As Donald Trump’s sentencing date approaches, he and his lawyers are throwing all the spaghetti at the wall to see what sticks. MSNBC legal analysts Andrew Weissmann and Mary McCord break down the former president’s request to adjourn his sentencing until after the election, and the Manhattan DA’s response. Then, ProPublica reporter Joshua Kaplan joins for a deep dive into his reporting on unlawful American militia groups. Andrew and Mary talk with him about the threat these paramilitary groups pose, how they’ve used Trump’s denial of the election results for recruitment and spreading their ideology, as well as the dangers of collaboration with law enforcement.
Here is Josh Kaplan’s ProPublica investigation: Armed and Underground: Inside the Turbulent, Secret World of an American Militia. (Included is a response from Meta about the use of Facebook as a recruitment tool.)
Also a note: We’re expecting a joint filing in the DC case next Tuesday, so we’ll release our episode on Wednesday so Mary and Andrew can detail what’s in that filing.
Andrew Weissmann: Hi and welcome to Prosecuting Donald Trump. It is Tuesday morning, August 20th. I’m Andrew Weissman and I’m here with my wonderful co-host, Mary McCord. How are you, Mary?
Mary McCord: I’m well this morning. How are you? It’s actually unbelievably cool in Washington, D.C. this Tuesday morning. It was in the 60s with coffee on the back porch. I had a run and didn’t feel like I was about to die. So very happy with the change in the weather.
Andrew Weissmann: So, it’s so funny you said that because it must have been a cold front on the East Coast because I’m up North and it was in the low 50s.
Mary McCord: Yeah. Wow. Well, you’ve got a flannel shirt on. I can see.
Andrew Weissmann: I’ve got a flannel shirt on and I’ve got wool slippers on. I mean, it’s just like grandpa here.
Mary McCord: Yeah, there you go.
Andrew Weissmann: Mary, we have such a different and great show and it’s such an important thing. And I just want to say we have a guest on as people know from who listen to this, we don’t typically have guests. And what we’re trying to do here is really talk about something that is preventative. You know, we’ve talked a lot about the four criminal cases, but we have this wonderful guest in an area that Mary, you are such a national expert in because of your, I hate to say it, day job. The day job outside of this podcast, but we’re going to talk about militias. And we’re really going to talk about the problem and trying to anticipate what could happen and how to deal with what could happen as opposed to talking about the criminal cases of what happened.
Mary McCord: Right. We’re looking forward, not backward. So that guest is Josh Kaplan. He’s a reporter with “ProPublica” and he will be joining us in our second and third segments to talk about his new deeply investigated piece about one of the largest American militia groups and the threat that that group and others pose to our democracy and to public safety. It’s a piece that I talked with him about while he was reporting on it. But before we get to that, Andrew, we do have to update and give our own thoughts on the latest. And I will say, last week when we did our podcast, I said, I’ll bet you anything, Trump comes in right away and seeks to postpone his sentencing in Manhattan. Well, not that it took any kind of like crystal balls —
Andrew Weissmann: Exactly.
Mary McCord: — to make that up. Yeah, I know. Yes.
Andrew Weissmann: Mary, how did you possibly think that would happen?
Mary McCord: That is going out on the limb, Mary. But it was really quick, right? It was not waiting till September 16th till Judge Merchan makes his decision on immunity.
Andrew Weissmann: Right.
Mary McCord: It was like immediate. You should right now postpone this. And that was done by letter form. So let’s kick it off there, Andrew, your reactions to not only the request to postpone sentencing to, let’s be clear, after the election, but also the D.A.’s response because he responded quite quickly.
Andrew Weissmann: Yeah. So his response was unsealed yesterday. So I first have a sort of caddy response to Donald Trump’s submission. It’s a one-page letter that is the most unreadable letter.
Mary McCord: It’s really bad, yeah.
Andrew Weissmann: It’s single-spaced at the margins change so that it goes from one end to the other. And it’s almost impossible to read.
Mary McCord: I agree.
Andrew Weissmann: And it’s also a bit of stream of consciousness.
Mary McCord: Totally.
Andrew Weissmann: We’ve talked about his filing, his legal filing to Judge Merchan and how, like, my guess is it was not written by the trial team. It reads like it was written by Supreme Court advocates in anticipation of where this is going to go. It was in striking contrast to the letter, which was basically in form unreadable and in substance unreadable.
Mary McCord: Yeah.
Andrew Weissmann: But just so people understand what their argument is, because if you strip away the detritus and get to the substance, what they’re really saying is, look, Judge, the way you’ve done this is that you’ve got a ruling that’s coming out on the immunity issues on September 16th, and assuming you rule against us, you are going to have sentencing on September 18th. That’s two days. And we think, that we have appellate rights, whether it’s state or federal appellate rights, but you’ve only given us essentially kind of a day to do that in which case we would seek a stay from you, we would seek a stay from an appellate court, because we shouldn’t have sentencing if this use of immunized testimony is something that we have a right to appeal. So that’s sort of the argument is sort of the short timeframe.
Mary McCord: And I would also just say, that is an interesting legal issue that I think we should spend a few minutes on. Like you mentioned, there’s a bunch of other stuff in here like revisiting the recusal and —
Andrew Weissmann: Right.
Mary McCord: — saying essentially to sentence would mean —
Andrew Weissmann: Fourth time. This is the fourth time.
Mary McCord: Yes, exactly. I’m like, please already. That’s another reason. And saying that if the D.A. files a sentencing recommendation that’s public, that would be prejudicial and election interference. Well, the D.A. responds, of course by law, sentencing recommendations are confidential and not made public unless the court makes them public and so on and so forth. So like you said, peel away that detritus. Do I have a legal question that has never been resolved because it’s never come up before because we never had a case like Trump v. United States before and that’s of course what we’ve talked about before and what Judge Merchan now has to decide. Was there such evidence that was introduced at trial at all? And if so, does that mean Trump’s entitled to entirely new trial, or does that mean that evidence could be harmless air? Those are questions that we all have our legal opinions about, but then the real question here is, whatever the ruling is, if it’s not getting rid of the case, which is what Mr. Trump wants, does he have a right to immediately appeal that? And as we talked about —
Andrew Weissmann: Right.
Mary McCord: — usually you appeal after —
Andrew Weissmann: After.
Mary McCord: — sentencing. And we know from the immunity decision that is an exception to getting an ability to appeal during a criminal case. But that is all about appealing before you were even made to go to trial because you’re immune. Here we’re after trial. There’s not an argument he was prosecuted for official acts. The only argument is that evidence of official acts may have been introduced and we had that legal discussion about whether anything that he’s claiming was official really was official. And so it’s just unanswered whether you get any right to appeal that before your sentencing. And I could argue it both ways.
Andrew Weissmann: Right, the real issue here is, is there a right to appeal that? Most defendants will say there’s all sorts of errors in their trial.
Mary McCord: Yes.
Andrew Weissmann: And by the way, sometimes they may be right —
Mary McCord: Yes.
Andrew Weissmann: — that there’s an error, but the way the law works is that’s something that you get to appeal after the trial and after sentencing and then you appeal it and if the court agrees with you, the case could get dismissed or they could go back for a retrial. It could go back for a resentencing. But in terms of the timeline, you don’t get to say, wait a second before sentencing, I want to appeal. So there’s sort of that issue. But Mary, as you noted, because this involves alleged immunized testimony, the question that the Supreme Court has not answered is could you have that interim appeal here? And so that is this open issue. So the D.A. has basically taken sort of a middle road. He didn’t agree with Donald Trump that this sentencing should be put off on the 18th. He didn’t disagree. He basically said, we leave it to you, judge, to make this decision. And he did note, however, that there is this appellate issue. There is this time issue. So he does sort of, to use your phrase, where he gives a sort of permission structure to the judge if he were to say there should be more time, but he doesn’t actually say he wants it or he’s against it. There may be a whole number of political reasons. There may be just a variety of reasons that he doesn’t want to jam up the judge by saying no or yes and say, we defer to you. And by the way, Mary, a lot of times in my career, that’s sort of the right thing.
Mary McCord: I agree. I probably would have done the same thing.
Andrew Weissmann: There are other times, especially in a high profile matter, where it could be viewed, and I’m not saying it applies here, but when I think about my high profile matters, where it’s not terribly appreciated by the court to have the government saying, hey, you take the heat on this, we’re not going to take a position and we’re going to let everyone yell at you —
Mary McCord: Yeah.
Andrew Weissmann: — whether it goes forward or not. Here, the D.A. has certainly protected himself from a little bit of the claim of politicization, —
Mary McCord: That’s right.
Andrew Weissmann: — of a rush. On the other hand, as Nicole Wallace likes to say, who you talking to? I mean, Donald Trump will always say it’s politicized no matter what you do in this.
Mary McCord: So this is actually the point kind of that I wanted to bring up while reading these that when you think of it, like I understand D.A. Bragg taking that position because he’s now in a box of if I say, no, you’ve got to go forward for accountability, et cetera, then he’s going to take criticism. And also just in terms of the D.A., they’ve achieved getting 34 guilty verdicts, right, from a jury, so that’s a very successful thing. They’ve shown the world the evidence of what Donald Trump did. So this last piece is the sentencing and I think they would agree and maybe not everyone would agree, but a lot of people would agree that even if given a sentence that would include jail time, a judge probably would allow that to be deferred until after appeal anyway. So they might be thinking, look, the stakes here are such that we’re okay saying, judge, if you think we need to postpone, we’re going to leave that to you, notwithstanding that we don’t think there’s really any merit to the argument about inappropriate admission of official acts testimony at trial. But the problem when you put this whole picture together, when you look at the history of this criminal prosecution, as well as the other three, we talked a little bit about this last week, is you look at how successful Trump has actually been at manipulating the system, right?
Andrew Weissmann: Totally.
Mary McCord: Like the sentencing was supposed to be July 11th, the trial was supposed to be earlier than it was, right? Then the sentencing got put off. And you know, now he’s put everyone in a box of being able to say this is political when he’s the one who pushed everything up to the very last minute like this through all of his delay tactics. And so it’s deeply unsatisfying to see those tactics work because for other people, you know, people go to trial in criminal cases every day and they don’t have this ability to just put everything off and never have to have true accountability. To me, it really emphasizes sort of the dual system that we have, unfortunately.
Andrew Weissmann: I couldn’t agree with you more. Two very quick points. I know a lot of people are probably thinking, well, I think what should be the guiding principle here with respect to Donald Trump is treating him like anyone else, that if this is how anyone else would be treated, he should be treated this way. The problem with that analysis is that, of course that’s true, but there is this open legal issue about when you could —
Mary McCord: That’s right.
Andrew Weissmann: — appeal and whether it would be something that you could have pre-trial or pre-sentencing or not. And so it’s not an easy thing to apply the rule of treat him like everyone else because it’s treat him like everyone else who has this legal issue.
Mary McCord: And no one else has had that, right?
Andrew Weissmann: Right. So it does complicate that because my strong inclination is, of course, that, you know what, it doesn’t matter what the ramifications are publicly if he’s being treated like anyone else. That’s a hard issue. The second is I do think the judge has put in a little bit of an unusual situation. He has not ruled yet on the immunity issue and he’s being asked to put off the September 18th date based on an assumption about what will happen on September 16th. And usually judges don’t do that. It’d be like, look, I’m going to rule on September 16th and if you have an application at that point for a delay or an adjournment, I mean, it’s just an odd position to decide now before the ruling that, gee, I need more time because I think, hypothetically —
Mary McCord: Because I think I might need more time.
Andrew Weissmann: Right, exactly. It’s sort of like, you know what? It’s somewhat premature in that the party should go ahead and I’m going to be issuing my decision. And for all you know, my decision might be favorable to you.
Mary McCord: Right.
Andrew Weissmann: In which case, there’s no reason to not have the A team as the next date for doing something. For instance, also the judge could decide he wants to hear evidence. And so there are a lot of things that could happen. So, it’ll be interesting. But just so everyone understands, we do not have a decision from Judge Merchan on this disputed issue or sort of disputed issue. And we should be getting that, I would think, at any moment.
Mary McCord: Agree.
Andrew Weissmann: Okay, Mary, why don’t we take a break here and when we return, we are going to hear from Josh Kaplan on his reporting in “ProPublica” focused on America right-wing militia groups and the future dangers of extremists collaborating with law enforcement, politicians, even just acting on their own. We’ll be back with him in a moment.
Mary McCord: Yes, let’s do it.
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Mary McCord: Welcome back. As we mentioned at the top, our guest today is Josh Kaplan. He’s been a reporter at “ProPublica” since 2020. People may be familiar with his byline from recent really blockbuster reporting about the Supreme Court ethical issues for “ProPublica.” I shouldn’t say the Supreme Court as a whole ethical issues, in particular, a couple of Supreme Court justices ethical issues, and that has been ongoing reporting for some time now that has been really, really impactful. He also has reported on the January 6th attack on the U.S. Capitol. He’s reported on the U.S. military’s withdrawal from Afghanistan and many other important subjects. “ProPublica,” of course, does in-depth investigative reporting and he has rightly earned not only a Pulitzer for that reporting, but also a George Polk Award and Edward R. Murrow Award and other awards. But what we have Josh here with us today to talk about is his latest investigative piece. In fact, it’s one that he and I talked about while he was doing that reporting because it’s on a subject that is something that I work on in my day job, my non-podcast job. And that is reporting about a really deep dive into an American militia group. And by militia group, I mean an unlawful private paramilitary organization. The title of this article is “Armed and Underground: Inside the Turbulent Secret World of an American Militia” and we will post a link to that piece in our show notes.
So, Josh, as we kick it off here, I do want to make clear that these groups are not lawful, but I’ll save that for a moment. I know what you did here as you dove really deeply into one particular organization. There are many across the country and they’ve sort of existed really since the founding of the country. But this modern militia movement, I would say dates to the ‘90s and in particular things like the Oklahoma City bombing, which of course was not committed by a person who was at that time doing it as part of a militia, but it was committed by somebody, Timothy McVeigh, who had been involved in the militia movement, including being present at Waco and really discussing and being involved in militias for some time, including in his younger years. So just to kind of table set here for our listeners, when you’re talking in this article about militia or paramilitary organization, what are you really talking about?
Josh Kaplan: Yeah. I mean, I think loosely speaking, it is these wide variety of groups and their kind of chief shared traits are an emphasis on armed military style training and this sense or belief that they are the last line of defense against the excesses of the government or the excesses of the left. And how those two kind of factors have manifested in terms of the sort of activities they do have changed significantly since the modern movement really started in the early ‘90s.
Andrew Weissmann: I wonder, Josh, if you could talk about, because we’re going to spend so much time on their tactics and how they’re going about doing things, and that’s going to get to the legality of what they’re doing, and it’s complicated, but not as complicated as people think as Mary’s going to explained.
Mary McCord: I would say it’s not complicated at all, just to interject on that, but we’ll get to that in just a moment.
Andrew Weissmann: So I think it’s useful to try to understand what do they want? Is there some unifying thread for what the sort of current militia movement is in terms of what are their goals? Are they seeking political reform? Is it economic? Is it racial? What is it that they want?
Josh Kaplan: It’s a fascinating question because it’s harder than you’d think it’d be, because it’s such an unusual thing to go off and join a militia and dedicate an enormous amount of your life to preparing for war, essentially. But for a lot of these militias, including this large militia I was looking at, kind of deliberately, there’s not a clearly defined goal. It’s a very capacious and vague ideology. So the mission statement of this group I was looking at, which has long been one of the largest militias in the United States, is something I’m going off memory here, but resisting all efforts to undermine the Constitution and the American way of life and we will restore America to the glory it once was. And there’s a lot of disagreement amongst the members of this group. Some of them are at least, you know, have significant ties to the white nationalist movement and they’re very upset about anti-white racism.
A lot of really common threads are they’re worried about gun control, they’re worried about COVID restrictions, voter fraud, alleged voter fraud. But because, I think, this kind of modern post-Obama form of militias don’t have these very clear mission statements that you might have seen in the earlier days when the white supremacist movement was really the main show in town in terms of far-right extremism. And that allows them to be more flexible, to be able to kind of morph themselves to bring in more people that are in positions of power, whether that’s in law enforcement, in government, and allows them to deal a little bit better with moments of extreme controversy, like we saw on January 6th.
Mary McCord: Yeah. And also I do want to make sure listeners are aware that the reason that Josh is not naming this group, I mean, that was at our request. I’ve been studying this long enough, and Josh knows his mission’s a little different when he’s reporting, that all media attention is good media attention, even when it’s got a negative focus. And I know from enough of my own work and my own writing on this issue that naming individuals, leaders, or groups, they love that. It then proliferates on social media, it’s used for recruitment, even if it’s negative. And so the fact is that the group that Josh studied, is really pretty emblematic, I think, of all the groups that I’ve studied in my career and that researchers brief me on pretty regularly about at least every two weeks on what’s happening. So that’s very deliberate on our part. But what Josh has experienced here, I think, shows the arc of what we’ve seen in terms of, you know, again, Timothy McVeigh, the attack on Oklahoma City was an anti-government based attack.
And so we’ve seen the ebb and flow of sort of white supremacy as a motivation, even though they’ll often deny it. Christian nationalism, I’d say now, I’d ask you, Josh, if you think that’s kind of now being injected as sort of an overarching ideology. And I think of them as grifters and users. Whatever is the cultural issue of the moment, and particularly a cultural issue being promoted, at least in these last eight years by Donald Trump, is the issue they will grab a hold of and run with for their own purposes, whether it’s recruitment, whether it’s training, organizing, making public statements, et cetera. And so that’s why things like and that’s why we’re having you on this program, because things like the baseless claims of election fraud led, of course, in 2020 to there being not just violence of course on January 6th, but other episodes of violence before and after the election. So, before we move forward, let’s jump back a little bit to fill in this gap here about the rise of militia activity when Barack Obama became president because that is when I think this fear again of the government’s coming to take our guns really spurred a real relaunch of these groups. And it seems like you found that in your reporting as well.
Josh Kaplan: Yeah, absolutely. I mean, how this was described to me. I mean, so this was a group that like a lot of the militias you might have heard about in the context of January 6, was founded in Obama’s first term. And at first it was basically an idea on Facebook, let’s make a militia, let’s all join together. But then it went from this kind of paper tiger to something with a real world physical presence relatively quickly. And kind of the impetus for that was they were able to capitalize on some of Obama’s gun control proposals that he started after the Sandy Hook shooting. And how this was described to me by militia leaders was we stopped having to look for people. They started coming to us and we’re having local chapters go from four or five people to more than 200 people in less than a year. And eventually, you know, had an active on-the-ground presence, not just an online presence in almost every state in the United States.
Andrew Weissmann: I was wondering if there’s any sense, this is sort of tying what you’ve been talking about and what Mary’s been raising, this issue of how big a problem do we have now? I think for a lot of people, they thought that with the prosecutions of the Proud Boys and the Oath Keepers, that there was this enormous deterrent effect and that this was largely, not entirely, but largely a problem behind us. But do you have a sense of how big a problem do we have now in spite of those prosecutions?
Josh Kaplan: Yeah. I mean so, there’s a lot more to say about kind of the aftermath of January 6th and why they were able to overcome that. But I think this deterrence effect ended up being a lot smaller than the people inside the militias were anticipating because they know their history and they know that that’s the sort of thing that could destroy them. But they were able, you know, this militia I was looking at, was able to grow at a really kind of rapid pace in the time since then. And, you know, I think part of the reason that we don’t hear as much about them is they’ve done a good job of keeping their activity more underground. You know, before January 6th, you could tell on Facebook, if you were on the right Facebook groups, you could have some sense that there was something underway. But now they’re being more careful about that sort of operational security.
And this group I was looking at, I mean, leaders in it are talking about how this upcoming election that in their view will be decided not at the ballot box, but at the ammo box. They’re talking about how they’re ready to force their way into voting centers if they have to or commit violence, whatever it takes. And also, I mean, I found this kind of eye opening that they have sometimes talked about January 6 as a botched job. The plans weren’t good enough. They didn’t go far enough. And if the militia movement hadn’t been weak, hadn’t been uncommitted, they could have really achieved something that day. And they don’t want to make that mistake twice.
Mary McCord: I want to focus particularly on that in our last segment of the episode, but we did skip from sort of a resurgence when Obama became president to current. And I do think it’s important to fill in that block in between there, which you do fill in your story, Josh. And that is when Trump was elected, typically if we look back to the early ‘90s to forward, we would see sort of a difference in popularity and outward demonstrations, for example, of militia activity between administrations, depending, frankly, oftentimes on the politics of it, because there was more of a concern that with a Democrat in the White House, you know, there was going to be gun control. But what was really changed, also, I think, with the election of Donald Trump is a difference in permission structure and groups that have been anti-government suddenly found someone that they thought was on their side, but that someone was himself anti-government. So that’s the piece between sort of Obama administration and where we are now and this involvement in politics and elections. So maybe before the break, if you tell us a little bit about that piece and we’ll come back and focus on the present in our last segment.
Josh Kaplan: As I think a lot of people remember from the Unite the Right rally in Charlottesville, which was when we first really saw this, militias and the broader far right became emboldened after Trump. They had more activity out in the open. I mean, in the Obama years, there were some scary plots that happened that were foiled by the FBI, but really, I mean, these guys spent a lot of their time out in the woods. And the main kind of chief threat of violence was towards federal agents and these sort of standoffs that often happened out West. And in the Trump years, you started seeing a lot more people in the streets, kind of proudly walking around with guns at rallies, gauging in various activities. It wasn’t Trump for the kind of anti-government or anti-government is no longer quite the right word, but this strain of the movement.
Trump wasn’t universally a good thing. I think the first three years of Trump’s campaign, it became a little harder for them to recruit and that’s true for a lot of these groups. They were on the downswing. That all changed completely in 2020. COVID hits. All of these conspiracies they feared seemed to be coming true and Trump is legitimizing them. Trump’s tweeting, liberate Michigan, liberate Minnesota. And suddenly you get on this track that carries us through the summer with the protests around the murder of George Floyd. That also is real boon for these groups and they’re very active, patrolling city streets with assault rifles, with baseball bats, getting in violent confrontations with protesters. And then, of course, you have the 2020 election, Trump says it was stolen, and that brings us on this train of violence happening at several protests towards the end of the year, and then eventually January 6th.
Andrew Weissmann: This is a good time for us to take a break. And when we come back, one thing that would be useful as we focus on tactics and violence is to maybe do some level setting on what the legal issues are here because I bet you that there are people listening this saying, why don’t we just, not to borrow this phrase, but why are these people not locked up? Why can’t they be prosecuted? What are the lines for bringing criminal accountability in terms of these actions and where do they cross over from legal to illegal? But with that, why don’t we take a break and we can come back and continue this discussion with Josh.
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Mary McCord: Welcome back. Well, as Andrew knows, and Josh knows too, because he and I talked quite a while he was reporting his piece. I’m champing, that’s champing, not chomping, at the bit to talk about why this is unlawful. So just to be clear, folks, this is something my organization, my day job, we litigated against unlawful militias after Charlottesville, so that’s why this is something that is such great interest to me. And one of the things, as Josh indicated, that militias, and by that I mean private militia groups, because the only lawful militia is our actually federally and state authorized militias. So we’re talking about the National Guard or other state authorized militia groups that report through the governor, if they can be federalized and report through our U.S. military. It’s the people that sometimes deploy abroad, sometimes are used for disaster relief, for support at the border, things like that, lawful activities by militias that are authorized by the government. That is what a real militia is.
Anything else we’re talking about here, whether these private groups of people that get together, that is an unlawful militia, an unlawful paramilitary. And as Josh was indicating, they will say, we stand as a bulwark against a tyrannical federal government or a tyrannical state government and try to claim that was sort of baked into the history of our country and our constitution. But that’s where they’re just so wrong. They’re so wrong historically and textually based on the constitution itself and based on law. So the three points to kick us off of this segment is there is no federal or state authorization for private individuals to group together and form their own militia under their own command. Well-regulated is always meant regulated by the government even since before the founding. Second point, the Second Amendment doesn’t protect them. The Supreme Court has been clear since 1886 in a case called Presser v. Illinois. They upheld anti-militia laws saying these do not violate people’s right to assembly under the First Amendment. They don’t violate people’s right to bear arms under the Second Amendment.
At that time, the right to bear arms was never imagined to include the right to bear arms for self-defense. That didn’t happen until 2008 when the Supreme Court decided a case called District of Columbia versus Heller, the first case ever to say individuals can bear arms for self-defense, but even in Heller, the court in a decision written by Justice Scalia said, that has nothing to do with paramilitary activity, reaffirmed as holding in press that the Second Amendment does not prevent states from prohibiting private paramilitary groups. And third point is all states, all 50, have either constitutional provisions or state laws that make it clear this is not lawful. The Constitution states — say that militia shall always be under the control of the government, and other criminal statutes prohibit paramilitary activity, training, and militia activity. So that leads to Andrew’s question. How come there’s so little enforcement? How come they seem to be able to be out there doing their thing in public, heavily armed, often with AR-15s and other assault-style rifles, when this really is not authorized activity?
Andrew Weissmann: And also, I would say, what does it mean to be a militia? In other words, we know that you can lawfully own a gun under various circumstances, and obviously there’s a right of assembly. So where is the line between sort of the right of assembly and the right of owning a gun and state laws, whether it’s statutory or constitutional state laws that say you can’t be a militia?
Josh Kaplan: I mean, I am the last person to lecture the two of you on constitutional law. My sense from the national security officials I’ve spoken to is one, there’s a hesitancy around what they see as potential either constitutional questions around the First Amendment or simply political backlash that they could receive from Republican politicians if they are going after people who haven’t committed other crimes such as plotting to bomb a mosque. Secondly, I think there is a fear in the FBI that really cracking down on these groups could backfire. And whether or not that’s the right view, I don’t know. But you know, the modern movement was really sparked in the ‘90s by these extremely well-publicized standoffs at Ruby Ridge and at Waco that meant to be law enforcement actions, but as a result, kind of mobilized, really sparked this movement. And I mean, in terms of the sort of activities they do, I mean, just to illustrate the ways that this is different than being in a gun club. I mean, the training is remarkable to watch videos of. It’s a lot of getting together with semi-automatic rifles and practicing storming into a building. Sometimes doing that in pitch black with night vision goggles on.
Mary McCord: Which just to be clear is not defensive tactics, right? That is very much an offensive military maneuver.
Josh Kaplan: Absolutely. Absolutely. And these are often taught by military veterans who learned it while they were in the armed forces. And so close quarters gun combat indoors, that’s another thing they learn a lot. Using a sniper rifle to hit a target from half a mile away, which is, that’s a tough shot. I think the assassination attempt on Trump was about 150 yards.
Mary McCord: Much closer.
Josh Kaplan: That’s much, much closer.
Mary McCord: Yes, much, much closer.
Josh Kaplan: Then there’s the actual activities that they do in the real world, which kind of the standard things are these armed vigilante operations, which the group I was looking at, and I think this is a case for other groups, that’s going to the border and rounding up migrants in these vigilante patrols that the border patrol says is unlawful, although border patrol agents sometimes collaborate with militias that are down there. Similarly, at ballot boxes, trying to crack down on people casting absentee ballots, and during Black Lives Matter protests.
Andrew Weissmann: Josh, that might be a really good place because you started to mention at least the makeup of these groups. It might be useful to talk about who are you seeing in these groups and something that you talk about in really superb piece is how they try to infiltrate, recruit people in law enforcement, not just former military or former law enforcement, but actually people who are currently in law enforcement and also the same question and issue with respect to politicians.
Josh Kaplan: Yeah, I mean, so there are a lot of veterans, there are a lot of former law enforcement, and I do think the ranks of this group are a little wider than someone might expect for a bunch of people out in the woods. It’s a lot of active duty law enforcement working alongside convicted criminals. It’s people who have successful businesses, active duty military, people that work in the medical field. And really, as you said, I mean, this is viewed as an absolutely crucial goal for them to build alliances with active duty law enforcement for, among other reasons, because these are people that put themselves in extremely volatile situations with guns and they want the cops on their side. They want the cops to see them as friends and there are other reasons to that too. But they have a wide variety of tactics, some of which are like business school-esque marketing schemes. You know, they have these brochures that say in all caps with like five exclamation points, we are not a militia. And they give those to police officers. Internally, the leader of this group said, of course, that’s not true. We all know better. We’re a militia. But this was viewed as a branding decision that might make it so that a cop might feel more comfortable joining or supporting the group.
Mary McCord: And wouldn’t you say also a financial because like you showed in your story, and I’ve seen this elsewhere, there’s fundraising online. And so that branding as we are about disaster preparedness and doing food drives and all of these things to sort of normalize their activity, try to fundraise on it, but like you say, the sub rosa, not even that, sub roses, for a militia doing close combat, you know, assault training.
Josh Kaplan: Absolutely, and it helps bring in more people. And it’s a helpful line if a police officer in the group gets in trouble, to be able to say, no, that’s not what we do, we do this and this and that. And these are all true. They do these other things. They do do charity drives, but they’re very cognizant and at a certain level, once you get into the chats that are just the leaders, they’re very explicit. Like these are very, very useful things for us to do.
Andrew Weissmann: Josh, you’ve talked about Facebook and you’ve talked about their ways of communicating. And I know that there was some effort by social media to sort of crack down on this, but if you could talk about how are they communicating?
Josh Kaplan: Yeah, I mean, so a lot of their communications these days are on secure messaging apps. So either Telegram or Signal, which is an encrypted messaging service, which is, you know, it’s less on the open. All these chats that I’m referencing in this story were open only to vetted members of the militia or a lot of the chats were also just for the high level leaders of the militia. I mean, Facebook is a pivotal —
Mary McCord: Yes.
Josh Kaplan: — piece of this whole puzzle. I mean, it was fascinating for me reading these chats that, you know, as scared as they were about the FBI taking the shock and awe approach to arresting people who were participating in the Capitol riot. Really, I think they were more afraid of Facebook. Facebook cracked down on militias at that time, and that was their core recruiting tool. And it wasn’t just that this was just an online group. They then bring people into the real world through Facebook. But that was, as their leader described it, their greatest weapon. And Facebook’s policy hasn’t changed. The group I’m looking at is still, ever since January 6th has been on their list of banned dangerous organizations. But starting in fall 2021, just a few months really after January 6th, they start celebrating that they can recruit on Facebook again and that Facebook, as far as they can tell, has relaxed its controls. And so before long, they were bringing in so many new members that they were really struggling to keep up, as many as 50 new people a day, which does not take very long to become a real force.
Andrew Weissmann: When you’re talking about social media just reminds me and its power and its utility in terms of recruiting and fomenting. I mean, that triggered me.
Mary McCord: Oh, here we go. Trigger Avenue.
Andrew Weissmann: With respect to what we were looking at in the Mueller investigation and the use of foreign actors of social media, particularly Facebook, and it’s way too long a topic for this podcast actually. But to me, it is so interesting to see the ways it’s now been used domestically when my first encounter with it was with respect to foreign actors operating here.
Mary McCord: I think that’s one of the big lessons from January 6 too when you say, Josh, that before that and before all of the criminal prosecutions, a lot of these groups, if they hadn’t been banned by Facebook, they were operating either on Facebook or in other publicly accessible forums. And then, like you said this earlier, they went kind of more underground after January 6 and started actually having some operational security. And so it’s made your job of course, harder. It’s made law enforcement job harder and everyone because when you’re using end to end encrypted apps and things like that, the planning is not as out in the open as it was. As we wrap up, I really do want to focus on what we’ve got coming up here because your piece highlighted things that many of us paid attention to, but not everybody was aware of that happened during the midterms, which was an early thwarted, but otherwise supposed to be a nationwide effort to really have armed individuals out surveilling ballot drop boxes, voting centers, polling places, et cetera. And because of some early crackdowns, that didn’t really take off.
But are you, number one, expecting to see a resurgence of that activity before and on election day this year? And two, what are you thinking about post-election? There’s one other thing I wanna say because there’s another group I work with a lot, Bridging Divides Initiative, and I think you’ve probably talked to them as well, and the Armed Conflict Location Event Dataset, which draws actual activity from the world world, not social media, into trends. And we have seen in this last year, there has been a pretty significant decrease in sort of out of public armed militia activity. But I don’t know about you, but I am worried that could very well end as we get closer to the election and post-election, regardless of who wins. But I’d like your take on that.
Josh Kaplan: Yeah. I mean, it’s hard to predict exactly what form it will take, what will happen in this election, certainly. But I mean, when you look at the midterms, I mean, the conspiracy theories promoted by Trump around this they’re like catnip to militia because it’s this idea that elections are being stolen, our country is in mortal peril, and the authorities are either asleep at the wheel or are complicit. And that’s exactly the sort of rubric where they decide we’re going to step in and do this ourselves through vigilante operations. And as you said, in the midterms, this group, they’re very explicit. We’re going to stake out these ballot boxes and we’re going to intimidate people who are dropping off ballots that we think are committing fraud. Could that happen again? I mean, I think absolutely. This is becoming more of a commonplace thing in contemporary elections. And then it’s the aftermath of the election where things I think could get a lot dicier.
And I think journalists are notoriously bad at predictions. But I think the most important takeaway here is that we’re still too early to know, is January 6 going to be the peak? Is January 6 going to be this kind of high watermark for militia violence? Are we going to look back on it as a prelude to something even more consequential, to some uptick? And there’s a lot of ways this could go. If Trump loses, this disappointment, a lot of experts I’ve spoken to or government officials I’ve spoken to are worried that that could spark violence either in the immediate aftermath of the election, if Trump again refuses to accept the results, or down the line throughout this administration because these things have often historically these cycles of violence have hinged on presidential election results. And then even if Trump wins, he’s promised he’s going to pardon the January 6 rioters. I think he recently said, oh yeah, I might pardon the ones who assaulted police officers too. And that, people I’ve spoken to are afraid that that could amount to a kind of political hunting license, like get out of jail free card for doing violence for the cause. Even if that’s not what he means, there’s a lot of people with a lot of guns who could interpret it that way.
Andrew Weissmann: I have to say the reason that we thought this was such an important topic tied to what we typically do, which is cover primarily the criminal cases against Donald Trump, is that this is because of the concern this is a precursor. We’ve talked a lot about Georgia. We’ve talked a lot about the D.C. criminal cases and that is looking backwards to what happened. That’s what criminal cases are. There’s criminal responsibility for something that happened in the past. But your reporting and the incredible work that Mary does at ICAP is really looking at this forward-looking and thinking about this going forward. I’m going to say something, my last comment on this, which is not optimistic, is when I think about my time in law enforcement, I would read your article and presumably would know a lot of information in addition to that from a whole variety of sources.
But human intelligence and electronic intelligence to try to anticipate what is coming up, but the FBI did such a horrendous job in anticipating January 6th, in spite of clear warning signs that I am just very concerned because the leadership of the FBI is the same. There is a different administration at the Department of Justice, but the FBI needs to have a very different attitude to its mission here to make sure that there isn’t a repeat of January 6th because as Mary outlined, what we’re seeing is conduct that does form at the very least a criminal conspiracy. And as Josh, you’ve talked about some activity when you talked about what they actually are not just talking about doing, but actually doing at the border, for instance, those are real criminal actions. And so in addition to being on the radar screen for law enforcement, there has to be a very different mindset at the FBI if we’re not going to see a repeat and we’re not going to have Christopher Wray, the head of the FBI, after the facts talking to the public saying, gee, we could use your help in identifying people who committed a crime right outside our backyard.
Josh Kaplan: Yeah. The FBI has historically in recent years done a very good job at stopping small sets of people with specific —
Mary McCord: Yes.
Josh Kaplan: — terrorist plots.
Mary McCord: Plots, yes.
Josh Kaplan: And January 6th, you know, militias were at the forefront of that, according to the Department of Justice. They were leading the charge at every major breach of the Capitol’s defenses. But their plans were, they were inchoate, they were haphazard. This was not a master plan that they perfectly executed, but they played a pivotal role. And that sort of, how do we predict that especially if we get the sort of inflection point and the sort of mass mobilization that a figure like Trump can create very quickly if he issues something that people interpret as a call to arms again, that hasn’t been tested since January 6th really, the law enforcement’s capacity to prepare for and respond to that.
Mary McCord: Well, I think that’s all the more reason for you to do the writing and reporting you’re doing, Josh, and us to keep talking about it as well. And, you know, people need to know it’s not lawful. There actually have been some prosecutions at the border of militias there that had no authority and were, you know, detaining migrants unlawfully. But it’s too few and far between and I agree law enforcement needs to be way more proactive this time around to protect everyone’s public safety. But I don’t want anyone to feel like they cannot safely go to the polls or go to ballot drop boxes because there has been so much work done over the last four years to try to make sure that people can safely vote. And that includes what we saw the thwarting of that plan to have surveillance across the country before the midterms. We saw DOJ get involved in one of those cases.
So I’m going to do something I don’t always do and end with my glass half full instead of my glass half empty. We’re smarter now and we know more and let’s hope that helps. Josh, it’s been absolutely wonderful having you on. Really, really admire your reporting not only on this, but obviously on many other topics that are very, very important to us, and maybe we’ll be able to have you back sometime. Maybe we’ll be celebrating post-election that none of this came to pass.
Andrew Weissmann: Josh, thank you again so much and thank you to “ProPublica.” I really feel like it is having such a moment and such an impact on all of our thinking. And it’s just remarkable, the work that you have done. I mean, talk about punching way above its weight in terms of breaking truly important stories for people to know and follow.
Josh Kaplan: Thank you so much. We really appreciate it and really appreciate you having me on.
Mary McCord: Thanks so much to Josh Kaplan, a reporter at “ProPublica” since 2020. His piece is called “Armed and Underground: Inside the Turbulent Secret World of an American Militia.” And we’ll post a link to that in our show notes.
Andrew Weissmann: Quick note for our loyal listeners, we usually record on Tuesdays, but next week we are going to record on Wednesday because we’re expecting a joint filing in the D.C. case before Judge Chutkan that is coming on Tuesday and could be filed anytime up to midnight that night. So we are gonna record first thing Wednesday so that we can cover what’s in that filing and give you our thoughts on that. Thanks for listening. Remember to subscribe, if you so choose, to MSNBC Premium for ad free episodes of “Prosecuting Donald Trump” on Apple Podcasts, as well as exclusive bonus content like our recent conversation on Supreme Court reform.
Mary McCord: To send us a question, you can leave us a voicemail at 917-342-2934 or you can email us at prosecutingtrumpquestions@nbcuni.com. This podcast is produced by Vicki Vergolina. Our associate producer is Janmaris Perez. Our audio engineer is Catherine Anderson. Our head of audio production is Bryson Barnes. Aisha Turner is the executive producer for MSNBC Audio, and Rebecca Kutler is the senior vice president for content strategy at MSNBC.
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