supplier were undercover FBI operatives.

Here, the Oath Keepers’ main bus driver and supposed explosives supplier remains an unindicted co-conspirator. That person is simply listed as “Person 3” in the complaints.


Consider the following from paragraph 64 of the Caldwell indictment:

On January 1, 2021, CALDWELL wrote to CROWL, “Check with Cap. I recommended the following hotel to her which STILL has rooms (unbelieveble).” CALDWELL then sent a link to the Comfort Inn Ballston, the same hotel that he recommended to others on January 1. CALDWELL continued, “[PERSON TWO] and I are setting up shop there. [PERSON THREE] has a room and is bringing someone. He will be the quick reaction force. Its going to be cold. We need a place to spend the night before minimum. [PERSON ONE] never contacted me so [PERSON TWO] and I are going our way. I will probably do pre-strike on the 5th though there are things going on that day. Maybe can do some night hunting. Oathkeeper friends from North Carolina are taking commercial buses up early in the morning on the 6th and back same night. [PERSON THREE] will have the goodies in case things go bad and we need to get heavy.” [DOJ – Fourth Superseding Indictment]


In arguing defendant Caldwell should be denied bail, the DOJ cites Caldwell’s “leadership role in planning the events of January 6” as including “finding lodging” for Person Three. They even explicitly refer to Person Three as “a third co-conspirator.” Why is this “third co-conspirator” still unindicted?

Perhaps most significantly, the government has proffered, and the indictment alleges, that Defendant Caldwell played a leadership role in planning the events of January 6, 2021: by (1) finding lodging just outside Washington, D.C. for himself, co-defendant Watkins, co-defendant Crowd, and a third co-conspirator, Person Three, whom Caldwell said would be serving as part of the “quick reaction force” to support the operations on January 6 (ECF No. 18 at 7-9); (2) distributing maps to the quick reaction force to help it find the quickest route to the Capitol, should its services be required (id. At 9); and (3) by discussing whether it would be possible to recruit people with boats to join the plan, so that they could participate in the quick reaction force and ferry “the heavy weapons” across the Potomac River, should that become necessary during the events of January 6 (id. At 9). [DOJ – Caldwell Bond Motion]


In the Michigan Plot, an undercover FBI operative was the recipient of hand-drawn maps from the “plotters” doing reconnaissance missions. Here in 1/6, it is once again the mysteriously unindicted co-conspirator “Person 3” who receives hand-drawn maps:

75. On January 4, 2021, CALDWELL emailed PERSON THREE several maps along with the message, “These maps walk you from the hotel into D.C. and east toward the target area on multiple roads running west to east including M street and P street, two of my favorites…” [DOJ – Fourth Superseding Indictment]


Further, in the Michigan Plot, defense counsel alleges it was an undercover FBI operative who actually organized and paid for the hotel rooms during the key planning meeting on June 6, 2020.

Image
Robert Snell @robertsnellnews Jan 13, 2021
Replying to @robertsnellnews
The group talked about the benefit of kidnapping Whitmer before the Nov. 2020 presidential election, the government alleged.
Whitmer, at the time a rumored candidate for a cabinet appointment in Joe Biden's administration, would have a much larger security detail after Nov.
Robert Snell
@robertsnellnews
Croft's lawyer Joshua Blanchard believes the government set up the meeting of militia members last summer in Ohio that led to the Gov. Whitmer kidnap plot, and that the feds paid for attendees' hotel rooms.
"The government is the driving force," Blanchard says

2:50 PM Jan 13, 2021


Here, our mysteriously unindicted “Person Three” reserved and paid for various Oath Keeper hotel rooms:

68. KELLY MEGGS paid for two rooms, each for two people, at the Comfort Inn Ballston from January 5-6, 2021. The rooms were reserved under the name of Person Three.

69. Person Three paid for one room at the Comfort Inn Ballston from January 5-6, 2021.
[DOJ – Fourth Superseding Indictment]


From the indictment, Person 3 was tasked with stashing the heavy weapons at the “QRF hotel”, and standing by as QRF operator in case he was summoned to take the weapons directly to protesters at the scene. [Indictment, paragraphs 83, 84 and 90 and Bond Hearing, pp. 13-14]

This same pattern applies to the booking of most Oath Keeper hotel rooms:

82. On January 4, 2021, PERSON TEN checked into the Hilton Garden Inn in Vienna, Virginia. The room was reserved and paid for using a credit card in PERSON ONE’s name.

95. MINUTA, using his personal email address and his personal home address, reserved three rooms at the Mayflower Hotel in Washington, D.C., under the names of MINUTA, JAMES, and PERSON TWENTY. A debit card associated with PERSON FIFTEEN was used to pay for the room reserved under MINUTA’s name.
[DOJ Indictment]


Indeed, the curious lack of indictments filed against the entire gamut of Persons referenced as playing leadership roles within the Oath Keepers on 1/6 raises red flags. This includes: Person 2, Person 3, Person 10, Person 14, Person 15, Person 16, Person 19 and Person 20, along with many co-conspirators listed only as “an individual.”

For example, while transgender bar owner and Ohio Oath Keeper Jessica Watkins is inside the mezzanine of the U.S. Capitol, she is being directed, encouraged and egged on by “an individual” whose identity the DOJ clearly knows, since the DOJ stipulates the “individual” had “participated in at least one prior Oath Keeper operation:”

141. An individual who had participated in at least one prior Oath Keeper operations with WATKINS responded, “Get it Jess. Do your fucking thing. This is what we fucking [unintelligible] up for. Everything we fucking trained for.” [DOJ Indictment]


Among such individuals, consider the alleged administrator of the “Stop the Steal J6” Zello channel.

The Zello channel in question was populated by patriot/militia personalities who were variously monitoring and participating in 1/6 activities in real-time. For those unfamiliar, Zello is an app that allows for walkie-talkie functionality on a cell phone. Because phones signals were “jammed” by law enforcement in the Capitol area, Zello’s walkie-talkie function was useful (and pre-planned) to stay in communication.


The DOJ alleges:

114. At 2:03pm, the administrator of the “Stop the Steal J6” Zello channel directed the group, “You are executing citizen’s arrest. Arrest this assembly, we have probable cause for acts of treason, election fraud.” [DOJ Indictment]


The DOJ point-blank says this Zello channel administrator “directed the group” as it was carrying out the alleged Capitol attack. If the group is carrying out a conspiracy (and that’s what the defendants are charged with), this Zello channel administrator is directing the conspiracy in real-time. Further, applying the George Tanios “shock and awe” standard, it would certainly appear that direct instructions and active encouragement to co-conspirators in real-time to perform “citizens arrests” on the assembly (presumably Congress) is far worse than George Tanios merely saying “Hold on, hold on, not yet,” which was the sole hook needed for the DOJ to jail him without bail facing 60 years of charges.

An important reminder for the reader: the point of this exercise is not to encourage the prosecution of this or any other unindicted co-conspirator. The purpose is to suggest the oddity that such co-conspirators have not been indicted, given the absurdly severe “Shock and Awe” standard applied to those who have been. To the extent that this double-standard suggests that the unindicted co-conspirator remains such because he or she has a relationship with the federal government, this is of profound public interest.

We do not mean however to legitimize or condone the “Shock and Awe” standard applied to those indicted, or the wide scope and abusive application of “conspiracy” statutes to target political dissidents.

Under the same (absurd and unjust) standard of prosecution applied to this and every other 1/6 case, this statement, made in real-time over private walkie-talkie to the Oath Keepers inside the Capitol is immediately sufficient to charge this “individual” with conspiracy as well. Is this person being protected? If so, why?

Turning to the Proud Boys side, it appears that the individual who set up the Proud Boys’ communications infrastructure is still being protected by the DOJ. The DOJ refers to this person only as “UCC-1” (UCC meaning an explicitly spelled out “unindicted co-conspirator”):

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


Note that the “baofeng channel” here refers to encrypted two-way Chinese Baefeng radios.

Recall in the very beginning of this report, the Senate hearing exchange (in which Sen. Amy Klobachar asks FBI Director Wray if he wishes the FBI infiltrated the Proud Boys) begins with her exasperation over the Proud Boys having “Chinese radio”:

“And they show up, we now know in this complaint, with encrypted two-way Chinese radios…”


What a dark irony if it turns out that the very radios in question here were supplied to the Proud Boys group by an informant or undercover agent!

UCC-1, as well as two additional unindicted co-conspirators referred to only as “Person-One” and “Person-Two” in the Proud Boys indictment, were all in Proud Boys “upper tier leadership,” and appear to have been the most prolific planners and incendiary advocates of “insurrection” in the run-up to and on the day of 1/6.

For example, the DOJ cites statements made almost exclusively by unindicted co-conspirators as statements that “revealed a plan to storm the Capitol and to let the crowd loose.” Below is a direct quote from that DOJ motion. Note that only a single statement in this entire exchange, cited as the DOJ’s proof of an ongoing conspiracy, is made by a conspirator the DOJ actually indicted (Charles Donahoe). Even then, the indicted conspirator’s statements are orders of magnitude less specific, conspiratorial and incendiary than those made by unindicted co-conspirators UCC-1, Person-1 and Person-2:[/size][/b]

Statements made contemporaneous to the event, however, revealed a plan to storm the Capitol and to let the crowd loose, e.g.:

UCC-1: I want to see thousands of normies burn that city to ash today
Person-2: Would be epic
UCC-1: The state is the enemy of the people
Person-2: We are the people
UCC-1: Fuck yea
Person-1: God let it happen . . . I will settle with seeing them smash some pigs to dust
Person-2: Fuck these commie traitors
Person-1: It’s going to happen. These normiecons have no adrenaline control . . . They are like a pack of wild dogs
DONOHOE: I’m leaving with a crew of about 15 at 0830 to hoof it to the monument no colors
Person-2: Fuck it let them loose
Person-1: I agree . . .


[May 13 DOJ filing, p. 7]


For this exchange, made on 1/6, in the exclusive, encrypted senior leaders-only chat of the Proud Boys, the DOJ has sufficient grounds to indict UCC-1, Person-1 and Person-2 as co-conspirators.

But the roles of UCC-1, Person-1 and Person-2 look even worse when you understand the structure and hierarchy of the Proud Boys chain of command on 1/6.


First, there were only a very small handful of people in the “upper tier leadership” private Telegram chat of the Proud Boys. When the channel was set up on December, 29, 2020, it was just six people, including Proud Boys national chairman Enrique Tarrio, longtime Proud Boys “thought leader” Joseph Biggs, Proud Boys Auburn chapter head Ethan Nordean, and Proud Boys Philadelphia chapter head Zachary Rehl. That’s four named individuals and two-unnamed.

On December 29, 2020, the Proud Boys Chairman announced the leadership and structure of the Ministry of Self-Defense. The leadership and structure included an “upper tier leadership” of six people, which included Proud Boys Chairman, Nordean, Biggs, and Rehl. Later that evening, Donohoe explained the structure with reference to the upcoming trip to Washington, D.C. Among other things, Donohoe explained that the MOSD was a “special chapter” within the organization. The “special chapter” was not to have any interaction with other Proud Boys attending the event. Other Proud Boys attending the event were to coordinate with their own chapters and “do whatever you guys want.” [May 13 DOJ filing, pp. 3-4]


After 1/6, it came to light that Proud Boys national chairman Enrique Tarrio had been a “prolific” FBI informant for years, and Proud Boys “thought leader” Joseph Biggs had been an FBI informant for several months.

The day before 1/6, the Proud Boys national chairman Enrique Tarrio, a known FBI informant, was arrested on weapons charges and ordered by a Judge to stay away from D.C.

Enrique Tarrio, the leader of the right-wing group the Proud Boys, has been ordered to stay away from Washington, D.C., after he was arrested on vandalism and weapons charges. The ruling comes one day before pro-Trump demonstrations are planned in Washington as Congress convenes to count the Electoral College votes ahead of President-elect Joe Biden’s inauguration on January 20.

Tarrio was released from custody on Tuesday, but Judge Renee Raymond ordered him to stay away from Washington. Raymond said the government’s request for Tarrio to stay away was reasonable given his prior statements about burning anything associated with Black Lives Matter, Raymond also ordered that Tarrio not possess a firearm or ammunition while in Washington.

Tarrio was arrested Monday after he arrived in Washington on a charge stemming from the destruction of a Black Lives Matter banner at a historically Black church. He was found to be in possession of several high-capacity firearms, stemming in felony charges. [CBS]


A full discussion of Tarrio is outside the scope of this piece. For now, we will simply note how remarkably convenient it is that the head of the Proud Boys, a known FBI informant, just happened to get arrested and banned from D.C. the day before the January 6 protest, in which Proud Boys were involved.

What better excuse for the leader not to be present on that fateful day?


Upon Tarrio’s arrest on January 4, the “upper tier leadership” of the MOSD Telegram channel was “nuked” and a channel, “New MOSD” took its place. We now know this top leadership Telegram group included unindicted co-conspirators UCC-1, Person-1 and Person-2 (as well as Proud Boys North Carolina chapter leader Charles Donahoe).

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


The DOJ cites Person-1 as saying the following:

[quote]Person-1: God let it happen . . . I will settle with seeing them smash some pigs to dust
Person-1: It’s going to happen. These normiecons have no adrenaline control . . . They are like a pack of wild dogs
Person-2: Fuck it let them loose
Person-1: I agree . . .


[Bond Motion][/quote]

Furthermore, DOJ cites Person-1 as belonging to Proud Boys’ “upper tier leadership”:

A video call was held with prospective members of the MOSD on December 30, 2020. The self-proclaimed leadership of the MOSD introduced the chapter and explained the expectations, including the strict chain of command. As one member (“Person-1”) of the upper tier leadership explained…

[Bond Motion]


This unindicted co-conspirator, Person-1, then explained that all Proud Boys leaders must obey the orders of any person in the senior leadership chat. That means UCC-1, Person-1 and Person-2 had directorial authority over indicted defendants in the group:

“[Directions] could come from any single person that you see on your screen right now… but the one thing that everyone has to understand, is, yes, you might be getting told things from different people, but it’s all information from the same plan. [Joe] Biggs] is not going to tell you something different than I’m gonna tell you. [Proud Boys Chairman] is not going to tell you something different than Zach [Rehl] is going to tell you. It’s all one operational plan, so don’t get hung up on the delivery. The information is all the same. [Bond Motion]


So if UCC-1, Person-1 and/or Person-2 were undercover informants or agents, note that instruction given by them to other Proud Boys in the chat was to be taken as a direction coming straight “from the top.”

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


And in fact, these unindicted co-conspirators did appear to override indicted defendants:

41. On January 4, 2021, at 8:20 p.m., an unindicted co-conspirator (“UCC-1”) posted to New MOSD channel: “We had originally planned on divying them up and getting baofeng channels picked out.” [DOJ – First Superseding Indictment]


The next day, UCC-1 did in fact set up and distribute the Baofeng Chinese radio frequency [paragraph 47].

While UCC-1 set up the Chinese radios and walkie-talkie teams, and Person-1 gave operational instructions, Person-2 was repeatedly posting into the senior leadership chat the most inflammatory and inciting comments of anyone in the organization:

On January 4, prior to his arrival in Washington, D.C., Proud Boys Chairman communicated his expectation that he would be arrested upon entering Washington, D.C. Shortly thereafter, UCC-1 wrote, “We should tell our guys and double down.” Another member of MOSD leadership (“Person-2”) subsequently wrote, “I say fuck it. Let’s set it off[.]” Person-2 then posted “J20” and then “Drag them out by the fucking hair” and then “If they steal it[.]”

Notably, Person-1 and Person-2 were the same participants in the Telegram message chats on January 6 who expressed their hope that the “normies” would “burn that city to ash” and suggested that those on the ground should “turn them loose.” In addition, Person-2 was the individual who posted an alert in the Telegram messages: “Storming the Capitol now” and directed participants to “Get there.”
[DOJ Motion]


By the severe “Shock and Awe” prosecutorial standard applied to George Tanios, it is difficult to understand how the unindicted co-conspirators described above have not yet been indicted.

As yet another reminder, we are not advocating for the prosecution or indictment of anyone. Rather, we are pointing out the seeming double standard applied to certain indicted persons (George Tanios, for example) and a number of highly suspicious unindicted co-conspirators, with a view toward the strong possibility that the latter categories contain federal informants and undercover operatives.

Conclusion

By way of conclusion, let us return to a curious feature of the Michigan Plot described earlier in this report.

During one of the plot’s climactic scenes, in the main van driving up to look at Whitmer’s vacation house, three out of the five people in the van — 60 percent of the plot’s senior leaders — were undercover agents and operatives:

31. FOX, CROFT, a CHS-2, a UCE, and an individual from Wisconsin traveled in the first vehicle. While in the vehicle, CROFT and FOX discussed detonating explosive devices [DOJ Indictment]


The FBI and DOJ went to great lengths to conceal the fact that the fifth man in the van, “an individual from Wisconsin,” was actually a deep undercover federal informant.

This “individual” allegedly organized the initial June 6, 2020 meeting in Dublin, Ohio where the entire Michigan Plot was allegedly hatched. He even allegedly paid for the attendees’ hotel rooms to travel there.

No wonder that the FBI-DOJ tried to conceal the central role of their mole in setting in motion a conspiracy blamed entirely on patriot/militia groups!

The “individual from Wisconsin,” also referenced variously throughout the Michigan Plot courts documents as “an individual”, is the longtime government mole Steve Robeson. We know this, because in November 2020, one month after the October 2020 indictment was filed, Steve Robeson blew his cover by spilling on a livestream: “I am the individual from Wisconsin.”


The criminal complaint describes a late-night surveillance run in mid-September from the group’s remote training site in Luther to Whitmer’s vacation home in northern Michigan. Three vehicles made the trip, including a truck containing five people: accused ringleader Adam Fox, Croft, an informant, an undercover FBI agent and “an individual from Wisconsin.”

“That’s me,” Robeson tells members during the online meeting. “I’m the individual from Wisconsin.”
[Detroit News]


Steve Robeson, 58, had been penetrating right-wing patriot/militia groups as a secret informant for the Federal government for over 35 years.

Robeson has a history of testifying for the government. In 1985, he testified against a suspect in a murder and arson case involving members of the Ghost Riders motorcycle gang, according to a Wisconsin State Journal article. The article portrays Robeson as a jailhouse snitch who shared a county jail cell with one defendant in the case. [Detroit News]


In a possible preview of what might come for some of the unindicted co-conspirators in 1/6, the FBI-DOJ burned Robeson, their own secret informant, by hitting the man they paid to infiltrate patriot groups with a 10-year charge for owning a gun (as a convicted child molester, he was not allowed to own a gun, which the FBI obviously knew in advance). Perhaps this is the price that Robeson paid for blowing his cover?

There is a fascinating moment in the October 14 preliminary hearing where Detroit FBI Field Office Special Agent Richard Trask brings personal notes to the stand, which he only consults when talking about key events concerning the “individual from Wisconsin”. When questioned on cross-examination about the contents of the notes and why they weren’t disclosed to defense counsel, Special Agent Trask says his admits his notes were prepped in a joint meeting the night before between the FBI and DOJ. When defense counsel Mr. Graham motions the judge for a copy of the notes, DOJ prosecutor Mr. Kessler rushes in to specify that defense counsel will only get a redacted version of the notes because they relate to unindicted co-conspirators and concealed-identity informants. [Preliminary Hearing Transcript – also see image sequence 1, 2, 3, 4]

Steve Robeson (“an individual”) being outed as a deep undercover FBI mole just months ago in the Michigan Plot, among other incidents, calls into question every major unindicted co-conspirator in the 1/6 case docket referred to only as “an individual.” Indeed, in the case of Robeson, the FBI and DOJ conspired to use this exact language trick to hide the existence of secret FBI informants from the judge, defense counsel and the public.

In the end, we are left with burning questions that ought to entirely reshape the way the nation thinks and talks about the events of 1/6.

From now on, every politician, commentator, and concerned citizen who cares about 1/6 has a duty to put the pressure on FBI director Christopher Wray to come clean.

In the very beginning of this piece we drew attention to Senator Klobuchar asking Christopher Wray about infiltration, but formulating the question in a way that assumed there was none. Don’t you ever kick yourself, she asked the FBI director, for not having infiltrated these groups that planned to do violence on 1/6?

Now, armed with the formidable research in this article, any politician in Senator Klobuchar’s shoes ought to kick themselves if they don’t ask the following:

Director Wray: How many of the unindicted co-conspirators in January 6 cases are now, or have been, undercover agents or confidential informants?

Indeed, pulling on the thread developed in this ground-breaking report could unravel the full story of what the FBI really knew about 1/6 — a potentially extraordinary scandal.

Stay tuned. We’re not done yet.
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Re: Trump lashes out at Gov. Doug Ducey following certificat

Postby admin » Sat Jun 26, 2021 10:41 pm

NY Court Suspends Rudy Giuliani's Law License for Stream of "Uncontroverted" Lies About the Election
by Glenn Kirschner
Jun 24, 2021

In a stunning 33-page court order, the New York Supreme Court, Appellate Division, suspended Rudy Giuliani's law license for his steady stream of what the court calls "uncontroverted lies" about the 2020 presidential election. The court sets out in excruciating detail the evidence that proves Giuliani lied about, among other things, voting in Pennsylvania, voting in Georgia, dead people voting, underage people voting, convicted felons voting, etc. The judges detailed how Giuliani lied at press conferences, at state legislative hearings, on radio interviews, podcasts, TV shows and in court.

This video reviews the highlights (or perhaps lowlights) of the court's findings about Giuliani's sweeping and systematic lies designed to undermine confidence in our free and fair elections.



***********************

Giuliani Law License Suspended is Part 1 of Accountability: SDNY Criminal Investigation is Part 2
by Glenn Kirschner
Jun 25, 2021

A unanimous 5-judge panel of the New York Supreme Court, Appellate Division, suspended Rudy Giuliani's law license for his incessant, uncontroverted lies about the 2020 election. That is an important Part 1 of accountability for Giuliani's wrongdoing. Part 2 involves the ongoing criminal investigation the Department of Justice/Southern District of New York US Attorney's Office is conducting of Giuliani. Additionally, Part 3 of accountability should be an investigation of Giuliani's potential exposure for inciting the January 6 insurrection by urging the angry mob to engage in "trial by combat" right before the mob went to the US Capitol and got . . . combative.

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Re: Trump lashes out at Gov. Doug Ducey following certificat

Postby admin » Sat Jun 26, 2021 10:43 pm

In the Matter of Rudolph W. Giuliani, An Attorney and Counselor-At-Law
by Attorney Grievance Committee for the First Judicial Department
Motion No. 2021-00491
May 3, 2021

Supreme Court of the State of New York
Appellate Division, First Judicial Department
Rolando T. Acosta, P.J.,
Dianne T. Renwick
Sallie Manzanet-Daniels
Judith J. Gische
Barbara R. Kapnick, JJ.

Motion No. 2021-00491
Case No. 2021-00506

In the Matter of
RUDOLPH W. GIULIANI
(ADMITTED AS RUDOLPH WILLIAM GIULIANI),
an attorney and counselor-at law:

ATTORNEY GRIEVANCE COMMITTEE FOR THE
FIRST JUDICIAL DEPARTMENT,
Petitioner,
RUDOLPH W. GIULIANI,
(OCA ATTY. REGISTRATION NO. 1080498),
Respondent.

Disciplinary proceedings instituted by the Attorney Grievance Committee for the First Judicial Department. Respondent was admitted to the Bar of the State of New York at a Term of the Appellate Division of the Supreme Court for the Second Judicial Department on June 25, 1969.

Appearances:

Jorge Dopico, Chief Attorney,
Attorney Grievance Committee, New York
(Kevin M. Doyle, of counsel), for petitioner.

Barry Kamins, Esq. and John Leventhal, Esq., Aidala, Bertuna & Kamins, P.C., for respondent.

IN THE MATTER OF RUDOLPH W. GIULIANI, AN ATTORNEY

PER CURIAM

The Attorney Grievance Committee moves for an order, pursuant to Judiciary Law §90(2) and the Rules for Attorney Disciplinary Matters (22 NYCRR) §1240.9(a)(5), immediately suspending respondent from the practice of law based upon claimed violations of rules 3.3(a); 4.1; 8.4(c) and 8.4(h) of the Rules of Professional Conduct (22 NYCRR 1200.0) (Rules of Conduct or RPC). Respondent was admitted to practice as an attorney and counselor at law in the State of New York on June 25, 1969, under the name Rudolph William Giuliani. He maintains a law office within the First Judicial Department.

For the reasons that follow, we conclude that there is uncontroverted evidence that respondent communicated demonstrably false and misleading statements to courts, lawmakers and the public at large in his capacity as lawyer for former President Donald J. Trump and the Trump campaign in connection with Trump’s failed effort at reelection in 2020. These false statements were made to improperly bolster respondent’s narrative that due to widespread voter fraud, victory in the 2020 United States presidential election was stolen from his client. We conclude that respondent’s conduct immediately threatens the public interest and warrants interim suspension from the practice of law, pending further proceedings before the Attorney Grievance Committee (sometimes AGC or Committee).

The Nature of this Proceeding

During the course of this ongoing investigation into numerous complaints of respondent’s alleged professional misconduct, the AGC seeks respondent’s immediate suspension from the practice law in the State of New York. Under certain circumstances, such serious interim relief is available, pending a full formal disciplinary proceeding. Interim suspension is available even where formal charges have not yet been filed (22 NYCRR 1240.9[a]).

All attorneys who are licensed to practice law in New York are subject to the Rules of Conduct, which establish a framework for the ethical practice of the law and a lawyer’s duties as an officer of the legal system (Preamble to the Rules of Professional Conduct, ¶¶ 1, 8). Violation of these rules may lead to professional discipline (22 NYCRR 1240). The ultimate purpose of any disciplinary proceeding, however, is not to impose punishment for breaches of the Rules of Conduct, but rather "to protect the public in its reliance upon the integrity and responsibility of the legal profession" (Matter of Nearing, 16 AD2d 516, 518 [1st Dept 1962]; see Matter of Gould, 4 AD2d 174 [1st Dept 1957]).

Each Judicial Department of the Appellate Divisions of the New York Supreme Court is responsible for the enforcement of the Rules of Professional Conduct within its departmental jurisdiction (Judiciary Law § 90[2]). Attorney Grievance Committees, either upon receipt of a written complaint, or acting sua sponte, are charged with investigating misconduct through various means, including interviewing witnesses, directing the attorney under investigation to submit written responses or appear for a formal interview, and other actions necessary to investigate the complaint (22 NYCRR 1240.7). Once the investigation is complete, the Committee may commence a formal proceeding in which the attorney has the right to be heard. If the Committee concludes that the attorney may face public discipline, then, consistent with the objective of “protect[ing] the public, maintain[ing] the integrity and honor of the profession, or deter[ing] others from committing similar misconduct,” the matter is brought before the Appellate Division (22 NYCRR 1240.7[d][2][v]; see also 1240.8; Matter of Nearing, 16 AD2d at 518). The Court is tasked with the responsibility of reviewing the record and deciding whether there has been any misconduct and if so, what the appropriate discipline would be (22 NYCRR 1240.8).

In certain cases, the Committee may, during the pendency of its investigation, make a motion to the Court for an attorney’s interim suspension. Interim suspension is a serious remedy, available only in situations where it is immediately necessary to protect the public from the respondent’s violation of the Rules (22 NYCRR 1240.9; see Matter of Liebowitz, 2020 WL 7421390 [SD NY 2020]). At bar, the AGC is proceeding on the basis that there is uncontroverted evidence of professional misconduct (22 NYCRR 1240.9[a][5]; Matter of Aris, 162 AD3d 75, 81 [1st Dept 2018]; Matter of Pomerantz, 158 AD3d 26, 28 [1st Dept 2018]).1 Importantly, when an attorney is suspended on an interim basis, he or she nonetheless has an opportunity for a postsuspension hearing (22 NYCRR 1240.9[c]).

Uncontroverted Claims of Misconduct

Only uncontroverted claims of professional misconduct may serve as a basis for interim suspension on this motion. In connection with its claim that uncontroverted attorney misconduct has occurred, the AGC relies upon the following provisions of the New York Rules of Professional Conduct:

rule 3.3 which provides that: “(a) A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal . . . .”

rule 4.1 which provides that: “In the course of representing a client, a lawyer shall not knowingly make a false statement of fact or law to a third person,” and

rule 8.4 “A lawyer or law firm shall not: . . . (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation, . . . or (h) engage in any other conduct that adversely reflects on the lawyer’s fitness as a lawyer.”

Under the Rules of Professional Conduct, the prohibition against false statements is broad and includes misleading statements as well as affirmatively false statements (Matter of Antoine, 74 AD3d 67, 72 [1st Dept 2010]; Matter of Piepes, 259 AD2d 135, 137 [2d Dept 1999]; see ABA Model Rule 4.1, commentary [“Misrepresentations can also occur by partially true, but misleading statements or omissions that are the equivalent of affirmative false statements”]). In addition, the Rules concern conduct both inside and outside of the courtroom (see Matter of Coyne, 136 AD3d 176 [1st Dept 2016]; Matter of Liotti, 111 AD3d 98 [1st Dept 2013], lv denied 22 NY3d 862 [2014]; Matter of Rios, 109 AD3d 64 [1st Dept 2013]; Matter of Krapacs, 189 AD3d 1962 [3d Dept 2020]).

In general, the AGC relies upon statements that respondent made following the 2020 election at press conferences, state legislative hearings, radio broadcasts (as both a guest and host), podcasts, television appearances and one court appearance. Respondent concedes that the statements attributed to him in this motion were all made in the context of his representation of Donald J. Trump and/or the Trump campaign (Giuliani affidavit ¶¶ 8, 32).

Preliminary Issues

Respondent raises an overarching argument that the AGC's investigation into his conduct violates his First Amendment right of free speech.2 He does not attack the constitutionality of the particular disciplinary rules; he seemingly claims that they are unconstitutional as applied to him. We reject respondent’s argument. This disciplinary proceeding concerns the professional restrictions imposed on respondent as an attorney to not knowingly misrepresent facts and make false statements in connection with his representation of a client. It is long recognized that “speech by an attorney is subject to greater regulation than speech by others" (Gentile v State Bar of Nevada, 501 US 1030, 1051 [1991]). Unlike lay persons, an attorney is "a professional trained in the art of persuasion" (Ohralik v Ohio State Bar Assn., 436 US 447, 465 [1978]). As officers of the court, attorneys are "an intimate and trusted and essential part of the machinery of justice" (Gentile v State Bar of Nevada, 501 US at 1072 [internal quotation marks omitted]). In other words, they are perceived by the public to be in a position of knowledge, and therefore, "a crucial source of information and opinion" (Gentile v State Bar of Nevada, 501 US at 1056 [internal quotations marks omitted]). This weighty responsibility is reflected in the "ultimate purpose of disciplinary proceedings [which] is to protect the public in its reliance upon the integrity and responsibility of the legal profession" (Matter of Nearing, 16 AD2d at 518). While there are limits on the extent to which a lawyer's right of free speech may be circumscribed, these limits are not implicated by the circumstances of the knowing misconduct that this Court relies upon in granting interim suspension in this case (see Kathleen M. Sullivan, The Intersection of Free Speech and the Legal Profession: Constraints on Lawyers’ First Amendment Rights, 67 Fordham L Rev 569 [1998] available at https://ir.lawnet.fordham.edu/flr/vol67/iss2/11/ [last accessed June 1, 2021]). 3

Respondent also raises lack or absence of knowledge as a general defense, stating that even if his statements were false or misleading, he did not make the statements knowing they were false when he made them. We agree that the Rules of Professional Conduct only proscribe false and misleading statements that are knowingly made. Both rules 3.3 and 4.1, expressly provide for an element of knowingness. Rule 8.4 (c), however, contains no such express element. In New York there are no cases which directly hold that a violation of rule 8.4(c) must be knowing, although there is authority that implies it. In a Federal case applying New York’s Rules, the court found that there was a violation of rule 8.4(c) where false statements made by the offending attorney were not inadvertent, but were knowing (Matter of Gilly, 206 F Supp 3d 940, 944 [SD NY 2016]). This Court thereafter imposed reciprocal discipline based on that finding (Matter of Gilly, 149 AD3d 230 [1st Dept 2017]). Sister state jurisdictions have held that knowledge is a required element of misconduct in violation of rules identical to RPC 8.4(c) (see Office Of Disciplinary Counsel v Anonymous Attorney A., 552 Pa 223, 230, 714 A2d 402, 406 [1998] [listing sister states requiring a culpable mental state for violation of rule 8.4(c)]; see also Attorney Grievance Commn. of Maryland v Dore, 433 Md 685, 698, 73 A3d 161, 169 [2013][holding that violation of rule 8.4(c) requires a knowingly dishonest statement]). We, therefore, hold that in order to find a violation of RPC 8.4(c), the AGC is required to satisfy a knowing standard. Knowingness is expressly defined in the Rules of Professional Conduct. Rule 1.0(k) provides that “[k]nowingly,” “known,” “know” or “knows” “denotes actual knowledge of the fact in question. A person’s knowledge may be inferred from circumstances.” Thus, the element of knowingness must be considered in connection with each particular claim of misconduct.

On this motion, whenever the AGC has sustained its burden of proving that respondent made knowing false and misleading factual statements to support his claim that the presidential election was stolen from his client, respondent must then demonstrate that there is some legitimate dispute about whether the statement is false or whether the statement was made by him without knowledge it was false. Conclusory or vague arguments will not create a controverted issue as to whether there has been misconduct. Consequently, once the AGC has established its prima facie case, respondent’s references to affidavits he has not provided, or sources of information he has not disclosed or other nebulous unspecified information, will not prevent the Court from concluding that misconduct has occurred.4 Respondent cannot create a controverted issue of misconduct based upon what he does not submit to this Court (see S.J. Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338, 342 [1974] [the plaintiff did not raise issue of fact where affidavit merely stated bald, conclusory assertions and there was no claim that facts were not within the plaintiff’s control]; see also Primiano Elec. Co. v HTS-NY, LLC, 173 AD3d 620, 622 [1st Dept 2019] [the defendant failed to raise an issue of fact by relying on the contents of an expert report which was, in turn, based on an unsubmitted report of a third-party’s opinion]). Nor will offers to provide information at a later time, or only if the Court requests it, suffice.

Instances of Attorney Misconduct

In making this motion, the AGC primarily relies on claims that respondent made false and misleading factual statements to cast doubt on the reliability of the results of the 2020 presidential election, in which Joseph R. Biden was constitutionally certified and then inaugurated as the 46th President of the United States. We find that the following false statements made by respondent constitute uncontroverted proof of respondent’s professional misconduct.

Respondent repeatedly stated that in the Commonwealth of Pennsylvania more absentee ballots came in during the election than were sent out before the election. The factual “proof” he claimed supported his conclusion was that although Pennsylvania sent out only 1,823,148 absentee ballots before the election, 2,589,242 million absentee ballots were then counted in the election. This factual statement regarding the number of ballots mailed out before the election was simply untrue. The true facts are that 3.08 million absentee ballots were mailed out before the general election, which more than accounted for the over 2.5 million mail-in ballots that were actually tallied.

Notwithstanding the true facts, respondent repeatedly advanced false statements that there were 600,000 to 700,000 fabricated mail-in ballots, which were never sent to voters in advance of the election.5 Respondent made these false claims during his November 8, 2020 radio program, Uncovering the Truth with Rudy Giuliani & Dr. Maria Ryan, during a November 25, 2020 meeting of the Republican State Senate Majority Policy Committee in Gettysburg, Pennsylvania, during a December 2, 2020 meeting of the Michigan House Oversight Committee, during his December 17, 2020 broadcast of the radio show Chat with the Mayor, and he repeated it during an episode of Steve Bannon's the War Room: Pandemic podcast on December 24, 2020.

Respondent does not deny that his factual statement, that only 1.8 million mail-in ballots were requested, was untrue. His defense is that he did not make this misstatement knowingly. Respondent claims that he relied on some unidentified member of his “team” who “inadvertently” took the information from the Pennsylvania website, which had the information mistakenly listed (Giuliani affidavit ¶49). There is simply no proof to support this explanation. For instance, there is no affidavit from this supposed team member who is not identified by name or otherwise, nor is there any copy of the web page that purportedly listed the allegedly incorrect data. In fact, the only proof in this record is the official data on the Pennsylvania open data portal correctly listing the ballots requested as 3.08 million.

The above identified misstatements violate Rules of Professional Conduct 4.1 and 8.4(c).

On November 17, 2020 respondent appeared as the attorney for plaintiff on a matter captioned Donald J. Trump for President, Inc. v Boockvar (Boockvar), in the United States District Court for the Middle District of Pennsylvania (502 F Supp 3d 899, affd 830 Fed Appx 377 [3d Cir 2020]). He was admitted pro hac vice based on his New York law license.

Respondent repeatedly represented to the court that his client, the plaintiff, was pursuing a fraud claim, when indisputably it was not. Respondent’s client had filed an amended complaint before the November 17, 2020 appearance in which the only remaining claim asserted was an equal protection claim, not based on fraud at all. The claim concerned the experience of two voters having their mail-in ballots rejected and challenged the notice and cure practices concerning mail-in ballots in different counties.

The plaintiff’s original complaint had included claims about canvassing practices. The plaintiff, however, voluntarily withdrew those claims when it served the amended complaint. Notwithstanding, respondent insisted on extensively arguing a fraud case based on the withdrawn canvassing claims. 6 7

Respondent’s mischaracterization of the case was not simply a passing mistake or inadvertent reference. Fraud was the crown of his personal argument before the court that day. In his opening remarks, respondent claimed that the allegations in the complaint concerned “widespread, nationwide voter fraud of which this is a part…." He persisted in making wide ranging conclusory claims of fraud in Pennsylvania elections and other jurisdictions allegedly occurring over a period of many years. Respondent argued that the plaintiff’s fraud arguments pertained to the canvassing claim, notwithstanding that there was neither a fraud nor a canvassing claim before the court. Respondent’s fraud argument spanned pages 12 to 31 of the transcript.

After opposing counsel pointed out, and respondent’s own co-counsel agreed, that the plaintiff had asserted no claims of fraud the court made the following inquiries and received the following answers from respondent:

"THE COURT: So it's correct to say then that you're not alleging fraud in the amended complaint?

"RESPONDENT: No, Your Honor, it is not, because we incorporate by reference in 150 all of the allegations that precede it, which include a long explanation of a fraudulent, fraudulent process, a planned fraudulent process.

"THE COURT: So you are alleging fraud?

RESPONDENT: Yes, Your Honor."

Later in the transcript, after the court pointed respondent to the amended complaint, the following further court inquiries and responses occurred:

"THE COURT: . . . So the amended complaint—does the amended complaint plead fraud with particularity?

"RESPONDENT: No, Your Honor. And it doesn’t plead fraud. It pleads the -- it pleads the plan or scheme that we lay out in 132 to 149 without characterizing it."

These proceedings were open by phone line to as many as 8,000 journalists and other members of the public. At the outset of the argument it was reported that at least 3,700 people had already dialed in.

It is considered a false and misleading statement under the Rules of Professional Conduct to mispresent the status of a pending proceeding, whether in or out of court (Matter of Zweig, 117 AD3d 96 [1st Dept 2014]; Matter of Napolitano, 78 AD3d 18 [2d Dept 2010]; Matter of Passetti, 53 AD3d 1031 [3d Dept 2008]). Stating that a case presents a fraud claim when it does not, is a false and misleading statement about the status of a pending proceeding.

Respondent argues that there was no misconduct because he truthfully told the court that day that there were no fraud claims. This defense rings hollow. Respondent’s original position, that there was a fraud claim, was made despite an amended complaint in which his very own client withdrew any fraud related claim. Respondent's own cocounsel represented, in respondent’s presence, that the plaintiff was not asserting a fraud claim and there was extensive argument by opposing counsel. It is indisputable that respondent had to be aware that there were no fraud claims in the case. Significant time and effort were expended on respondent's false misrepresentations to the court regarding the nature of the proceedings. This resulted in respondent’s arguments in support of fraud appearing to be seemingly unanswered on the record and misleading the listening public, because fraud was not a part of the case. Respondent’s so-called admission of the true status of the case did not occur until he was pressed by the court to concede the point at page 118 of the transcript.

The confusion respondent created by falsely insisting that there was a fraud/canvassing claim before the court persisted beyond that court appearance. The parties were given leave to submit briefs. Plaintiff’s brief included argument about the canvassers' claim, even though it had been withdrawn. Consequently, the court addressed the claim in its subsequent decision and dismissed it on the merits. In footnote 127 the court stated “Count I makes no mention of the poll-watching allegations, nor does it seek relief for any violation of law on the basis of those allegations. Out of an abundance of caution, however, the Court considers whether these allegations state a claim” (Boockvar, 502 F Supp 3d at 921 n 127).

The above identified misstatements violate RPC 8.4(c). These misstatements violate RPC 3.3 because they were made before a tribunal. These misstatements violate RPC 4.1 because they were made to third parties consisting of over 3,700 members of the press and the public.

Respondent repeatedly stated that dead people “voted” in Philadelphia in order to discredit the results of the vote in that city. He quantified the amount of dead people who voted at various times as 8,021; while also reporting the number as 30,000. As the anecdotal poster child to prove this point, he repeatedly stated that famous heavyweight boxer Joe Frazier continued to vote years after he was dead and stated on November 7, 2020 “he is still voting here.” The public records submitted on this motion unequivocally show that respondent’s statement is false. Public records show that Pennsylvania formally cancelled Mr. Frazier’s eligibility to vote on February 8, 2012, three months after he died.

As for respondent's argument that his misstatements were unknowing, respondent fails to provide a scintilla of evidence for any of the varying and wildly inconsistent numbers of dead people he factually represented voted in Philadelphia during the 2020 presidential election. Although respondent assured the public that he was investigating this claim, respondent has not provided this tribunal with any report or the results of any investigation which supports his statements about how many dead voters he claims voted in Philadelphia in the 2020 presidential election. Respondent claims his statements were justified because the state of Pennsylvania subsequently agreed to purge 21,000 dead voters from its rolls in 2021. This fact, even if true, is beside the point. This statistic concerns the whole state. Purging voter rolls does not prove that the purged voters actually voted in 2020 and per force it does not prove they voted in Philadelphia. It does not even prove that they were dead in November 2020. Moreover, the number of statewide purged voters (21,000) bears no correlation to the numbers of dead voters respondent factually asserted voted in Philadelphia alone (either 8,000 or 30,000). Clearly any statewide purging of voters from the voting rolls in 2021 could not have provided a basis for statements made by respondent in 2020, because the information did not exist. Regarding Mr. Frazier, respondent claims he reasonably relied on the reporting of a “blogger.” The blog article provided on this motion, however, never claims that Mr. Frazier voted in the 2020 election. Nor could it, because the claims made in the article (in which respondent was quoted) are based upon an alleged review of public records from 2017 and 2018.8

Respondent made these false statements at least twice before the AGC brought this motion; first at a November 7, 2020 press conference at Four Seasons Total Landscaping and again during the November 25, 2020 meeting of the Republican State Senate Majority Policy Committee in Gettysburg, Pennsylvania. Despite the unequivocal evidence provided in this very motion, that Mr. Frazier is not on the Pennsylvania voting rolls, respondent continued to endorse this fictionalized account in the March 4, March 11 and March 14, 2021 episodes of his broadcast radio show Chat with the Mayor, all of which aired after this motion was brought.

The above identified misstatements violate RPC 4.1 and RPC 8.4(c ).

Respondent repeated to lawmakers and the public at large numerous false and misleading statements regarding the Georgia presidential election results. These statements, as particularized below, were all knowingly made with the object of casting doubt on the accuracy of the vote. Respondent's general claim, without providing this Court with any documentary support, that he relied on “hundreds of pages of affidavits and declarations in [respondent’s] possession that document gross irregularities…” will not suffice to controvert the specific findings that he knowingly made the false statements that are particularized below.

Respondent made extensive and wide-ranging claims about Dominion Voting Systems Inc.'s voting machines manipulating the vote tallies to support his narrative that votes were incorrectly reported. Georgia, however, had completed a hand count of all ballots cast in the presidential audit.9 The hand audit, which relied exclusively on the printed text on the ballot-marking device, or bubbled-in the choice of the absentee ballot, confirmed the results of the election with a zero percent risk limit. Respondent's statement that the vote count was inaccurate, without referencing the hand audits, was misleading. By law, this audit was required to take place following the election and be completed no later than December 31, 2020 (Ga Ann § 21-2-498). Respondent’s statements were made while the hand audit was proceeding and after it concluded. We understand that Dominion has sued respondent for defamation in connection with his claims about their voting machines (Complaint, US Dominion, Inc. v Giuliani, 1:21-cv- 00213, US District Court, District of Columbia [Washington], January 25, 2021). Consequently, we do not reach the issue of whether respondent’s claims about the Dominion voting machines were false, nor do we need to.

In view of the hand counts conducted in Georgia, we find that respondent’s statements about the results of the Georgia election count are false. Respondent provides no basis in this record for disputing the hand count audit. Respondent made these statements at least on December 3, 2020 when appearing before the Georgia Legislature’s Senate Judiciary Committee, during a December 6, 2020 episode of the radio show Uncovering the Truth, during a December 22, 2020 episode of his radio show Chat with the Mayor, he alluded to it in a December 27, 2020 episode of Uncovering the Truth, and then again during a January 5, 2021 episode of the War Room podcast.

The above identified misstatements violate RPC 4.1 and RPC 8.4(c).

At various times, respondent claimed that 65,000 or 66,000 or 165,00 underage voters illegally voted in the Georgia 2020 election. The Georgia Office of the Secretary of State undertook an investigation of this claim. It compared the list of all of the people who voted in Georgia to their full birthdays. The audit revealed that there were zero (0) underage voters in the 2020 election. While a small number of voters (four) had requested a ballot prior to turning 18, they all turned 18 by the time the election was held in November 2020. Respondent does not expressly deny the truth of this information. Instead respondent claims that he reasonably relied on “expert” affidavits, including one by Bryan Geels, in believing the facts he stated were true. None of these affidavits were provided to the Court. Respondent claims that Mr. Geels opined that there were “more than 65,000 individuals who voted had registered to vote prior to their 17th birthday” (Giuliani affidavit ¶62). At a bare minimum, the statement attributed to Mr. Geels does not support respondent’s claim that the number of underage teenage voters was 165,000. But respondent’s statement about what was said to him is insufficient as to all of respondent’s statements on underage voters for other reasons. We do not have the affidavit that respondent claims Mr. Geels prepared and he relied on. We do not know when the affidavit was provided to respondent. We do not know what data or source information Mr. Geels relied on in reaching his conclusion, nor do we know what methodology Mr. Geels used for his analysis. Other than respondent calling him an “expert,” we do not know Mr. Geels' actual area of expertise or what qualifies him as such (see Guide to NY Evid Rule 7.01, Opinion of Expert Witness). Merely providing names and conclusory assertions that respondent had a basis for what he said, does not raise any disputed issue about whether misconduct has occurred.

Respondent made statements regarding underage voters in Georgia on his radio show, Chat with the Mayor, at least on January 5, January 7, and January 22, 2021. He then repeated this statement on the April 27th episode of his radio show, after this motion for interim suspension was brought.

The above identified misstatements violate RPC 4.1 and RPC 8.4(c).

Respondent stated to lawmakers, and the public at large, that more than 2,500 Georgia felons voted illegally. The Georgia Secretary of State also investigated this claim. By comparing lists from the Departments of Corrections and Community Supervision, with the list of people who actually voted in November 2020, the Secretary of State identified a universe of 74 potential felony voters, who were then investigated. Even if all 74 identified persons actually voted illegally, the number is nowhere near the 2,500 that respondent claimed and the number would, in any event, be statically irrelevant in supporting a claim that the election was stolen (see Bognet v Secretary Commonwealth of Pa., 980 F3d 336, 351 [3d Cir 2020], cert granted, judgment vacated sub nom Bognet v Degraffenreid ---US---, 2021 WL 1520777, 2021 US LEXIS 1952 [2021] [for the plaintiff to have standing, challenged votes must be sufficient in number to change outcome]; Sibley v Alexander, 916 F Supp 2d 58, 62 [DC 2013] [the plaintiff failed to satisfy redressability element where the three challenged electoral votes would not change outcome of election]).10 Respondent’s statements that there were 2,500 voting felons is false.

Respondent claims to have relied on the unproduced affidavit of Mr. Geels for this information as well. Respondent states that Mr. Geels opined that “there could have been” more than 2,500 incarcerated felons who voted (Giuliani affidavit ¶62). This opinion, as phrased and as reported by respondent, is wholly speculative. It is also conclusory, rendering it insufficient for the same reasons as is Mr. Geels' reported opinion regarding underage voters.

On January 5, 2021, during a War Room podcast respondent stated that at least 2,500 felons voted in the Georgia election.

The above identified misstatements violate RPC 4.1 and RPC 8.4(c).

Respondent stated that dead people voted in Georgia during the 2020 presidential election. He claimed that he had the names of 800 dead people who voted based upon the number of people who had passed away in 2020. Respondent further stated that this number was really in the thousands. At another point he claimed that 6,000 dead people had voted. This claim was refuted by the Georgia Secretary of State. After reviewing public records, the Secretary of State concluded that potentially two votes may have been improperly cast in the name of dead voters in the 2020 election and those instances were being investigated. Respondent's claim of thousands of dead voters is false. So is respondent’s claim of 800 dead voters. The two potentially dead voters discovered by the Secretary of State during its investigation is not statistically relevant to affect election results and does not support any narrative of fraud. Respondent does not claim that either of the identified experts he relied upon for information about the Georgia election made any statement to him whatsoever regarding the number of dead people in whose names votes were allegedly cast in the 2020 election and he does not provide any other source for the false numerical information he disseminated (Giuliani affidavit ¶62).

On December 22, 2020, during a War Room podcast, respondent stated that 6,000 dead people voted. On January 3, 2021, during an episode of Uncovering the Truth, respondent stated that 10,515 dead people voted. On January 5, 2021, during a War Room podcast, respondent stated that 800 or more dead people voted in the Georgia election. On the April 7, 2021 episode of his radio show Chat with the Mayor, respondent challenged the Georgia Secretary of State’s finding that only potentially two votes were cast in the name of dead voters, despite having no evidence to refute the facts developed after investigation of public records. The April 7th false statement was made after this motion for interim suspension was brought.

The above identified misstatements violate RPC 4.1 and RPC 8.4(c).

Respondent represented that video evidence from security cameras depicted Georgia election officials engaging in the illegal counting of mail-in ballots. Although respondent acknowledged that he had viewed the surveillance videos in their entirety (this statement is available at https://rudygiulianics.com/episode/vide ... ncecaught- red-handed-trump-won-georgia-rudy-giuliani-ep-92/3:56 [last accessed June 1, 2021]) the version of the videos shown to the public was comprised only of snippets.11 The gist of his claim was that illegal ballots were being surreptitiously retrieved from suitcases hidden under a table and then tabulated. In fact, the entirety of the videos shows the “disputed” ballots were among those in a room filled with people, including election monitors, until about 10:00 pm. At about 10:00 p.m., the boxes – not suitcases – containing the ballots were placed under a table in preparation for the poll watchers to leave for the evening. Those boxes were reopened and their contents retrieved and scanned when the state official monitor intervened, instructing the workers that they should remain to tabulate the votes until 10:30 p.m. that evening. When viewed in full context and not as snippets, the videos do not show secreting and counting of illegal ballots. Based upon the claim, however, the Georgia Secretary of State conducted an investigation. The video tapes were viewed in their entirety by the Secretary’s office, law enforcement, and fact checkers who, according to Secretary of State Brad Raffensperger, all concluded that there was no improper activity.

Respondent's argument with respect to the video is that a reasonable observer could conclude that there was an illegal counting of the mail-in ballots. If, as respondent claims, he reviewed the entire video, he could not have reasonably reached a conclusion that illegal votes were being counted. We disagree that the video can be viewed as evidence of illegal conduct during the vote tabulation process or that it provided a reasonable basis for respondent’s conclusions.

Respondent showed the snippets of video and/or made false statements regarding its content on at least the following occasions: the podcast Rudy Giuliani’s Common Sense on December 4, 2020, the radio show Uncovering the Truth on December 6, 2020 and then again on the same radio show on December 27, 2020 and January 3, 2021; on December 3, 2020 at a hearing before the Georgia State Legislature; and yet again on December 8, 2020 and December 10, 2020 on respondent’s Chat with the Mayor radio program, and on December 19, 2020, and January 5, 2021 as a guest on the War Room podcast.

The above identified misstatements violate RPC 4.1 and RPC 8.4(c).

Respondent made false and misleading statements that “illegal aliens” had voted in Arizona during the 2020 presidential election. These false facts were made by respondent to perpetuate his overall narrative that the election had been stolen from his client.

On November 30, 2020, respondent appeared before a group of Arizona legislators at the Hyatt Regency Hotel in Phoenix. It was acknowledged during that session that no statewide check on undocumented noncitizens had been performed. In other words, there was no data available from which to draw any conclusion about undocumented noncitizens. Nonetheless, respondent persisted in stating, during that same session, that there were “say” five million “illegal aliens” in Arizona and that “[i]t is beyond credulity that a few hundred thousand didn’t vote . . . .” Undeterred by the lack of any empirical evidence, in a December 17, 2020 episode of Chat with the Mayor, respondent queried “Do you think more than 10,000 illegal aliens voted in Arizona?....We know that way more than 10,000 illegal immigrants voted.” During an appearance on the War Room podcast on December 24, 2020 respondent once again claimed with respect to the number of undocumented noncitizens who voted in Arizona that “the bare minimum is 40 or 50,000, the reality is probably about 250,000 . . . .” He then used these unsubstantiated figures to support a claim that Trump won Arizona by about 50,000 votes (id.). After the New Year, in another episode of the War Room podcast, the number of “illegal immigrants” respondent was claiming had voted illegally changed yet again. This time respondent claimed there were 32,000 of such illegal votes. Respondent admitted in the podcast that he did not have the “best sources” to justify this estimate, but stated that he was relying on “newspaper and records” for his claims (id.). Respondent later either reiterated and/or agreed with statements made by others, that undocumented noncitizens had voted in Arizona in the 2020 election; he made these statements during the March 9th, 11th, and April 27, 2021 broadcasts of his Chat with the Mayor radio show and on April 21, 2021 during an appearance on the War Room podcast. Respondent made these misstatements most recently after the AGC brought this motion for his interim suspension.

On their face, these numerical claims are so wildly divergent and irreconcilable, that they all cannot be true at the same time. Some of the wild divergences were even stated by respondent in the very same sentence. Moreover, at the November 30, 2020 hearing, when it was brought to respondent’s attention that no study to support the conclusions had been done, respondent persisted in making these false factual statements. In January 2021, respondent even admitted that he did not have the “best sources” to justify the numbers he was stating as fact. Nonetheless, respondent has failed to produce any sources, whether “best” or marginal, to support any of the figures he has presented to the public with authority. He has not identified, let alone produced the “newspaper and records” he claimed were the bases for his assertions when he made them.

Respondent argues that he reasonably relied on Arizona State Senator Kelly Townsend, who respondent claims collected information on noncitizen voters. Respondent does not tell us what Senator Townsend actually said to him or when she said it. We do not have an affidavit or any statement from Senator Townsend. We simply have none of the information Senator Townsend is claimed to have collected. Saying that Senator Townsend collected information does not explain any of respondent’s numbers, let alone why they are wildly divergent. Respondent’s claim, that he also relied on “other witnesses” who testified that thousands of individuals voted despite any proof of citizenship, lacks detail and is not specific enough to be considered by this Court as probative. Not one of those witnesses is identified, none of their testimony is provided, nor has respondent provided an affidavit from any of them. Respondent cannot rely on this “evidence” to controvert that he knowingly made false statements to the public about the number of "illegal aliens" or "illegal immigrants" voting in the Arizona 2020 presidential election.

The above identified misstatements violate RPC 4.1 and RPC 8.4(c ).

We find that all of these acts of misconduct, when considered separately or taken together, also establish that respondent violated RPC 8.4 (h) because his conduct adversely reflects on his fitness as a lawyer.


We recognize that the AGC has identified other instances of respondent’s misconduct. We make no substantive decision on those additional claims at this time because the record is insufficiently developed on those claims in this motion for interim relief. The additional claims may be part of any formal charges that the AGC will interpose in the full disciplinary proceeding that will follow this interim suspension. We find, nonetheless, that the incidents we have identified in this decision satisfy the requirement of uncontroverted misconduct required for an interim suspension.

Immediate Threat to the Public Interest

Uncontroverted claims of misconduct alone will not provide a basis for interim suspension, unless there is a concomitant showing of an immediate threat to the public interest (22 NYCRR 1240.9[a]). We recognize that this case presents unique circumstances. Nonetheless, there are certain factors we generally consider in connection with whether an immediate threat of harm to the public has been established.

Violation of the Rules of Professional Conduct in and of themselves necessarily means that there is harm to the public (Matter of Nearing, 16 AD2d at 516). One obvious factor to consider on an interim suspension application is whether the misconduct is continuing (Matter of Singer, 301 AD2d 336, 337 [1st Dept 2002]). Even where there are no actual incidents of continuing misconduct, immediate harm threatening the public can be based on the risk of potential harm when considered in light of the seriousness of the underlying offense (Matter of Tannenbaum, 16 AD3d 66 [1st Dept 2005]). Many cases where the seriousness of the offending conduct alone satisfies the immediate threat requirement for an interim suspension concern the mishandling of money (see Matter of Hornstein, 121 AD3d 1 [1st Dept 2014]; Matter of Jackson, 103 AD3d 10 [1st Dept 2013]; Matter of Schachter, 100 AD3d 45 [1st Dept 2010]; Matter of Tannenbaum at 67). The broader principle to be drawn from these cases is that when the underlying uncontroverted evidence of professional misconduct is very serious, the continued risk of immediate harm to the public during the pendency of the underlying disciplinary proceeding is unacceptable. For example, we have ordered interim suspensions where the offense is serious, although the risk of recurrence is slight, because the attorney intends to resign from the practice of law (Matter of Kressner, 72 AD3d 112 [1st Dept 2010]). Another consideration, related to the seriousness factor, is whether the underlying misconduct is likely to result in a substantial sanction at the conclusion of the formal disciplinary hearing proceeding. We adopt this factor in reliance on sister state authority on the same issue (see Tapp v Ligon, 2013 Ark 259, 428 SW3d 492 [2013] [interim suspension likened to a preliminary injunction; substantial likelihood that significant sanction would be imposed]; In re Discipline of Trujillo, 24 P3d 972 [Utah 2001] [substantial likelihood, based on all the available evidence, that a significant sanction will be imposed on the attorney at the conclusion of any pending disciplinary proceeding]).

Consideration of these factors in this case leads us to conclude that the AGC has made a showing of an immediate threat to the public, justifying respondent’s interim suspension. We find that there is evidence of continuing misconduct, the underlying offense is incredibly serious, and the uncontroverted misconduct in itself will likely result in substantial permanent sanctions at the conclusion of these disciplinary proceedings.

Respondent argues that there is no immediate threat of future harm, because he has and will continue to exercise personal discipline to forbear from discussing these matters in public anymore. He also claims that because legal matters following the 2020 election have concluded, he will no longer be making any statements about the election under the authority of being an attorney.

Notwithstanding respondent’s claim that he has exercised self-restraint by not publicly commenting on the election, there are numerous instances demonstrating the opposite. Focusing only on the false statements that support our conclusion of uncontroverted misconduct (and not his statements about 2020 election matters generally), respondent has made or condoned the following false statements just since the AGC brought this application for his interim suspension: On his March 4, 2021 radio show Chat with the Mayor, respondent reprised his claim that Joe Frazier had voted from the grave. On the March 9th episode of his radio show Chat with the Mayor, respondent stated in substance that immigrants voted illegally in the 2020 presidential election. On the March 11th episode of his radio show Chat with the Mayor he again referred to Joe Frazier and “illegals” voting in Arizona. On the March 14th episode of Chat with the Mayor, respondent recounted the tale of Joe Frazier voting after he died and joked with his co-host about the Philadelphia cemeteries emptying on election day. On his April 8th episode of Chat with the Mayor, respondent disputed the fact that in Georgia only two dead people had voted, even though, as previously indicated, respondent had no informational basis for making that statement and disputing the results of Georgia’s investigation. On the April 27th episode respondent once again falsely stated that there were 65,000 underage teenage voters who had voted in Georgia. Respondent also stated that there were 38,000 “illegal immigrants” voting in Arizona, while at the same time estimating the number at maybe 5,000 or maybe 100,000 (id.). Imminent threat to the public is established by this continuing pattern of respondent’s offending conduct and behavior. We cannot rely on respondent’s representations that he will exercise restraint while these proceedings are pending.

Contrary to respondent’s assertion, there are many ongoing legal matters all over the United States that arise from the narrative of a stolen election. Respondent himself points to an ongoing audit of the 2020 ballots presently occurring in Maricopa County, Arizona (Arizona Public Integrity Alliance v Fontes, 250 Ariz 58, 475 P3d 303 [2020]). Another audit of the 2020 ballots has just been authorized in Fulton County, Georgia by Chief Judge Brian Amero of the Henry County Superior Court (see Julia Harte, Judge allows self-described anti-fraud group to review Georgia ballots [May 21, 2021], https://www.reuters.com/business/legal/ ... oupreview- georgia-ballots-2021-05-21/ [last accessed June 1, 2021]). The Federal government and many state legislators are actively engaged in enacting competing laws concerning voting in this country (see e.g. The John Lewis Voting Rights Advancement Act [S4263, 116th Cong. [2019-2020]; The Voting Rights Advancement Act [HR 4, 116th Cong. [2019-2020]; The Voting Rights Advancement Act of 2019 [S561, 116th Cong. [2019]; For the People Act of 2021 [HR 1, SR 1, 117th Cong. [2021]; Iowa SF 413 [signed by the Governor of Iowa on March 8, 2021]; Georgia SB 202 [passed by the Georgia House and Senate on March 25, 2021]; Florida SB 90 [signed by the Governor of Florida on May 6, 2021], Texas S.B.7 12). Many of the state laws are facing serious court challenges (see e.g. League of United Latin American Citizens of Iowa v Pate, ---F Supp 3d---, CVCV-061476 [Dist. Ct., Polk County Iowa]; New Georgia Project v Raffensperger 484 F Supp 3d 1265 [ND Ga 2020], Georgia NAACP v Raffensperger, --- F Supp 3d ---, No. 1:2021-CV-01259 [ND Ga 2021], AME Church v Kemp, ---F Supp 3d - --, No. 1:2021-CV-01284 [ND Ga 2021], Asian Americans Advancing Justice -Atlanta v Raffensperger, ---F Supp 3d ---, No. 1:2021-CV-01333 [ND Ga 2021], VoteAmerica v Raffensperger, ---F Supp 3d ---, No. 1:2021-CV-01390 [ND Ga 2021], Concerned Black Clergy v Raffensperger, ---F Supp 3d---, No. 1:2021-CV-01728 [ND Ga 2021], Coalition For Good Governance v Raffensperger, ---F Supp 3d---, No. 1:20-CV-01677 [ND Ga 2020], Florida Rising v Lee, ---F Supp 3d---, No. 4:21-CV-00201 [ND Fla 2021]).

The risk that respondent will continue to engage in future misconduct while this disciplinary proceeding is pending is further borne out by his past, persistent and pervasive dissemination of these false statements in the media. This is not a situation where the uncontroverted misconduct consisted of only a few isolated incidents. Rather, each of the false statements identified and analyzed herein were made multiple times on multiple platforms, reaching countless members of the public. They continued after this motion was brought, and despite respondent facing imminent suspension from the practice of law.

The seriousness of respondent’s uncontroverted misconduct cannot be overstated. This country is being torn apart by continued attacks on the legitimacy of the 2020 election and of our current president, Joseph R. Biden.13 The hallmark of our democracy is predicated on free and fair elections. False statements intended to foment a loss of confidence in our elections and resulting loss of confidence in government generally damage the proper functioning of a free society. When those false statements are made by an attorney, it also erodes the public’s confidence in the integrity of attorneys admitted to our bar and damages the profession’s role as a crucial source of reliable information (Matter of Nearing, 16 AD2d at 516). It tarnishes the reputation of the entire legal profession and its mandate to act as a trusted and essential part of the machinery of justice (Ohralik v Ohio State Bar Assn, 436 US at 447). Where, as here, the false statements are being made by respondent, acting with the authority of being an attorney, and using his large megaphone, the harm is magnified. One only has to look at the ongoing present public discord over the 2020 election, which erupted into violence, insurrection and death on January 6, 2021 at the U.S. Capitol, to understand the extent of the damage that can be done when the public is misled by false information about the elections. The AGC contends that respondent’s misconduct directly inflamed tensions that bubbled over into the events of January 6, 2021 in this nation’s Capitol. Respondent’s response is that no causal nexus can be shown between his conduct and those events. We need not decide any issue of “causal nexus” to understand that the falsehoods themselves cause harm.14 This event only emphasizes the larger point that the broad dissemination of false statements, casting doubt on the legitimacy of thousands of validly cast votes, is corrosive to the public’s trust in our most important democratic institutions.

Before Judge Brann in the Boockvar case, respondent himself stated: “I don’t know what’s more serious than being denied your right to vote in a democracy.” We agree. It is the very reason why espousing false factual information to large segments of the public as a means of discrediting the rights of legitimate voters is so immediately harmful to it and warrants interim suspension from the practice of law.

Accordingly, the AGC’s motion should be granted and respondent is suspended from the practice of law in the State of New York, effective immediately, and until further order of this Court.

All concur.

It is Ordered that the motion is granted and respondent is suspended from the practice of law in the State of New York pursuant to Judiciary Law § 90(2) and 22 NYCRR 1240.9(a) (5), effective the date hereof, until such time as disciplinary matters pending before the Committee have been concluded, and until further order of this Court, and

It is further Ordered that respondent is commanded to desist and refrain from the practice of law in any form, either as principal or agent, clerk or employee of another; that respondent is forbidden to appear as an attorney or counselor-at-law before any court, judge, justice, board or commission or other public authority; that respondent is forbidden to give another an opinion as to the law or its application or advice in relation thereto, all effective the date hereof, until such time as disciplinary matters pending before the Committee have been concluded and until further order of this Court, and

It is further Ordered that respondent is directed to fully comply with the provisions of the Court's rules governing the conduct of disbarred or suspended attorneys (see 22 NYCRR 1240.15), which are made a part hereof, and

It is further Ordered that, within 20 days of the date of service of this decision, respondent may submit a request, in writing, to this Court for a post suspension hearing (see 22 NYCRR 1240.9[c]).

Entered: June 24, 2021

[Signed]
Susanna Molina Rojas
Clerk of the Court

_______________

Notes:

1 22 NYCRR 1240.9(a) states in pertinent part: “A respondent may be suspended from practice on an interim basis during the pendency of an investigation or proceeding on application or motion of a Committee…..upon a finding by the Court that the respondent has engaged in conduct immediately threatening the public interest. Such a finding may be based upon . . . (5) other uncontroverted evidence of professional misconduct.”

2 Giuliani affidavit ¶6 “. . . Petitioner’s allegations regarding statements that I made, violates my First Amendment right of free speech . . . " (see also Answer ¶¶ 25-26).

3 Notably, at least one Federal court has recently determined attorney efforts to undermine a legitimate presidential election warranted the attorney's referral to the grievance committee (Wisconsin Voters Alliance v Pence, 2021 WL 23298, *2, 2021 US Dist LEXIS 127, *4-6 [DDC Jan. 4, 2021 Civil Action No. 20-3791 (JEB)], and 2021 WL 6359, *1, 2021 US Dist LEXIS 35064, *6 [DDC Feb. 19, 2021]).

4 In opposition to this motion, respondent refers to affidavits he has not provided (Giuliani affidavit ¶¶11, 50, 61, 62, 66). He also relies on a “confidential informant” (Giuliani affidavit ¶82). We do not understand, nor does respondent explain why, as a private attorney seemingly unconnected to law enforcement he would have access to a “confidential informant” that we cannot also have access to. At yet another point respondent claims he relies on a Trump attorney who chooses not to be identified (Giuliani affidavit ¶43). Respondent also refers to hundreds of witnesses, experts, and investigative reports, none of which have been provided or identified (Giuliani affidavit ¶14) and an Excel spreadsheet, also not provided, purportedly listing the names of thousands of deceased voters who allegedly cast ballots in Michigan (Giuliani affidavit ¶51).

5 These numbers roughly correlate to mail-in ballots received, less the false amount of mail-in ballots respondent claims were sent out, as adjusted for the overall percentage of mail-in votes that were cast for Biden.

6 We accept for purposes of this proceeding respondent’s characterization of the withdrawn claim as a fraud claim. It is not clear to us that this characterization is correct, but it does not affect our analysis.

7 Coincidently, while the parties were in court that day, they received word that the state claims regarding canvassing had been decided against the plaintiff in the Supreme Court of the State of Pennsylvania (In re Canvassing Observation, 241 A3d 339 [Pa 2020], cert denied sub nom Donald J. Trump for President, Inc. v Degraffenreid, ---US---, 141 SCt 1451 [2021]). The plaintiff’s subsequent efforts to reinstate the voluntarily withdrawn federal claim concerning the canvassers was also denied in Boockvar.

8 The blogger's representation regarding what the public record revealed was inaccurate.

9 In this motion, because the AGC only relies on the audit referred to in the Georgia Secretary of State’s January 6, 2021 letter to Congress, we only consider this one audit. Georgia’s election results were, however, actually audited three times, and no evidence of widespread fraud was discovered (Daniel Funke, Fact check: No evidence of fraud in Georgia election results (June 1, 2021), https://www.usatoday.com/story/news/fac ... rgiaaudit- hasnt-found-30-000-fake-ballots/5253184001/ [last accessed June 12, 2021]).

10 On December 1, 2020, former Attorney General William Barr stated that the Department of Justice had uncovered nothing indicating massive election fraud and that there was nothing showing that the outcome of the election would be different.

11 The full videos are found at https://securevotega.com/factcheck/. The snippets shown during respondent’s show, while once available on YouTube, have been taken down for violating their community standards (https://www.youtube.com/watch?v=PchtaUsRH70 [last accessed June 2, 2021])


12 As of May 28, 2021, the Brennan Center for Justice reports that more than 14 states have enacted new laws this year that will restrict voting rights (Voting Laws Roundup: May 2021, BrennanCenter.org (May 28, 2021), https://www.brennancenter.org/ourwork/ research-reports/voting-laws-roundup-May-2021 [last accessed June 2, 2021]).

13 E.g. A May 17-19 national poll conducted by Reuters/Ipsos reported that while only 3% of Democrats believe that Trump won the 2020 election, 53% of Republicans so believe (Reuters, 53% of Republicans view Trump as true U.S. president, https://www.reuters.com/world/us/53-rep ... tersipsos- 2021-05-24/ [last accessed June 2, 2021])

14 Legal causation is an issue in criminal and civil actions that have arisen in the aftermath of the January 6, 2021 Capitol riots. We understand that respondent is a defendant in at least one civil action seeking to hold him responsible for the January 6, 2021 riots (Thompson v Trump, Giuliani, ---F Supp 3d---, 1:21-cv-00400, US District Court, District of Columbia [Washington], January 25, 2021).
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