The National  Memo Logo

Smart. Sharp. Funny. Fearless.

Monday, December 09, 2019 {{ new Date().getDay() }}

Law Enforcement

Fencing in front of the Capitol.

Reprinted with permission from Daily Kos

The security fencing around the U.S. Capitol building has gone back up, and members of Congress have sounded off about their fears of potential violence, all in anticipation of Saturday's far-right "Justice for J6" protest in Washington, D.C., ostensibly a march to support the several hundred people currently facing federal prosecution for their roles in the insurrection.

However, the likelihood of any kind of significant outburst by Donald Trump's most ardent followers is so low this time around that residents have relatively little to fear. In contrast to January 6, there has been no promotion of the protest by Trump or his circle, and no congressional Republicans appear likely to attend—so consequently, there is very little buzz about it in right-wing circles. The Department of Homeland Security (DHS) expects only 700 or so people to attend, in contrast to the tens of thousands who showed up the first week of January.

Nonetheless, D.C.'s Metropolitan Police Department will activate its entire force for that day, and specialized riot officers have been placed on standby. MPD officers will have "an increased presence around the city where demonstrations will be taking place and will be prepared to make street closures for public safety," according to a spokesperson.

Capitol Police said Monday they had issued an emergency declaration that will go into effect at the start of the rally, one that allows Capitol Police leaders to deputize outside law enforcement officers. The agency also has obtained additional equipment and created an incident response plan.

The event creating all this upheaval is the brainchild of a former Trump campaign official named Matt Braynard, who has declared that 700 or so people charged in the January 6 insurrection are "political prisoners."

Braynard announced the event on the podcast of former Trump adviser Steve Bannon, saying: "We're going back to the Capitol, right where it started. And it's going to be huge … We're going to push back on the phony narrative that there was an insurrection."

His organization, Look Ahead America, is discouraging would-be rallygoers from signs related to the election or any candidate, or wearing "MAGA gear."

"This rally is about protesting the treatment of these political prisoners. That has nothing to do with any candidate, nothing to do with the election," Braynard said. "It's not a pro-Trump rally, an anti-Trump rally. It's not a pro or anti-Biden rally. It's not political in that way and we don't anything to distract from that."

DHS spokesperson Melissa Smislova told NBC News that the agency has learned via social media that in addition to the Washington rally, similar protests are planned in other cities across the country. She said that in comparison to the "tens of thousands" who came out for the January 6 "Stop the Steal" event, DHS expects a much smaller turnout this weekend. She said the agency has been tracking publicly available information on protesters, U.S. Park Police permit applications for large gatherings, and hotel reservations across the U.S. in order to gauge the response.

Some members of Congress have spoken out. "Given the violent tendencies of the right-wing extremists who plan to attend, it is obvious that this rally poses a threat to the Capitol, those who work here, and the law enforcement officers charged with protecting our democracy," Democrats Tim Ryan of Ohio and Rosa DeLaura said in a joint statement. "We are pleased that the Capitol Police, in coordination with other law enforcement agencies, appear to have developed a clear plan—based on careful intelligence analysis—to maintain order and protect public safety."

House Speaker Nancy Pelosi was even more scathing: "And now these people are coming back to praise the people who were out to kill, out to kill members of Congress, successfully causing the deaths—'successfully' is not the word, but that's the word, because it's what they set out to do—of our law enforcement," Pelosi told reporters Wednesday morning.

When a reporter asked Republican House Minority Leader Kevin McCarthy whether any GOP members would be making speeches on Saturday, as they did at the January 6 rallies, he responded: "I don't think anyone is."

One of the chief lingering concerns among intelligence experts and law enforcement officials is the fact that the person who placed two pipe bombs in the vicinity of the Capitol the night of January 5 has never been identified. Most leads have so far some up dry, and investigators working on the case reportedly have been unable to ascertain whether the suspect is a man or a woman.

Last week, the FBI released grainy surveillance video of the person they believe left the bombs in the hope of attracting new leads and information. The agency says the person wore a backpack over a gray hooded sweatshirt and had a face mask, as well as distinctive Nike Air Max Speed Turf sneakers in yellow, black, and gray.

The bombs—each about 1 foot long with end caps and wiring that appeared to be attached to a timer—were placed outside the headquarters of the Republican and Democratic national committees between 7:30 PM and 8:30 PM on the night before the insurrection. They were not located by law enforcement until the next day, at about the same time the Capitol came under siege by the mob.

The September 18 event could attract a lone-wolf actor along similar lines. But it's also certain that it will not create the kind of mob scene that engendered the January violence. Extremism analyst Mike Rothschild, who monitors far-right groups' activities online, notes that this time around, "the chatter isn't there. Influencers who egged on the MAGA faithful then are waving them off now. People will show up, and it bears watching - but this isn't going to be Insurrection 2.0."

As terrorism analyst Jared Holt observes, the rhetoric around the event is largely hyperbolic, and it is expected to draw neither a large nor a violent crowd capable of another Capitol siege. However, it could be significant in the way that "it lays patchwork or groundwork for those kinds of events to happen in the future in D.C., or maybe in state capitols going forward."

One of the ways it can set a foundation is by providing openings for similar forms of insurrectionist violence elsewhere, such as at state Capitol buildings, as DHS' assessment warned. Clint Watts, a former Joint Terrorism Task Force member, told MSNBC that he was far more concerned about the spread of these events to state-level venues than with the Sept. 18 rally itself.

"There will be, I'm sure, some who show up there, but I don't think it will be a Jan. 6 moment. What I'm much more worried about, though, is state Capitols and local municipal buildings," he said.

"They're much less defended, and in some discussion spaces you hear—it may be just a small number of people, but you hear people talking about going to rallies closer to home, in up to 10 different states. Those could be particularly troubling for those with smaller law enforcement, and don't have the resources like we have at the nation's capital."

Start your day with National Memo Newsletter

Know first.

The opinions that matter. Delivered to your inbox every morning

Proud Boys during the January 6, 2021 Capitol insurrection.

Reprinted with permission from Daily Kos

The federal government's prosecution of the January 6 Capitol insurrectionists continues to roll along with hardly any change in direction or pace: Participants in the attack continue to be arrested as investigators accumulate more evidence, while judges continue to keep major players, particularly members of the Proud Boys and Oath Keepers, under lock and key.

However, one bright red flag was raised by Marcy Wheeler of Emptywheel—who has assiduously tracked and reported on the imposingly complex prosecutions from January 6—this week in the conspiracy case being assembled by prosecutors against the Proud Boys: It now emerges that one of the lead prosecutors in that case is Jocelyn Ballantine, the same DOJ prosecutor who engaged in dubious behavior around former Trump official Michael Flynn's prosecution, such as submitting altered documents. Could a botch job be around the corner?

Ballantine, as Wheeler details, engaged in a pattern of misconduct in handling the Flynn case that could easily result in a federal judge dismissing the case. And as the Proud Boys' attorneys made clear in their filings this week demanding that key players in the insurrection, including leaders Joe Biggs and Ethan Nordean, be granted pretrial release, their primary strategy appears to be aimed at obtaining exactly that kind of summary dismissal of the charges.

Wheeler points to three specific acts by Ballantine in the Flynn matter that raise concerns:

  • On Sept. 23, she provided three documents that were altered to Sidney Powell, one of which Trump used six days later in a packaged debate attack on Joe Biden.
  • On Sept. 24, she submitted an FBI interview report that redacted information—references to Brandon Van Grack—that was material to the proceedings before Judge Emmet Sullivan.
  • On Oct. 26, she claimed that lawyers for Peter Strzok and Andrew McCabe had checked their clients' notes to confirm there were no other alterations to documents submitted to the docket; both lawyers refused to review the documents.

Having a prosecutor on the Proud Boys prosecution team (let alone overseeing it) with a dubious conduct history poses serious risks for their success, and indeed for the broader prosecution: "Given Ballantine's past actions, it risks sabotaging the entire January 6 investigation," Wheeler observes.

The possibility of a bungled federal prosecution in the Proud Boys case raises the specter of a similar botch job in a major case involving right-wing extremists: Namely in 2018, when prosecutorial misconduct involving evidence sharing forced the federal judge overseeing the case against rancher Cliven Bundy for his 2014 armed standoff with federal authorities to order all charges dismissed—one of several cases of misconduct involving that U.S. Attorney's office. That dismissal, with prejudice, was upheld on appeal.

The attorneys for Biggs and Nordean, meanwhile, made a fresh appeal for their clients' pretrial release to home confinement, claiming the men posed neither a serious flight risk nor any threat to public safety in the interim. The attorneys presented clips from a video shot on January 6 in Washington, D..C., by fellow Proud Boys member Eddie Block, claiming they demonstrated that the group actually intended to hold their "big event" afterward at The Ellipse, not at the Capitol.

"There's no conspiracy," defense attorney John Hull said. "… So, [with] no conspiracy, about 80% of the whole case falls apart."

Prosecutors noted that Block's statements in the clips are contravened by the men's demonstrated actions that day, which included Nordean and Biggs tearing down a police barrier. They also reminded the judge of encrypted texts the men shared that day preparing for insurrection on January 6.

Prosecutors warned that the defendants' release would mean "there's no way to police" any other potential planning the men might participate in with other Proud Boys members: "That's a significant, prospective danger to the community," Assistant U.S. Attorney Jason McCullough said.

In other January 6-related developments:

  • Accountability arrived for the Capitol Police officers who behaved as congenial hosts to the insurrectionists on January 6. The agency announced it had taken disciplinary action against six officers following an internal investigation.

There were 38 internal investigations involving officer behavior on January 6, with 26 different officers identified, Capitol Police reported. There was no wrongdoing found in 20 of the cases.

Three of the six officers were disciplined for "conduct unbecoming;" another for improper remarks; one for improper dissemination of information; and one for "failure to comply with directives."

"The six sustained cases should not diminish the heroic efforts of the United States Capitol Police officers. On January 6, the bravery and courage exhibited by the vast majority of our employees was inspiring," the release said.

  • FBI agents arrested a woman from Allentown, Pennsylvania, who had filled her social-media pages with QAnon conspiracy theories and demands for an "Army of Patriots" to seize control of the government, prior to invading the Capitol with other right-wing extremists on January 6.

Prosecutors detailed Kelly O'Brien's prolific rants on social media leading up to January 6. One dated November 26, 2020, asserted: "We do not riot. We fight. We are an Army of Patriots. You will know us when you see us. There will be no ambiguity. Prepare yourself."

On Dec. 19, 2020, O'Brien posted: "WE ARE IN A BATTLE between GOOD and evil. Make no mistake about that. Elders are cheering us on and believe that WE ARE GOING TO BE THE GREATEST GENERATION in their lifetime. And they lived through WWII. Are you going to fight or are you weak. Let us know now. WE NEED PATRIOTS! WE NEED FREEDOM FIGHTERS! Now!"

The day after Christmas, another used posted: "You can vote your way into socialism but you have to shoot your way out of it!" O'Brien responded: "We might have to."

After the insurrection, on January 8, amid a discussion of Trump's refusal to concede to Joe Biden, O'Brien asserted that "Everything is happening according to Q plan. So scared."

  • A former FBI special agent remarked on MSNBC that the insurrectionists' targets were chosen not by movement leaders or members, but rather by elected politicians like Donald Trump and Missouri Republican Sen. Josh Hawley.

"It's our political leaders that are doing this more than domestic extremists," Clint Watts, a Joint Terrorism Task Force veteran, said. "What you see right there President Trump told them they were going to the Capitol that day. They didn't pick the Capitol, he said it, his organizers they promoted it, his fellow congressmen in the GOP, they promoted it.

"It was Josh Hawley out there fist-bumping the crowd, right? Before it went in," he added. "That's the thing we look for to see, hey, where are they tipping to. For the most part, the groups aren't picking the targets. It's the elected leaders."