- Defense lawyers in Capitol attack cases are sharing advice and gripes over an email listserv.
- Recently, the lawyers have discussed banishing defense counsel whose clients have pleaded guilty.
- Other emails feature complaints about federal prosecutors and the DOJ’s approach to plea deals.
In the six months since the deadly attack on the Capitol, defense lawyers for members of the pro-Trump mob have struck up a camaraderie of sorts over an email listserv where they compare notes on an investigation and deluge of criminal cases that federal prosecutors have described as “unprecedented.”
The listserv has provided a forum for the diffuse network of lawyers in the federal public defender’s office in Washington, DC, along with the many dozens of court-appointed counsel and others who have been privately retained by accused Capitol rioters. But emails obtained by Insider show that, like with almost any listserv, things can also get tense.
In recent weeks, the listserv — created by the federal public defender’s office— has featured complaints about prosecutors seeking restitution payments to help repair the Capitol. In early July, some on the listserv questioned whether defense lawyers should be banished if their clients plead guilty and agree to cooperate with the government.
“There’s a lot of grousing about the prosecutors,” one of the defense lawyers told Insider, speaking on the condition of anonymity to detail the email discussions.
Still, the listserv has functioned as a place to pool information, seek advice and occasionally dish on prosecutors involved in the more than 500 cases that have emerged from the violent insurrection, defense lawyers told Insider.
In an email obtained by Insider, AJ Kramer, the top federal public defender in Washington, wrote that his office established the listserv to “help coordinate communications about various issues arising” from the Capitol cases.
“No one should ever post/share attorney-client confidential communication on the list,” he wrote in a July 5 email to the listserv. “On the other hand, it was established to help people bounce ideas off of each other, to report on the progress of things like plea offers and discovery, to ask for help on issues, and so that everyone could get an idea of how the cases are proceeding and what issues people might be taking for approaching motions and trial strategies.”
Kramer did not respond to an interview request, and the US attorney’s office in Washington declined to comment.
In interviews, lawyers for the accused insurrectionists told Insider that email traffic over the listserv has been steady and only occasionally helpful, sometimes shedding light on how the Justice Department is approaching plea deals. One of the lawyers said it has opened a line of communication between the federal public defender’s office and far afield attorneys who were appointed or hired to represent accused members of the pro-Trump mob.
In one email, a lawyer shared that the federal prosecutor’s office has indicated that those who stepped foot on the Senate floor would not be allowed to avoid a felony conviction as part of a plea deal, according to three members of the listserv. The message deflated hopes among some defense lawyers for negotiating pleas to lower-level misdemeanor charges in those cases.
“I understand that there is a dynamic here that is almost spiritual in nature on the part of the government with respect to the sanctity of the Senate floor,” said Albert Watkins, a defense lawyer representing Jacob Chansley, an Arizona man better known as the “QAnon Shaman,” who appeared in the Capitol sporting face paint, a fur headdress and horns.
And on a recent email thread, defense lawyers griped about prosecutors demanding, in misdemeanor cases, that accused members of the insurrectionist mob pay $500 in restitution to help fund repairs to the Capitol. (Defense lawyers have said that prosecutors in the US attorney’s office in Washington are seeking restitution payments of $2,000 in felony cases.)
“I have also been told there will be a mandatory restitution amount of at least $500.00 even if my client broke nothing or touched nothing. Anyone else being told that?” wrote Laura Wyrosdick, a defense lawyer based in Louisville, Kentucky, in a July 7 email obtained by Insider.
Court records show that Wyrosdick is defending at least two defendants charged in the January 6 attack, including Kurt Peterson, a Kentucky man who was charged with unlawfully entering the Capitol. According to court papers, the FBI received a tip that Peterson had sent a Facebook message in which he recounted being close to Ashli Babbitt, the woman who was fatally shot by a police officer as Trump supporters tried to break into the House Speaker’s lobby.
Later, on the same email thread, the Philadelphia defense lawyer Ann Flannery replied: “I do understand the distaste – the government is coercing $500 payments in exchange for dropping inapplicable 12-month offenses.”
Flannery is representing Andrew Wrigley, who was arrested in Pennsylvania in January and charged with unlawfully entering the Capitol. In court papers, a special agent with the Capitol police said Wrigley documented his activities on Facebook, posting a selfie along with messages such as “At the protest in DC at the capitol building #stopthesteal” and “At the protest in DC. I went inside the capitol building and got tear gassed.”
‘An extremely helpful listserv’
The listserv’s existence was revealed publicly Tuesday during a court hearing in the case of Federico Klein, a former Trump State Department appointee who was charged with using a stolen Capitol Police riot shield to assault officers and wedge open a door they were trying to seal against the incoming hordes. Klein, who was pictured in police body camera footage wearing a “Make America Great Again” hat, was offered a plea deal but has not accepted it, his defense lawyer and prosecutors have said in recent court hearings.
During the court hearing, lawyers and Judge John Bates addressed discussions between the federal public defender’s office and prosecutors in Washington about creating a database for the voluminous evidence from the violent insurrection at the Capitol, including 2,000 hours of video footage.
“I realize that I’m but one person with one client, but the fact that those discussions are happening is not trickling down to defense counsel,” said Stanley Woodward, a defense lawyer representing Klein. “So the federal public defender’s office has created an extremely useful listserv in which every attorney who enters an appearance on behalf of the more than 500 defendants is added to that listserv. There’s a lot of information being communicated, and there’s been zero discussion with those counsel about this process.”
The hearing concluded with Bates tentatively setting a trial date for September.
About 20 defendants have pleaded guilty to charges stemming from the Capitol attack. An Indiana woman, Anna Morgan-Lloyd, was sentenced to three years of probation after pleading guilty to a misdemeanor charge of demonstrating inside the Capitol.
Morgan-Lloyd, who was also ordered to pay $500 in restitution, is so far the only one who has been sentenced.
On Monday, Paul Hodgkins is set to become the first defendant to face sentencing on a felony charge in connection with the Capitol breach. Prosecutors have recommended an 18-month prison term for Hodgkins, 38, who carried a Trump flag into the well of the Senate. His sentencing could set the bar for what punishment other defendants might expect as they consider going to trial or pleading guilty.
The FBI has said it has yet to identify more than 300 people believed to have committed violent acts at the Capitol on January 6.
“This is far from over,” FBI Director Christopher Wray said at a congressional hearing in June, “and with each arrest and each case we bring not only are we driving towards accountability for the attack, but we’re also learning more about what was out there beforehand so that we can use that to get better going forward.”
Drama among the defense lawyers
For the past several months, the federal public defender’s office in Washington has added new members to the listserv as more and more lawyers have entered appearances for those accused of ransacking the Capitol and, in some cases, assaulting police and members of the press. At times, lawyers already on the listserv have asked for other counsel to be included.
Defense lawyers described the tone of the listserv as collegial and professional, never straying into politics or Trump, who has been accused in civil lawsuits of egging on the crowd that overtook the Capitol in a bid to prevent Congress from certifying President Joe Biden’s electoral victory.
“It has always been professional. It has not been political yet. It doesn’t get into former President Trump. Nobody has come out and defended any of the conduct from January 6 or taken any position at all with respect to the events of January 6th,” one defense lawyer told Insider. “There have been some comparisons to the way law enforcement has treated other protests, but that has been legal in nature and not political in nature.”
The listserv has also been welcoming — at least until some of the accused attackers started pleading guilty.
Allen Orenberg, a lawyer representing a member of the far-right group Oath Keepers, asked in early July for his co-counsel Brian Lockwood to be added to the listserv. The request was met with protest from at least two members of the listserv, coming shortly after Orenberg and Lockwood’s client, Mark Grods, pleaded guilty to conspiracy and agreed to cooperate with the Justice Department.
“I don’t think defendant’s [sic] that have plead [sic] and are cooperating should be on this list serve. Not sure who’s in charge but I think it prudent that Grods and counsel be removed from access to this list,” wrote Tommy Spina, a defense lawyer based in Birmingham, Alabama.
Spina is representing Jonathan Walden, a Birmingham man who was arrested in early June and charged in the Oath Keepers conspiracy case. Prosecutors have alleged that Walden expressed interest a day before the Capitol breach in joining a quick reaction force. On the afternoon of January 6, Walden taunted and berated officers guarding the perimeter of the Capitol in riot gear, the Justice Department said.
Hours after Spina objected to the listserv including anyone whose clients pleaded guilty, the defense lawyer Stephen Brennwald echoed his concerns.
“I agree with the notion that cooperators’ lawyers should definitely not be part of this list. These lawyers can communicate with the government all they want, outside of this group,” wrote Brennwald, who represents Thomas Sibick, a New York man charged with assaulting a DC Metropolitan Police Officer Michael Fanone.
On January 6, the pro-Trump Capitol attackers dragged Fanone down steps into a mob, where he was beaten, tased, and robbed of his police badge and radio, according to court papers. An FBI task force officer said Sibick admitted in an interview to taking Fanone’s badge and burying it in his backyard.
In response to Spina, other lawyers said they did not mind the listserv including attorneys whose clients have pleaded guilty and agreed to cooperate with the Justice Department.
On July 5, a day many were taking off work in observance of the July 4 holiday, Kramer stepped in to break up the quarrel.
“It was clear he was being the dad, putting an end to the fighting that was going on in there,” a defense lawyer told Insider.
In his July 5 email to the listserv, Kramer wrote that “if you don’t want to be on the list it’s pretty simple” — just unsubscribe or contact his office.
Kramer added that it was “not helpful to make snide remarks about lawyers who represent cooperating defendants, as everyone is representing their clients’ best interests.”
“These cases are difficult enough with the way that the government is acting, without the defense lawyers sniping at each other,” he wrote.