Lawfare Daily: The Justice Department Throws Out the Proud Boys and Oath Keeper Cases

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“I think all of those connections should stand.”

Right, every single one of the January six convictions should stand, because every single one of them went through a fair due process in constitutional process of trial-by-jury or plea process with discovery.

It's the law-fair podcast. I'm Benjamin Whitt is editor-in-chief of law-fair with law-fair senior editors, Roger Parloff, and Michael Feinberg. Law-fair public service fellow LT Edwards

and James Pierce of the Washington Litigation Group. The sort of people who really would have pushed back about this have already been fired or resigned for pushing back against other things. There is nobody at an executive level

who was very involved in these cases who still remains. And in terms of the larger, more prominent, J6 cases, a lot of those people are gone at the line level two. Today, we're talking about the justice department's decision

to drop the cases against both keepers and proud boys, which had been on appeal. These are the highest value, most egregious January six cases, the ones that involved seditious conspiracy. This is the final step in making the history

of January six into a legal nullity. So guys, I want to start with just describing who we have on the show today, vis-a-vis these questions.

“So most listeners will remember that Roger Parloff”

sat through both of these cases, which were quite extended in district court and live tweeted them for law-fair. But Roger, start by telling us a little bit about how you engage the oath keepers

and proud boys' cases. And then in order, Mike, LT and James, talk about your involvement with these cases slash investigations. - Yeah, it was exactly that. I sat through all of them and I live tweeted

and you can find those somewhere on the internet the site then known as Twitter. And I think we tried to, we did try to put some of those on law-fair some take a long time to load.

But I think the roughly speaking, I think the oath keepers was around 28 days

“of trial, Troy, does that sound right in there?”

- For trial one. - Oh, trial one.

Yes, that's right, I went to the first trial,

which is four top seditious conspiracy people that was Elmer Stewart Rhodes, Kelly Meg's Jessica Watkins actually is five, Ken Harrelson and Tom Caldwell. And then I went to the seditious conspiracy proud boys' trial, which lasted longer

was around four months and that top defendant was in Riketario, then Joe Biggs, Zach Riel, and Pizzola, Dominic Pizzola, am I leaving somebody out? I can't, I think, oh, Ethan Nordine,

you know, yeah, who is really the lead defendant. So I saw a little thing. - So Mike, you know, the audience knows you for many things but these cases are not among them. You were these, they consumed quite a bit of your life

for a little while. - Not these cases specifically, but the general universe of Tom Ulton investigation and prosecution that consumed the FBI in the days, weeks,

and ultimately years after the events of January 6th,

but my first interaction with these two groups was considerably earlier than the public became aware of them. I began my FBI career in Los Angeles, which everybody thinks of as a very liberal left-leaning city but what a lot of people don't realize

is that when you get to the counties immediately, south of Los Angeles,

which throughout US history has it times tended toward

the conspiratorial.

“And this is famously, they call it the orange curtain”

when you go down to Orange County and this was a very active area for like the John Birch Society, during the early years. They cold war later, some white nationalist motorcycle gangs. And in the early 2000s, I started hearing about this group

called The Oath Keepers, which unlike a lot of other groups that were in that general area, they were pretty overt about who they were and what they believed in and who their membership was. And this struck me as a bit curious,

so I talked to one of our counterterrorism analysts in the office just to sort of get the lay of the land and the thinking then, as she explained to me, was that Oath Keepers are not a domestic terrorist organization, but they are very much a gateway drug into groups that are.

Now, a lot changed over the ensuing decade, and we will get to that.

But like I said, my first interaction was just,

they were one group among any, that was sort of adjacent to like the constitutional sheriff's group and the sovereign citizen movements, and just general individual sovereignty right wing ideologues. But there was nothing at the time

that would indicate they would do something like, we'll get into this establish a quick reaction for us to store in the capital. And it was very similar with the proud boys in that I first became aware of them,

not through anything that happened publicly, but because Gavin McGinnis, the original founder, moved to the same block as a family member of mine in a very posh suburb of New York. And this led to questions from the family member,

me doing research once again. And once again, they were not viewed as a particularly threatening group initially. I mean, Gavin McGinnis was at that point sort of a media boss. He was running vice-news, I believe.

And then he left it and found the proud boys. And once again, they sort of metastasized into something far more malevolent than they initially began.

The first time I'd say that FBI really became aware of them

was when it was discovered that they were providing security for Roger Stone during the various phases of Mueller investigation. And there would be a whole controversy about the fact that a SWAT team took part in the stone arrest.

That was entirely because he was known to have armed proud boys protecting him. Fast forward, a little bit January six happens and as we clean up the literal and figurative detritus of the riot slash insurrection,

and we start peeling things back. It appears that these two groups are very much involved in a way that I personally would not have predicted from my initial introduction to them. - And what was your involvement in the post-January sixth

“mess of investigations, including this one, these two?”

- I'm not gonna talk about my specific involvement, but I will say generally, beginning probably within a half hour of the breach of the capital walls, the entire FBI Washington field office was on alert.

I remember seeing the news alert. It was still the pandemic. I was actually at home that day and seeing the news alert on the alarm often my head obvious.

And like, you know, I'm probably gonna get called in, so I'm just gonna gather all my tactical equipment, change into something that I would feel more comfortable carrying a long gun and wearing body armor in and head into the office.

And sure enough, as I was pulling into the garage of the Washington field office, we got the alert on our cell phones for every single agent to immediately get to the office. And without asking you how yours,

you were specifically used over the next several months. Let me just ask you this,

“how long was it before your life returned to normal?”

- Probably about six months. - Okay. - And it returned to normal in the Washington field office,

I got a promotion that took me to the Norfolk field office,

which by virtue of being in Southern Virginia, which has a very active right wing militia presence, and being within driving distance of Washington DC,

“I think we had the single highest concentration”

of January 6th cases of any field office, other than Washington DC, and maybe Philadelphia simply because they had so much of central Pennsylvania that was drawing people over the same reason

as Southern Virginia. This was all the FBI did for six months, and then it was a huge proportion of what the FBI did for months and years after. It was in every sense of the word,

the largest investigation the FBI has ever conducted. And the two that we're talking about today are different in both degree and type from the other cases, but I will hold off on explaining why, until we get a little bit later into things.

- All right, LT, again, the audience knows you for many things, but less this than some other things, this was a big part of your life as well. - Yes, I was one of the five prosecutors on the Oathkeeper's team, although as with any team,

there were a ton of prosecutors around us that weren't in court that led the investigation through to trial, and that investigation started, like Mike said, pretty much immediately after January 6th,

they're on the day of, and I ended up being one of the five that carried the investigation through and into the four trials that the case culminated in, with the number of defendants that had to be split across,

about four trials, three jury trials and one bench trial.

“- So how much time did you and Roger spend in court together?”

- It's remarkable to be in the podcast with him and being law fair with him now, because I think we spent a lot of time together

and never actually spoke to one another directly.

- Right, it's a funny, it's a funny relationship that you have with people you sit in court with for very long periods of time and make a point of not interacting with. - But I think I did a number of silent nods

of walking off because we knew that Roger was gonna cover everything that happened the day, what we wrote that day, the mistakes we made, and so we would often walk into court and be like, "Oh, Roger's here, he's gonna catch you

"if we make another mistake today out loud "or if we write something wrong or have to fix it." - James, you were not in court either of the proud boys or oathkeepers case, I don't think, but you were a, I don't know, behind the scenes,

“Eminence Grease, what was your role in these cases?”

- So actually, what was in court on the proud boys case, but the description is generally right. So I came over to the DC U.S. Attorney's Office from Maine Justice on January 8th, 2021 that put my hand up to volunteer

and like many, many of the folks who wanted to volunteer

in the response I basically said,

initially look, I'll do anything that would be helpful and I had experiences both at a trial level, prosecutor and an appellate attorney and the initial thing that I was asked to do was what many folks were doing,

it was just here a bunch of cases, go figure things out. And I did that for a little while and then the proverbial building the airplane as you fly it, we sort of figured out that look, there's a need to develop a kind of architecture

of charges and there's also a need to try to figure out the extent to which I think is Mike's comments indicated that there was involvement from more organized groups, militia, extremist groups. And a role that I started to play was eventually

took on the title of Senior Appellate Council and that was, again, building an architecture of charges, famously or perhaps infamously that involved the 1512 C2 congressional obstruction that made its way all the way up to the Supreme Court.

But relevant for this conversation, I worked on the seditious conspiracy charges and kind of shepherding that through developing the legal theory in both the oath keeper and proud boy cases writing a lot of the briefing.

I won't speak in detail about this, but doing a lot of the discussion within the department about whether we could bring these cases and on what legal theory and how we could defend them. I argued that in front of Judge Kelly

and certainly worked with LTE and then the members handling the oath keeper's team on that as well.

“But then, yeah, when the cases went to trial,”

I actually went and attended some of the oathkeepers,

the first trial of those and then ended up eventually moving

over to the special council's office and so kind of lost. Any formal touch with the teams, but certainly had been closely involved including on these two sets of the oath keeper and proud boy cases.

- All right, so let's do some basic history here. These cases get tried. They result in convictions, including on the seditious conspiracy cases. The charges, they produce long sentences.

Trump comes into office. Pardon's everybody, but does not pardon this group of people. So Roger, give us like the history of these cases from the date of Trump's inauguration to today. How are these, as we might say,

and on Passover, how are these cases different from all other January, six cases, and what happened in them this week? - Yeah, so on inauguration day, we typically, we say he pardoned everybody.

He didn't really literally pardon everybody. He did give clemency to basically all 1,583 people that had been charged to that point. He gave different forms of clemency. Three buckets.

And the first bucket was who we're talking about. He named 14 people and said these people I'm commuting their sentences. And they were all people charged with seditious conspiracy. They weren't all convicted of it.

10 were convicted for or not. And so they were left with a conviction and the stain of a conviction and the collateral consequence is if they were in prison as all but one were, they walked at that point.

“I think their fines and restitution were lifted.”

So it was the stain. But that is enough to appeal. And 12 of them did. Two others dropped out for other reasons. One eventually was given pardon that was Tom Coldwell

and a co-operator Jeremy Bertino, his case was dismissed.

He had actually never been sentenced.

So his sentence was commuted before he was sentenced. So there were 12 left and they were in three cases. It was taking a long time to appeal. And so they had not, and the first briefs were going to be due to Friday this 17th, so tomorrow.

And then on Tuesday, we got these motions to dismiss the three cases. There was the road's group. There was a guy named Robert Manuda, Manuda, who was the second Oathkeeper group.

And Nordine, who was the proud boys group. Tario was given pardon. And I won, and you know last weekend, I was going over these cases.

And I was saying, this is amazing that these are going forward

in a legitimate way. I mean, all of the attorneys on them are career people.

“They're, I think, Jocelyn Ballantine below”

and three people above. I mean, Piro is on the briefs too. But career people otherwise. So I was puzzled. And then on Tuesday, there was this motion.

The form of it is, it's a motion to vacate conviction. So that it can be remanded for dismissal. There's a DC circuit case that says, I guess you can't go directly to what's called a motion to dismiss 48A.

It has to first be the conviction, has to be overturned. You vacate the conviction. You can't dismiss a conviction. You can only dismiss a pending case. So you vacate the conviction.

It gets remanded for presumably a new trial with a direction to dismiss. I think so. I think the theory was also that 48A, you dismiss a prosecution.

And the prosecution is not still going

That's how I remember that court ruling.

So that's what happened. And that's why we're here. So this was 12 people charged with seditious conspiracy. Most of them convicted, not all of them. And that's why we're here.

Oh, and just to be clear, 1100 were pardoned. And then 470 people that had been charged, but not yet convicted, the AUSAs were instructed to move to dismiss those under 48A and they were. So LT, this is a totally unfair question

to ask you as a prosecutor in the case. But give me your best analyst answer to it anyway.

Is there any argument that given that we've pardoned

when dropped cases against everybody else,

“that why should these guys alone retain convictions?”

We've publicly said, rightly or wrongly, parentheses, wrongly, that this whole state of prosecutions was a grave injustice and a travesty on American justice. So given that that is the public position of the administration, is there any particular reason

why these groups of subjects uniquely should continue to face prosecution? - This is the most lawyer answer ever. I think that depends on who's lens we're filtering the question through.

Because if it's the administrations, this is going to be a painful thing to say aloud. There's a logical core to it, which is if they really believe January 6th was nothing but a lovely tour of hugs, then how possibly can there be convictions that stand?

This seems to be in line with the insight that there was nothing wrong done and so everyone else got pardoned. This was a remaining batch that ought to be pardoned.

“That's the, I think the prism that the administration,”

if they're trying to be logical, would say, from my point of view, it's also hard to answer because I think all of those convictions should stand. Right, every single one of the January 6th convictions should stand because every single one of them went through

a fair due process and constitutional process of trial by jury or plea process with discovery. This middle ground question I think you're getting at is merging those two lenses, if assuming there are pardon's should these convictions stand?

Yes, I can't bring myself to say no because I know the process that it went through to get to that. I think to put my lawyer hat on the argument goes, it might hinted at this. These convictions are different and kind, right?

Sedicious conspiracy is a, is a charge rooted deeply in the nation's history and you don't bring it lightly. And if the facts met it in a jury convicted the, the defendants on those kinds of elements that are required under something like seditious conspiracy,

then something seriously wrong happened and those convictions ought to stand to be reminded to the nation of where we ought not go.

“But again, I pause, I think that about all these convictions.”

I don't think that these stand out such that it's appropriate that these other convictions drop. I know that's probably not the, I'm fighting the hypole that as James would tell me, if I were moving this mic. Yeah, so I will play the role of the less polished

and eloquence and more aggressive FBI agent to Troy Edwards is a DOJ attorney. I think there's a very good reason you treat these, this universe of cases different from the average January sixth case.

And it's largely, it's largely a distinction based on the facts of how and why these individuals got

to the capital in the first place.

And I think when you look at that, it leads you to understand what they did was considerably worse. And everything I'm going to say is not to defend any January sixth defendant. I think all of those prosecutions were righteous.

I think in many cases the sentences were too light. And I think we should have even been more aggressive than we were in general. But there is an argument that many of those offenders were not there as part of any organized group

and a speech and rally gets out of hand

“with I would argue prompting from officials in office,”

both from the White House and from Congress. And matters snowball, momentum takes over. They breach the capital, but in a sense, some of them are caught up in a wave. It's not to excuse it.

It's just to say it wasn't necessarily a premeditated act specifically to halt the peaceful transition of power in the United States. With the proud boys and the oathkeepers, we have something very different.

These are groups, like actual-- I don't know if they're corporate entities

but I'm going to use that in a colloquial sense.

These are actual organizations that had a plan scheme in many cases involving weaponry, in many cases that contemplated the possibility of extreme violence to travel to DC and if possible, if needed, interfere with the peaceful transition of power

that has marked our nation since George Washington left office. What they did is very different than your average moron who went to a rally and just followed a crowd. And I think there's something else to mention specifically with respect to the oathkeepers.

Inricatario and the proud boys-- since this is a law fair podcast and not a cavern conversation, I'm going to be a bit nuanced. But this is somebody who has a-- Ontario is somebody who has a history of petty crime,

an extensive history of petty crime, and a real lack of accomplishments in any intellectual or legitimate endeavor. Stuart Rhodes is a little bit different. Any shares an alma mater with Roger Parloff?

Yes. A law school. Yes, Stuart Rhodes was a congressional staffer. I think for Ron Paul. He goes to Yale Law School in the aftermath of 9/11

because he's convinced that civil liberties are being infringed upon by the government.

“I think there's a bit of the horseshoe stuff going on here.”

But like, he goes to law school, and to the best law school in the country for reasons that may public interest lawyers also went to law school. In other words, he has intellectual rigor, a background, accomplishments, opportunities

that make him markedly different from your average January, six to the defendant. And I don't think it is beyond the pale to take that into account when you're determining how he specifically should be treated.

No, no, no, I don't think so. The red captioning is called "Fribo" with Ron Melitz, the owner or the fan of the book,

which is the most important.

Our interactive exhibition is called "Audio Guide" and a classic and the most important part of the whole world of red captioning is called "The red captioning" is called "Nur eine secklinge entfernt". Is there any defense to make of this?

Is there any, you know, if I made you, you know, counsel for an amicus who was gonna defend this decision, what's the best you can do in the way of justifying what Ginny and Piro did this week?

- Yeah, I mean, I'll start with the caveat that my views on this are pretty similar to LTs and to my ex. But, and I'll start with a sort of a cynical observation, which I don't know if we've said this out loud,

“but frankly, I think it, it aligns with something Roger said,”

was it sort of a surprise it took this long for this to happen. In some ways, you know, certainly this group was not in the initial act of pardon they were commuted as we've already mentioned. And so there was some sense that they were different,

but it was very hard to imagine that we would actually ever move forward with continued prosecution in one sense or another. I mean, look, you know, if I were asked to defend this, you know, I probably would write something and say something similar to what the very short motion did,

a long time government attorney, an appell attorney who I know well and think very highly of, it cloaks the argument in essentially prosecutorial discretion. And if you have already decided as the executive branch has and as the Department of Justice has not to pursue

the prosecutions against every single other individual who has been engaged or was engaged in the events of January 6th, it's harder than to draw a distinction for these particular individuals.

“I mean, I think the distinction that one can draw is precisely the one that”

that Mike just spelled out. Not to mention, you could draw the distinction that the president specifically pardoned everybody else and directed their prosecutions to be dropped and singled out these people to treat differently,

gave them incredible windfall of a commutation

with a time served for often very long sentences, but did not pardon them and in fact the president's own action treated them differently. Sure, I mean, you know, I think that's exactly right. I mean, it's interesting, I suppose that the reasoning there was

something along the lines of what Mike laid out or perhaps more cynically again, it was just political to say, look, we just don't want to take the hit of saying that we are going to go ahead and actually pardon individuals who have been convicted of conspiring to use force to stop the execution of laws,

the transition of power that, as Mike eloquently said,

is as existed since the first president.

“So, you know, I think, frankly, the only way to really go about justifying it”

is just to fall back on on prosecutorial discretion. And if anything, the idea that that discretion and the whole exercise of investigation and prosecution is a core executive branch power has been supercharged under the Trump United States case where it was identified as among the president's

conclusive and preclusive powers. And so, it is interesting, right? I mean, in the first Trump administration, we certainly saw after the pardon of Flynn, you saw Judge Sullivan a point. I think it was John Gleason, you know, former Judge Gleason to come in

as an amicus to sort of argue against whether this could happen. You could see Judge Mehta and Judge Kelly taking a similar path here. But, you know, A, we know what happened with Judge Sullivan.

“And B, you know, as I just mentioned, I think the Supreme Court's”

decision in Trump the United States makes it awfully hard to imagine that you're going to successfully come in and argue that this act of prosecutorial discretion as absolutely wrong headed

as I and it sounds like basically the rest of us think it is

that you're going to have a court undo it or, you know, frankly, even if you were to have Judge Kelly or Judge Mehta do it, that you would have an appellate court let alone the Supreme Court think that there is in fact the discretion or power of courts to undo what what the executive branch has decided to do here.

Right, can I just be cheeky and say the best argument that you can make for this as an appellate lawyer is because he can. Yeah, I think that's I think that's basically right and because he can and doesn't have to tell you why. Right, Roger.

Yeah, um, when I wrote a piece about the first wave of clemencies, uh, the piece I think came out in March, I mean a year ago March, the name of the piece was even handed in justice. And so that's sort of what we are completing here today. I know that prosecutors and FBI agents do see conspiracy as different and

especially seditious conspiracy. It's a little blurrier to me down as a it's a spectator. Because a lot of the people that were pardoned in the first wave were really scary people who did come there. It wasn't a conspiracy, but they did come there planning to do something.

They came in body armor, you know, they came with tasers, they came with spray, pepper spray, and some came with guns, you know, like Ryan Samsung, you know, the guy who topples the first barrier onto a female police officer who gets a concussion that it's probably still, you know, disrupting her life today.

And, you know, nine priors, mostly for assault of behavior against women.

He's on parole for two felonies on January 6th, you know, these are really dangerous people.

“I mean, David Dempsey, I think he, he got 20 years, the government was asking for 20”

against Ryan Samsung, and he, that was like the middle of his guidelines, the guy that tased Rodriguez, the guy that tased for known twice. So you think there's more of a continuum between us? I think there's a continuum in that Mike described. Yeah, so I'd like to put back against that a little bit.

What the nation saw on January 6th in terms of dress demeanor and weaponry, was certainly shocking to somebody who is not familiar with the milieu in which these people operate. But to those of us who trapped domestic terrorism and have worked in offices that are not in major metropolitan areas, this is pedestrian. There's an event called Lobby Day in Richmond, Virginia every year, where it is totally normal.

“I think it's app Horace, but it is normal and not on the ordinary.”

In fact, it's inspected that you will get people who are against what the state government is doing, marching up and down the street, totally legally carrying M4s, wearing ballistic vests, and carrying tactical equipment. If you go to rural Michigan, you see the same thing on a regular basis. If you go to Montana, you can see a different variety of it in every county.

And there've been a lot of individual standoffs over the past quite frankly, 50 years with these sort of groups.

It just never entered the conversation of the sort of people who don't follow what's going on in the

militia movement. So if we as agents who investigate domestic terrorism all the time and always have, view those people almost as like sort of on serious cosplayers, it's not to minimize the danger they pose or to excuse anything they did. It's just simply to note that what they did in DC that day is not materially different from what their day-to-day activity is in another locale.

Well, except the part where they storm the capital, and no, no, I'm not referring to their actual action. What I'm talking about is the carrying of extensive weaponry, the wearing of ballistic vests, the perloining of zip ties and chemical agents. Like that, like, seeing that in a protest, like it might be abnormal on the mall. It's not abnormal in most parts of the United States. And that's a sad commentary on where we are as a country, but it is what it is.

“Can I jump in quickly just because so I think what Mike says is right, but I actually tend to think”

that might support what Roger is saying more so in an interesting way, which is that look, I'm going to take a crack at trying to sort of think about the other keepers and the proud boys and the sort of specific roles that they've played on January 6. And then also some of the other defendants who were just pardoned and are not in either of those groups, right? You know, the proud boys as certainly this group group knows, but just to put it on the table,

were the proverbial tip of the spear and were among the first of the ones going in the building.

Dominic Puzzle, you know, breaks the glass on 213. And that is sort of, you know, that there are samsoulas, as Roger already mentioned, but they are, they are right at the front, they are very violent. What they don't have and what distinguishes them from the oath keepers are this development of the quick reaction forces and the bringing of the arms into Virginia and frankly a lot of planning that and and discussion driven by roads,

but picked up by a lot of others as as L.T. knows better than I than I do and that has been established, factually, over that was established, factually, over the course of four trials. Interestingly, the oath keepers and L.T. can fact check me on this were not as violent as many of the individuals who were in the lower West tunnel, individuals who were not convicted as being part of, you know, conspiracy charges, part of working with the oath keepers or the proud boys.

The proud boys were probably more violent on January 6, but to Roger's point a moment ago,

earth keepers battering away at law enforcement, not necessarily bringing weapons that they had,

finding whatever they could find, fire extinguishers, hockey sticks, all of these kinds of things,

“right? And it does, I think, raise this question of like, is there really a meaningful distinction”

between these folks and the proud boys and the oath keepers? I mean, yes, the idea of the conspiracies and again, I'm happy to have L.T. or other sort of challenge me on the way I've kind of talked about how the oath keepers and the proud boys sort of the sort of the differences, but it's very, very hard to see when you really drill down and spend a lot of time with these cases, as I know this group has, that there are really any meaningful distinctions between the most

violent of the actors on January 6, who are not associated with the proud boys and the oath keepers and those groups. You can draw a distinction between some of the other followers, right, and those that didn't engage in violence. You know, cards on the table, I think all of them deserve the convictions that they got and none of them should have been pardoned, but I do think it is fair to say that there are gradations of culpability and gradations of severity of conduct, but it's not necessarily

so obvious that all of the proud boys and the oath keepers are on one box and everybody else's is somewhere else. I will just say on this that the gradations of responsibility are well reflected in the convictions and sentences themselves, which range from misdemeanor trespassing,

“which is a huge, I think, plurality of the cases, actually, to some extreme violent activity”

and the sentence ranges from a few days in jail to, you know, 20 plus years. And so I don't think the criminal justice system was insensitive to exactly the point that James is making. So, you know, one thing we have here is we have two people who spend a lot of time in the court rooms and I, I, from following Rogers tweets every day, I came away with a very healthy respect, both for Judge Meta and for Judge Kelly who presided over these cases. And since, you know, we're

going to hear a lot about, you know, what an injustice these cases were, LT and then Roger, I'm interested for your perceptions of these were multi-week trials. You guys sat through them. What did you make of the trials? Were there big open questions in your mind at the end of it? Was there some dicey thing that made you anxious about the conviction? What, what, what did you make of the trial?

“I mean, having done them, I think that the one of the operative questions that any conspiracy”

charge, particularly seditious conspiracy charge goes into when going into trial is, will the jury see what the agreement was and that that agreement was reached by all the defendants the government charged. And a squishy thing about conspiracy is that agreements can be reached in a number of ways in human behavior. It can be reached through speaking and agreeing to one another. It can be reached by physically shaking hands. It can be reached by a leader saying something over and over

and then a bunch of people acting in line with that statement. And so knowing all those amorphous ways that people can reach agreements and have this kind of connection of mind around a criminal

objective is going to always be something that the government is needing to prove and questioning

at the end was the jury see it the way the government presented it. And, you know, you've got the first trial with five defendants charged with seditious conspiracy and a couple of them were acquitted. And I think that shows you that these D.C. jury is something that's not talked of had a lot is when the criticism as well was always D.C. jury. So these guys were going to be convicted or every January, six defendants would be convicted. I mean, even in the seditious

conspiracy trials, D.C. jury's were parsing through the evidence and determining whether or not someone reached that agreement and acquitted some of these people that the government presented evidence of that there was an agreement. And I think that there's really little better evidence than that that a D.C. jury is quote unquote the D.C. jury was looking through everything and combing through it. Pause, you know, maybe we'll get to this another element of that

educates kind of the conversation we just had a second ago is when the government sought the

terrorism upward departures. There was a question of whether the courts would grant that in this context. And obviously the courts did and maybe we'll get to sentencing in a little bit. But I think that that's another way that you can kind of distinguish in these gradations of severity of conduct is when the courts ended up calling these folks terrorists by using the upward departure

the single most present observer were these barren good trials? The most present with Brandy

Buckman test. Yes, Brandy Buckman, the estimate of Brandy Buckman was always there as well.

They were great trials. And we were very lucky to get these two judges. A meat made a pointed biobama and Tim Kelly appointed by Trump. Very deliberative, maybe deliberative to a fall with Kelly. But you can see it in the sentences. You know, like in the Oathkeeper's case, 18 years for roads, 53 days for Tom Caldwell. He drew distinctions and four years for Harrelson. All of those seemed to make sense to me. And the trials themselves, four months for the

“proud boys. Now, I think on appeal, if this had been a legitimate appeal, I think there would have”

been interesting questions about, in either of these cases, did you have the sort of conspiracy

that we see on TV like in Oceans 11 sort of thing where, you know, you go there and I'll go there and then we, and the response to that was crime. The crime is not seditious plan. It's seditious conspiracy. They don't have to have a, you know, prove exactly what the plan was sort of overarching to block the certification through any means necessary. And the barrier fail and then everyone goes into action. I'm not 100% sure what a pellet judge is, especially the pellet judges we have now

would say about that. I mean, there's no question, you know, when, when everyone is marching together, I forget what that stacked formation up the, you know, they're, they're, they're working together.

“But, you know, I liked the, one of the cooperating witnesses, Matt Green, and I think the”

proud boys case, the barrier fail, you know, Sam's soul pushes over the, Sam's soul in three other guys, push over the barrier, not proud boys. And, and suddenly, you know, this guy has been trained. He's been told, just listen, just follow instructions, but we aren't telling you what the plan is, and he says, oh, shit. This is it. This is it. And, and they all do go into action, and they, they do, in coordination, help breach for barriers. So, there's an element of spontaneity,

even with these conspiracy cases, and I'm not 100% sure what a pellet judges, Trump appointed a pellet judges would have, I'm actually I'm pretty sure what Trump appointed a pellet judges would say. But one thing, Roger, is then, and I don't think I hear very many people talk about it this way when they talk about the unfair judges in DC. Judge Mata, I mean, we spent a lot of time together right in the courtroom over three years, but Judge Mata, and also over saw a bench trial in the

Oathkeeper's case, and acquitted one of the defendants. So, it's another version of what I was talking about earlier with the jury's doing that, the judge did that. And so, there's the, there's the normal kind of parsing through, there was plenty of rulings against the government by the judge,

“which people can point out to retort this notion that judges were biased. But I think one of the”

strongest things to point to is he acquitted one of the defendants that had gone into the capital, as a member of the Oathkeepers with the Oathkeepers. And I think that that shows you the judge was parsing through the facts very carefully throughout his entire tenure of these cases. Can I just add that I actually did an article fairly early on in this, where I compared jury verdicts to judge verdicts, judicial bench trials. And they were essentially identical. And of course,

the bench trial group was for the most part self-selecting to conservative seemingly conservative, you know, Trevor McFadden and people that they, and the results were basically the same.

Yeah, I mean, I, I got to say I've always thought the criticisms of D.C. jury's are a lot

thought a D.C. jury was behaving politically or, you know, I, I just, I know that there's a

“reputation that comes from the politics of D.C. and let's be frank, the racial composition of D.C.,”

but I don't think it has much basis in fact. So before we wrap, Mike, I want to ask you and L.T. and James for the, your sense of the impact of decisions like this on the institutions that you work in, like, you said it consumed your life and consumed the FBI's life for six months or more than six months. And then, you know, the president just part of this almost everybody or commute, almost everybody. And then the U.S. attorney throws the remaining cases. Let's be blunt about

what's happening here. So what does it do? Do you have a sense of the scuddle bud in the bureau about stuff like this? Yeah, you know, it may surprise many of our listeners to know that I've

“grown slightly cynical about the current iteration of the FBI. But I don't know that this”

materially changes FBI culture or FBI incentives simply because there has been such a calling of both senior. The sort of people who really would have pushed back about this have already been fired or resigned for pushing back against other things. There is nobody at an executive level who was very involved in these cases who still remains. And in terms of the larger and more prominent J6 cases, a lot of those people are gone at the wine level too. I want to note one thing from the perspective

of an FBI investigator that I feel kind of bad about because in criticizing how DOJ and the FBI handle January 6, I'm going to implicitly be criticizing the conversation we just had. And viewing this through legalistic perspective, focusing on investigative and prosecutorial decisions, I would argue was a wrong decision from day one. To look at the events of January 6th and not think about it in a larger cultural context, in a context of deraticalization and de-escalation.

And in whether we needed new authorities to go after domestic terrorists more aggressively,

those conversations never happened. And I would humbly suggest if we had responded to 9/11

or a smaller international terrorism incidents and only focused on a prosecution, we would have never actually diminished the risk of a future event taking place. Even without these partings, I don't know that anything that FBI or DOJ did after January 6th materially changed the landscape that Dave rise to these sort of people. -L2, I suspect you think that the demoralizing fact factors in the justice department are stronger than

Mike thinks they are in the FBI. -Yeah, I'll start with the shadow of this cast and I'll try to end with some sunlight. But before I do, I'll push back a little bit on Mike's point. And maybe it's just because I'm too close to the project, so I admit I'm probably hopelessly biased. In other words, to reframe what Mike just said, had we not done these prosecutions, there would be no difference

“then where we would have been now without the partings in the domestic terrorism landscape?”

That's got to be wrong. The dampening effect across the organized boldness and explicit actions of militia patriot movements, I think, was noticeable and probably quantifiable by measuring the breakdown of groups like the Oathkeeper's groups like three percentors groups like America first that started rising and getting more violent as we saw approaching January 6th. And so maybe it's temporary, Mike and we can find some middle ground there and maybe they would have regrown.

But the prosecutions and the widespread focus across the country on punishing what just happened on January 6th, broke those groups and fragmented them in a way that I think had a significant impact on that militia patriot movement. But again, I'm possibly hopelessly biased. And so okay, so the shadows of what these motions may cast. I mean, look, this will be a stain on the

institution of the Department of Justice for its history. It will never go away. We will always look

done this. Because it's no longer at the behest of the president and though the president pardoned and our arms are up, DOJ is now complicit if it wasn't already before. And so this will forever be a stain on the institution that Todd and others have now imposed. And another shadow is look, I suppose there will be prosecutors and agents who may have a voice in the back of their mind if something goes wrong in America and wonder, "Am I going to get crushed by this with the

presidential election coming up 12 months from now? Am I going to get fired if the administration

shifts?" That's always a concern with the abuse or weaponization of a criminal justice system

as you send a chilling effect across the public servants that are supposed to not think about those things. I would think that the right people are in those positions. They're not going to think about that but we'd be silly not to wonder if this is now going to be a thing people are going to worry about. And it'd be reasonable. There are people's lives that are uprooted by the firing send the dismissals of these cases. And so here's some of the sunlight to me. It'll be a stain on the

institution but the institution will be fine. DOJ will heal and it will be rebuilt and it will look down on what just happened here and look forward on the factual book that the department wrote and the FBI wrote and memorialized in American history. I mean, no one can be a serious human being and deny what occurred on January 6. They may lie to themselves or lie to the public but you will forever be a clown if you ignore those facts and talk about it any differently than what happened

“and everyone knows that. And so I think that the institutions will hold and be fine.”

James, you're one of the people who got crushed in the first wave of fireings as a result

of not these cases but related cases that you worked on. You get the last word today. Is this a situation where like Mike describes with the FBI that everybody who this could demoralize is already gone or is this a situation where you're creating a large number of people who are going to look over their shoulders before they decide what cases to get involved in in the future? I tend to agree with Mike that the folks that were most bothered by and involved in and

affected by these cases are are probably gone either voluntarily or involuntarily at this point.

The line is fuzzy. I mean, you got fired LT left voluntarily, Mike left voluntarily, but I mean,

“talk about a continuum. Yeah, no, I think that's exactly right. And I want to have the faith”

that LT is describing in an institution that's rebuilding itself and I want to believe in that and would want to be involved in that but we are in dark times and it is very hard to imagine that right now and I'll just make one I suppose final point that I don't think has been explicitly said which is if you view as I think it is quite fair to view the group that is essentially being functionally pardoned whose prosecutions are now being definitively ended assuming there's nothing

that happens in the procedures to change that which I don't think there will be. One aspect of that group and I think Mike touched on this is that they were most involved in targeting the transition

“of power, which itself was the result of elections, right? And I think we've also seen from this”

administration including right at the end of March, you know, an executive order that focuses on elections and the potential consequences of this not only for the justice department but for a potential broader effort of sewing doubt about elections and electoral results are the kinds of things that I would worry very deeply about us not being able to rebuild institutions because that elections means or the you know so that attack on elections means you don't have an opportunity

to have the kind of transition of power away from the attack on institutions that we are seeing. And to the extent and I think this is this is a point that both Mike and LT were touching on to the extent this this most recent step catalyzes or emboldens those that would be inclined to

quite frightening and that additional fuel to the fire I think is something we should all be very

“deeply concerned about. And James just another element I had not thought of that now consider that”

increasing risk with the decreasing abilities of our institutions because of the dismantling of the

teams that are supposed to be focused on those threats. So that's that right. We are going to leave

“it there James Pierce of the Washington litigation group Troy Edwards Mike Feinberg Roger Parlaw”

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