This story published by Revolver has been rocketing around Twitter for a couple of days, and my criticisms of the content of the story have earned me nothing but scorn from the ranks of the “everything about the FBI is corrupt” crowd.
I find a lot to be critical of with regard to the FBI. You can go back and look at what I wrote about the Carter Page FISA, or what I wrote about the Flynn investigation.
But the Revolver story is simply laugh-out-loud nonsense in many, many regards. The author of the Revolver story has a Ph.D. in Political Science and no legal background or training in the law that I have been able to find.
The story is extraordinarily long, and there is no way I can do a comprehensive “fisking” of all the errors in 1000-1200 words here. But there are some very significant “whoppers” that are quite easy to respond to, and should give you a clear sense that the author was out of his element in writing about federal criminal procedure.
I want to focus first on the Oathkeepers case. That seems to be the most well-known, it has attracted the most press attention, and it is a big part of the content of the Revolver story.
A central thesis/contention/allegation made by the Revolver piece is that there are individuals referred to in the indictment as “Persons One, Two, Three, Ten, etc.,” who have never been identified and never been charged, but the allegations of the indictment are such that they played significant roles in the planning and execution of the events of Jan. 6 that others are being made to stand trial for.
The author is trying to make sense of this fact — what is keeping the government from naming these people, arresting them, and bring them into court to face charges along with everyone else.
The conclusion the author draws is that they must be FBI undercover agents or confidential informants who were acting side-by-side with the charged defendants — and in some ways actually leading the operation. If they were FBI undercover agents or confidential informants, that means the FBI had prior knowledge of the planned attack on the Capitol but did nothing, OR — more ominously — the FBI was actually orchestrating the Jan. 6 violence.
Now consider this fact: Two weeks ago, a Grand Jury returned a Fourth Superseding Indictment in the Oathkeepers case, naming four new defendants not previously charged. New charges were added, along with new factual allegations to support those new charges. The document went from being 25 pages long (3rd Superseding) to being 38 pages long (4th Superseding).
A 4th Superseding Indictment is actually the FIFTH charging document in the case — the original and four superseding versions.
If there were 3, 4, 5, or however many undercover FBI agents or informants planted among the Oathkeepers all along — as Persons One, Two, Three, Ten, Fifteen, etc., are claimed to be in the Revolver article — why would it take prosecutors approximately five months and five efforts to get all the factual allegations properly set forth in the indictment? If they had all that first-hand information from the undercover agents and informants as early as Jan 7, why are they still naming new defendants in early June? Shouldn’t they have known all these facts back in January?
We know who Person One is — it’s Stephen Rhodes. The indictment says Person One is the national leader of Oathkeepers, and no one disputes that’s
Stephen Stewart Rhodes. Mystery solved. Rhodes isn’t charged because he didn’t go to the Capitol. I’m not sure he was even in DC. As described in the indictment, some of the charged defendants were in contact with Rhodes by phone as Jan. 6 was unfolding.
The Revolver article says those calls make Rhodes a “co-conspirator.” But it doesn’t say what he was supposedly “conspiring” to do. There are no recordings of those calls. Rhodes is going to claim — and I’m sure his attorneys have already told this to the prosecutors — that Rhodes was attempting to organize a “PEACEFUL PROTEST” as would have been his right under the First Amendment. Without recordings of the calls, how does the government prove otherwise “beyond a reasonable doubt.”
What about Person Two?
Person Two is alleged to have had a significant amount of involvement in planning, and Person Two went to the Capitol grounds and inside the Capitol Building. I have no doubt that if the government had wanted to call Person Two a co-conspirator and named him/her, the Grand Jury would have indicted him/her.
So why didn’t the government do so? Is it because — as the Revolver story supposes — Person Two is an undercover FBI agent or an informant? Highly doubtful. So what is it?
Someone among the Oathkeepers was the first one to tell the FBI “I want to cooperate in order to help myself.” That person likely had a lawyer, and with the assistance of that lawyer called the FBI on January 7. Based on the description of Person Two, he/she was involved to a degree that he/she could name just about everyone else involved and what they did.
All the Oathkeeper defendants know who it is. Based on the description of Person Two’s actions in the indictment, the others who are charged can say “That was Joe Blow” — and then look around and realize that “Joe Blow” is not among the people charged.
Does that mean that Person Two/Joe Blow was an FBI undercover or informant BEFORE January 6? No, it doesn’t. But it is very likely that Person Two was the first one through the door at the FBI Office in Washington DC and got the first chance to cut a deal because he had information to trade that the government did not have and that the government needed — what were the names and actions of the persons he was involved with.
Nothing in the law requires the prosecutors to name Person Two in the Oathkeepers indictment. They can charge Person Two separately and alone in an Information, and give Person Two credit for their cooperation when Person Two is sentenced. There is no time frame for doing this.
But the named defendants know who he is and they’ve told their lawyers who he is.
The Revolver story also questions why aren’t all the other “Persons” named as defendants, and claims there are only three primary reasons for not naming a “co-conspirator” in an indictment.
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.
There is a link in the text there to support the claim with regard to there being “three primary reasons” — that link takes you to a website called “USA Legal.com,” where you can find all types of legal forms to assist you personally or in your small business. Need to incorporate — they have the form. Want to create a will — they have the form. One-stop-shop.
Okay. Thanks for THAT. That is certainly an authoritative source for specifics on how federal prosecutors do their work.
Having written between 500 and 600 indictments, I’ll say this: You call someone an “unindicted co-conspirator” in an indictment when 1) you’re not sure of their true identity; 2) they are not yet under arrest, you’re not certain where they are, and you think they might flee if they see their name in an indictment; 3) they are cooperating; 4) you have charged them in a different case with other defendants for tactical reasons — you can’t name them in two cases for the same conduct; 5) you are not sure as to that specific person that you will have sufficient admissible evidence to convict them at trial when you go to the grand jury; 6) the person is not an actual conspirator because they didn’t know what crime was being conspired about by the others — they only knew something illegal might be happening soon.
This is by no means an exhaustive list.
But the “three primary reasons” given by the Revolver author are a joke.
Lastly — for now.
The Revolver story claims that all the individuals identified as “Person One, Two, Three,” etc., are “co-conspirators”.
That’s not the way it works.
A conspiracy is an agreement between two or more people to commit one or more specific crimes; there is a specific intention to bring about the agreed-upon crime, and one of the co-conspirators commits an “overt act” in furtherance of the conspiracy’s objective.
In the section of the story on the Proud Boys, the author includes the following exchange of messages by four individuals, followed by the author’s legal conclusion:
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.
Dear Mr. Beattie: Conspiracy to do what?
There must be an “agreement.” The object of the “agreement” must be to commit a crime. The crime must be definite and specific, reflecting an intention to commit that crime.
Look at the way the “Conspiracy” charge is worded in the Oathkeeper indictment:
From at least as early as November 3, 2020, through January 6, 2021, in the District of Columbia and elsewhere, the defendants did knowingly combine, conspire, confederate, and agree with each other and others known and unknown, to commit an offense against the United States, namely, to corruptly obstruct, influence, and impede an official proceeding, that is, the Certification of the Electoral College vote, in violation of Title 18, United States Code, Section 1512(c)(2).
You charge the existence of an agreement to commit a crime and precisely the exact crime that was to be committed.
So, when Mr. Beattie strings together the lines “it would be epic,” “fuck yea,” “smash some pigs,” “turn em loose”, “I agree” — my question is: “What crime did the four participants in that conversation agree to commit?”
I’m at the 1800-word mark. But I promised you a funny story that Mr. Beattie didn’t recognize in the material he quoted.
When a person is arrested on a criminal complaint in federal court, the prosecution has 14 days to obtain a grand jury indictment, or the person is entitled to a preliminary hearing before a magistrate as to whether there is probable cause for them to stand trial.
Consider the two options:
- Grand Jury: Secret proceeding; only the prosecutor and FBI agent witness in the room; no defense attorneys; no cross-examination; the transcripts are sealed until of time of trial.
- Preliminary Hearing: Before the magistrate; open court, not in secret; defendant(s) and their attorneys are present and listen to the agent’s testimony; defense attorneys get to cross-examine agents; defense attorneys get to offer exculpatory evidence to the judge; defense attorneys get to argue to the judge there is no probable cause and case should be dismissed.
As the prosecutor, you get to choose — Option 1 or Option 2. Which sounds like a better option?
Well, apparently, in the Michigan case involving Gov. Whitmer, the prosecutor found himself having to do Option 2.
The Revolver Story has the following description of what happened during the Preliminary Hearing:
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 [sic] 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.
To experienced prosecutors and agents, this is “laugh out loud” funny, and if an agent and/or prosecutor had this happen 30 years ago, they would have never lived it down in their careers. Here are some “rules” that were violated by the feds in this episode:
- Never do a prelim. This investigation went on for over 4 months. Write the frickin indictment and go to the grand jury. A conspiracy indictment would take an hour to write, and 15 minutes to present to the grand jury. But don’t run out the 14-day clock and be forced to a prelim.
- Don’t let the agent take notes during the prep session the night before the agent is going to testify.
- Don’t have the agent — or let the agent — take anything to the stand other than the affidavit that supported the criminal complaint. The defense lawyers have that already. It should have all the necessary facts in it to show probable cause for trial. It was already used to show probable cause to arrest. Just testify to the same frickin’ facts and use the affidavit as your notes.
- The transcript shows the “notes” were 4×6 index cards. DO NOT EVER let your agent say “Let me look at my notes” while testifying unless you have already given the notes to the defense and you know what’s in them.
- The defense isn’t entitled to see the notes UNTIL the Agent says “Let me look at my notes.” Now they are entitled to see whatever he is reviewing in order to compare it to his testimony.
- Don’t EVER write down information in notes you take to the stand that has information about unindicted co-conspirators and confidential informants. Some shit you just need to learn to remember without having note cards.
This episode is just emblematic to me of how far the quality of federal law enforcement has fallen in the past 10-15 years, when the agencies quit prioritizing hiring the “best and brightest” to be Agents and Prosecutors.
2400 words. Double what I promised you.
And I’m just getting warmed up.