Thread by @McAdooGordon

NONE - I repeat - none of the unindicted co-conspirators in the Jan 6 cases will turn out to be undercover agents/informants. The law doesn’t consider them “conspirators” whether they’re indicted or not - they’re not legally agreeing to the offense. /1 revolver.news/2021/06/federa…

There may be undercover agents or informants in the cases -I’ll get to how likely that is in a minute- but they WILL NOT be identified in DOJ pleadings as unindicted co-conspirators. If DOJ knows they are cops/informants, they can’t put them in charging docs as co-conspirators./2

The ONLY way that happens is if DOJ doesn’t know the person is undercover/an informant, or if the AUSA has gone completely off the rails in violation of the law & Dept policy. Any AUSA who’s done that will be in SERIOUS trouble, as will any LEO who may have misled DOJ about it./3

I do not know the author(s) of this piece, but they evidently did not consult any criminal defense lawyer or former prosecutor for example, who could have readily told them that this hypothesis is extremely, extremely unlikely. /4

Further, while it’s possible FBI had undercovers or informants in the militia groups, that is also extremely unlikely, for both factual & legal reasons. Factually, the govt would have been better prepared for the event than they were. Legally, it would have been problematic. /5

The govt cannot legally & is not infiltrating political groups. The law PRECLUDES this. DOJ & FBI policy preclude this. This has been the law for decades. To infiltrate a group or use informants requires an open investigation into specific, identifiable criminal activity./6

FBI cannot just investigate “a group.” It has to have intelligence about conduct by individuals in that group that is or potentially is illegal. Talking about or planning to commit a future specific crime could fall into that category, but even then the govt has to be careful. /7

Talking isn’t necessarily planning & planning isn’t necessarily doing. It’s not necessarily criminal conduct or even conspiracy until an act to further the illegal conduct takes place. Law enforcement has to be wary of engaging in entrapment. /8

FBI has not, up until now, been in the business of infiltrating such groups because there hasn’t been any evidence of conspiracy to commit crimes, so the law prevents infiltration. That’s why the Michigan case is an outlier, and has hallmarks of entrapment issues. /9

Prior to Jan 6, there was little evidence the militia groups planned to engage in criminal conduct as opposed to protected First Amendment conduct. There doesn’t seem to be info that would have justified even opening a case, much less undercovers. /10

What evidence there is was limited to a few people & is still ambiguous, which is why FBI Norfolk treated it the way they did & why Wray just testified that he doesn’t see that they missed any actionable intelligence. /11

Now, could FBI/other law enforcement have had undercover or informants or been trying to recruit some into those groups after the election? Sure. But if they did they had better have their damn ducks in a row to be able to show what FACTS tending to show CRIME they had for it./12

Because otherwise, that activity is going to have been seriously illegal. But bear in mind that at the investigative stage, they don’t need even probable cause to investigate. They need something less -along the lines of reasonable suspicion- but it has to be based on facts. /13

And, even then, FBI has policies that have to be followed to justify informants & undercover work. So, we’ll see what FBI says about it, but the most likely answer is that they did not have undercovers & probably not informants either in the militias. They shouldn’t have had. /14

It’s a more complicated answer as to whether there were undercovers or informants at the rally, especially because the sitting POTUS was scheduled to speak at it. And, then whether any such who were there went with the crowd to the Capitol is also a more open question. /15

Those questions need to be answered. And it is very, very important that we now know exactly what the govt was doing in that time frame, because in light of DOJ & the WH’s recent announcements, there may be changes coming about such domestic surveillance. /16

We must insist that our government NOT erode civil liberties, including the right to assemble, in the name of fighting “domestic terrorism.” Ideology -as a basis for investigation- must STAY OFF THE TABLE. This is still true even if it is a motivator for bad actors. /17

What I can tell you for sure is that the assertion in the article that the identification of unindicted co-conspirators will provide illumination in this area is wrong. That assertion is based on not having an understanding of how the law works or of how charging docs work. /18

To give an example, in 1 case- ID below -the unindicted co-conspirator is evidently the defendant’s wife. There’ll be lots of reasons folks aren’t indicted even tho the govt considers them conspirators.Them being cops & informants won’t be among them.
justice.gov/usao-dc/defend…

/19