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Growing evidence Capitol attack was pre-planned undercuts Trump impeachment premise

Emerging evidence also raises questions about whether the FBI and other security agencies acted proactively enough to thwart the violence.

Published: February 7, 2021 12:18pm

Updated: February 8, 2021 9:35am

Days before former President Trump's impeachment trial begins, newly filed federal charges against anti-government activists offer fresh, compelling evidence that the accused perpetrators of the Capitol riots pre-planned their attack days and weeks in advance and in plain sight of an FBI that vowed to be vigilant to extremist threats.

A dozen FBI affidavits supporting charges against the more than 200 defendants show rioters engaged in advance planning on social media sites. The planning included training, casing sites, identifying commanders on scene, and requests for donations of cash, as well as combat and communication gear.

More than a half dozen of the suspects are now charged with conspiracy to commit violence for actions predating the Jan. 6 riots. The early actions identified in court documents date back to November, with planning and rhetoric accelerating after Christmas, court records show.

That growing body of evidence raises questions about whether the FBI and other security agencies acted proactively enough to thwart the violence. It also undercuts the House Democrats' impeachment claim — supported by 10 Republicans — that Trump's speech spontaneously incited the riots, legal experts told Just the News.

"I would hope that those 10 Republicans and hopefully even some Democrats would say as we now look at the timelines that the media, The New York Times, The Washington Post, and all are reporting on, here's exactly it, the facts," said Kenneth Starr, the former federal appeals judge, solicitor general and Whitewater independent counsel.

"[House lawmakers] made a huge, colossal blunder," said Starr, who was a member of the defense team for Trump's first Senate impeachment trial. "So walk back, and apologize to the former president, apologize to the American people that I never should have voted in favor of this without the benefit of all the facts. I rushed to judgment."

Trump's lawyers are planning to argue the president's speech did not in fact incite violence but rather called for peaceful protest and was protected by the First Amendment. They also are preparing a video montage showing Democrats making comments encouraging violence dating to last summer's BLM protests.

George Washington University legal scholar Jonathan Turley, a Democrat who has defended Trump on impeachment issues, argued in a column published Sunday in The Hill newspaper that the impeachment claims do not meet the legal standard of incitement.

"It is so much easier to claim easy prosecutions than to prosecute such made-for-television charges," Turley wrote. "I do not fault these experts for speculating about such a case, but many claim that prosecution would be relatively simple. That is just not true.

"The problem is free speech. The remarks of Trump last month would not satisfy the test in [landmark free speech case Brandenburg v. Ohio] when the Supreme Court said 'advocacy of the use of force or of law violation' is protected unless it is imminent. Trump did not call for use of force. He told supporters to go 'peacefully' and to 'cheer on' his allies in Congress." 

Beyond the First Amendment, the FBI's investigation provides growing evidence that the riot was not spontaneous but planned. For instance, last week federal prosecutors filed an FBI affidavit showing that two days after Christmas, an anti-government activist named Ethan Nordean in the state of Washington posted a message on his Parler account as he planned to come to Washington for the Jan. 6 Capitol protest. It made a fund-raising appeal to "help us with safety/protective gear and communications equipment," according to FBI documents,

By Jan. 4, Nordean, a Proud Boys member who also went by the fictional name Rufio Panman, escalated the rhetoric as he prepared to come to the capital, suggesting violence was imminent.

"Let them remember the day they decided to make war with us," Nordean allegedly wrote on his Parler account.

Screenshots taken from a video "show NORDEAN and other Proud Boys dressed in tactical gear along with the phrase 'Back the YELLOW,' which is a phrase commonly used to show support for the Proud Boys," the FBI affidavit said.

FBI affidavits filed against other defendants in the attack detail extensive fundraising efforts on popular and public websites like Go Fund Me and the Christian fundraising site GiveSendGo, prompting a crackdown on such sites.

One of the cases in which the FBI has detailed the most extensive pre-planning involves the conspiracy charges against Thomas Edward Caldwell, Donovan Ray Crowl, and Jessica Marie Watkins.

"Evidence uncovered in the course of the investigation demonstrates that not only did CALDWELL, CROWL, WATKINS, and others conspire to forcibly storm the U.S. Capitol on January 6, 2021 — they communicated with one another in advance of the incursion and planned their attack," an FBI affidavit states.

The FBI alleges intercepted audio from the Jan. 6 attacks shows the three discussing sticking to a plan.

"We have a good group," Watkins is quoted saying in one of the transmissions. "We have about 30-40 of us. We are sticking together and sticking to the plan."

The affidavit also cites a pre-riot meeting at a northern Virginia hotel

In one Facebook message, Crowl tells Caldwell: "Will probably call you tomorrow ... mainly because ... I like to know wtf plan is. You are the man COMMANDER."

The FBI also states that days before the riot Caldwell appeared to refer to Oath Keepers leader Elmer Stewart Rhodes in a Facebook message to group members in which he talked about coordinating with activists from other states.

"I don't know if Stewie has even gotten out his call to arms but it's a little friggin late," Caldwell wrote, according to the FBI. "This is one we are doing on our own. We will link up with the north carolina crew."

As the FBI uses open-source social media to make its case against many of the accused perpetrators, questions are also arising about why the FBi didn't do more beforehand to thwart actors who were talking about war, violence and combat when they got to Washington.

FBI officials, when pressed about whether agents were too complacent before the attacks, noted that an alert was sent Jan. 4 to the Joint Terrorism Task Force in Washington, D.C. warning of possible violence.

They also cited Director Chris Wray's testimony in September to the House Judiciary Committee in which he vowed vigilance against anti-government and white supremacist activists but warned that the bureau often feels constrained by the line between the First Amendment and imminent threats of violence.

"We recognize that the FBI must be aware not just of the domestic violent extremism threat, but also of threats emanating from those responding violently to First Amendment-protected activities," Wray testified.

"In the past, we have seen some violent extremists respond to peaceful movements through violence rather than non-violent actions and ideas, he said. "The FBI is involved only when responses cross from ideas and constitutionally protected protests to violence. Regardless of the specific ideology involved, the FBI requires that all domestic terrorism investigations be predicated based on activity intended to further a political or social goal, wholly or in part involving force, coercion, or violence, in violation of federal law."

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