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Among the limitations of writing articles is space. Many online publications have 1500 word limits, in large part because they believe few people have the patience and ability to concentrate beyond that. As regular readers know, I usually exceed that limit, but in so doing, provide greater depth than arbitrary length limits allow, and the number of folks visiting this scruffy little blog would seem to indicate they appreciate that. Even so, I do try to focus on a single theme for each article, which imposes its own limits, so I virtually never cover every possible angle, every possible side.

Such was the case for Capital Coverup 15: To Hell With The Constitution, the tale of how Daniel Goodwyn and Doug Mackey ran afoul our of politicized, weaponized DOJ. The SMM Capital Coverup archive is here.  In response, regular reader/commenter “Doug” had this to say:

Regarding Goodwyn… this is the official DOJ context…
https://www.justice.gov/opa/page/file/1362756/download

Regarding Mackey, again some DOJ context….
https://www.justice.gov/opa/pr/social-media-influencer-charged-election-interference-stemming-voter-disinformation-campaign

I trust these sources for their ‘accuracy’ of the charges being presented against these two defendants. I most certainly do not trust a damn thing from FOX whore Carlson, or your other ‘objective’ sources you cited, to provide real context. Certainly you can cite all those sources if you want to just appeal to separating Americans based on emotional outrage that comprises the usual grievance politics of us vs them.

Goodwyn was at the time a member of the Proud Boys which seems to me rather moots his defense of his ‘simply walking though an open door and not knowing he was trespassing’. But.. he will have his day in court to prove his innocense.

Mackey… well, he will have his day in court as well, albeit I’d be a tad interested how the government draws the line between free speech and the crime of disinformation. I’m guessing this is all about his original intent…. satire/sarcasm or a real attempt to disinform the process. Being a member of the Proud Boys casts a shadow on the idea that his meme was just simply sarcasm.

You never know.. these guys might get assigned a Trump-appointed judge who thinks he owns Trump a favor. Although, a fair number of Trump appointees to the bench seem to actually be trying to be impartial.

I’ll note, first, there is no such crime as “disinformation,” which is most accurately defined as any speech Democrats/Socialists/Communists wish to suppress, and which is indeed free speech under the First Amendment. But let’s follow up on the sources cited by Doug and see how well they make the DOJ’s case. In this article, we’ll focus exclusively on the case against Daniel Goodwyn, who is charged with these crimes:

18 USC 1752: 

(a) Whoever—

(1) knowingly enters or remains in any restricted building or grounds without lawful authority to do so;

(2) knowingly, and with intent to impede or disrupt the orderly conduct of Government business or official functions, engages in disorderly or disruptive conduct in, or within such proximity to, any restricted building or grounds when, or so that, such conduct, in fact, impedes or disrupts the orderly conduct of Government business or official functions;

And:

40 USC 5104: 

(2) Violent entry and disorderly conduct.—An individual or group of individuals may not willfully and knowingly—

(D)utter loud, threatening, or abusive language, or engage in disorderly or disruptive conduct, at any place in the Grounds or in any of the Capitol Buildings with the intent to impede, disrupt, or disturb the orderly conduct of a session of Congress or either House of Congress, or the orderly conduct in that building of a hearing before, or any deliberations of, a committee of Congress or either House of Congress;

(E)obstruct, or impede passage through or within, the Grounds or any of the Capitol Buildings;

(G)parade, demonstrate, or picket in any of the Capitol Buildings.

The “Criminal Complaint,” which is actually an affidavit, appears to mix up and/or confuse the sections of the statute, but I’ve reproduced D, E and G from the statute. By all means, take the links and see for yourself.

Here are the elements of the two offenses:

(1) Goodwyn must have knowingly entered or remained in the capitol without lawful authority to do so.

(2) Goodwyn must have knowingly and with specific intent, actually “impede[ed] or disrupt[ed] the orderly conduct of Government business or official functions.”

And:

(1) Notice that D is virtually identical to (a)(2), with the exception of adding “loud, threatening, or abusive language.”

(2) ”obstruct, or impede passage.”

(3) “parade, demonstrate, or picket.”

Conviction on the first charge requires proof of both elements. Conviction of the second requires proof of any of the elements, not any combination.

These charges are so similar they amount to “charge stacking,” which is throwing any law that might be remotely twisted to fit the defendant’s conduct at him in an attempt to get him to take a plea deal for dismissing one or more charges, or in the hope that if they go to trial, a jury might be tricked into getting a conviction on something, anything, because many people actually believe if a defendant didn’t do anything wrong, they wouldn’t have been arrested, and certainly not prosecuted. And oh yes, gentle readers, that sort of thing does happen all the time.

I’m not going to comment on every sentence in the affidavit—you can read it yourself at the link—but merely point out primary issues, beginning with the redacted name of the FBI agent. In all my years in police work, I never concealed my name from the public; I worked for them, and they were owed that information. Were I so fearful people would know my identity, I shouldn’t have taken the job. Notice that the agent claims the Capitol was “closed to members of the public,” but they do not explain how or why Goodwyn would have had any notice of that. This is an essential element of any trespassing offense, which is the first essential element of 18 USC 1752. What we do know is there were no signs to that effect, the doors were open, hundreds of people had entered before Goodwyn, and no CP Officers tried to stop him as he walked through the open doors, nor does the agent make such claims. The agent goes on to talk about barricades, etc.

The agent notes the building was breached at “shortly after 2:00 p.m.,” and notes “individuals in the crowd” forced their way in, but does not put Goodwyn in that company, nor do they note the time Goodwyn entered, which any competent affidavit would absolutely do, nor does the agent describe the nature of Goodwyn’s entry, which again, is the bare minimum any competent officer would do, unless they had some reason not to do it. Did Goodwyn break in though closed doors?  Was he part of a riotous crowd that broke in?  Did he assault and push his way past police officers?  The agent states Goodwyn exchanged words with one “Antithime Gionet,” but does not characterize this exchange as loud or threatening. They say Goodwyn was asked to leave, called the officer an “oathbreaker,” and “yelled for people to get his badge number.” Again, the agent does not further characterize this exchange. Was Goodwyn threatening, abusive, or speaking so loudly he actually impeded Congress? The agent, oddly, doesn’t say. This is an FBI agent, failing to do basic things officers in local agencies do every day.

The agent fills the rest of the affidavit with what they obviously believe to be inflammatory information such as:

Goodwyn also messaged the same associate using Instagram while he was at the Capitol to tell him, ‘Tell your dad if he doesn’t want his guns I can find some folks who will.’

The agent also enclosed a cryptic text screen shot, and this one as well:

Note the time on that text, obviously written hours after Goodwyn left the Capitol. The agent also claimed Goodwyn is a member of the Proud Boys, which group he said was present and disruptive on Jan. 6, and as proof, added a supposedly supportive Goodwyn tweet from November of 2020.

Remember, gentle readers, an affidavit is a sworn statement of probable cause by an affiant—the officer. It is not proof beyond a reasonable doubt, but accusations, and an offer by the officer to prosecutors and the judge issuing the warrant, of what they believe they can prove. It’s accusations, not proof, and officers are legally bound on pain of perjury to tell the whole story, and to conceal nothing. That said, judges often allow some latitude, expecting the whole story to come out at trial, but this affidavit is unusually devoid of proof of each element.

The agent tells us the Capitol building was off limits on January 6, and alludes to barricades, police, etc, but adds nothing specific to Goodwyn.  Why didn’t he add the time Goodwyn entered, and his manner of entrance? He had the video. He knew Goodwyn entered at 3:32 PM, more than 90 minutes after the building was breached. He also surely knew by that time, CP Officers removed barricades, opened doors and let people in, and hundreds of people already entered, and left, the building before Goodwyn entered. He also knew Goodwyn was not warned or stopped by any officer, and simply walked through the open doors, making no disturbance of any kind.

In other words, the Agent did not want to admit he had no evidence Goodwyn knew he was prohibited from entry. Goodwyn entered exactly as he had surely seen many people enter, and any reasonable person seeing so many CP Officers, none of whom were preventing people from entering, and who actually removed barricades and opened doors for people, would think they were prohibited from entering a public building.

How did Goodwyn, specifically, disrupt anything? The Agent admits Congress was evacuated at “approximately 2:20”? The agent merely infers an unspecified disruption because Goodwyn was briefly present 90+ minutes later. He provides no actions of Goodwyn to fit that element. Any disruption was accomplished long before Goodwyn walked in and was clearly ongoing. If I walk into a building where a large and noisy crowd has been present for 90 minutes, how is my presence contributing to whatever disruptive behavior has long been present, particularly if I walk in, am asked to leave, and turn around and do just that?  It is not enough to observe there was a protest that disrupted things, the agent has to prove how, specifically, Goodwyn broke that part of the law.

Notice also the agent does not say how long Goodwyn was in the building, how far he entered, and is careful not to characterize his actions or words, other than to say he “yelled” a few words as he left. It would not well serve his case to admit Goodwyn was present only 35 seconds and immediately left when asked by an unnamed officer, perhaps the officer at the right in the header photo?  How hard would it be to identify that officer and add his testimony, unless his testimony was that he asked Goodwyn to leave and he did?

Need I say a text message seen by only one person not at the Capitol does not constitute evidence of intent, or any crime? Goodwyn was surely unarmed. If not, the agent surely would be seeking to charge him with crimes related to that. Apparently the agent included the text Goodwyn allegedly wrote about entering for “a couple minutes” as evidence Goodwyn was there, but it arguably cuts against the agent’s case.

Need I also say Goodwyn’s alleged membership in the Proud Boys is included merely to prejudice Goodwyn? No conspiracy is alleged against Goodwyn, so membership in The Proud Boys, or the Daughters of the American Revolution, has no bearing on the alleged crimes, nor does the allegation about his tweet “commenting specifically on the 2020 Presidential election,” though the agent is obviously making an anti-Trump, insurrection inference, trying to establish guilt by association. Commenting on what one believes to be a fraudulent election, particularly on Twitter, is not a crime, nor is supposed membership in any organization. For D/S/Cs membership in BLM, Antifa, or the Communist Party is practically holy, but in this case would also prove nothing.

The agent provides nothing to suggest Goodwyn “obstruct[ed] or imped[ed] passage and the video demonstrates conclusively he did not. The agent also fails to explain how Goodwyn paraded, demonstrated or picketed, and again the video demonstrates he did not.  This is likely an I’m assigned this damn case, so I’ll go through the motions affidavit.

Final Thoughts: As I noted in CC 15, Goodwyn was caught up in the DOJ/FBI’s wide net casting to criminalize any and everyone that was anywhere near the Capitol Building on January 6. Clearly, he was not demonstrating, parading or picketing, nor did he obstruct or impede anyone. His only disruption, all less than 35 seconds of it, consisted of having a very brief exchange with someone, and yelling” at some level of volume, a brief sentence as he was leaving immediately after he was notified he wasn’t welcome. The video does not show anyone reacting to Goodwyn’s supposed disruption, nor did the CP Officer who asked him to leave think it so serious as to require immediate arrest.

I’ll be as plain as possible: I would never have made such an arrest. The first and underlying offense, which is actually trespassing, always requires proof the defendant knew they were not welcome, or if given such notice, refused to leave. The agent provides no such proof, and they have to prove it for each defendant.  What a large crowd may or may not have known isn’t sufficient. Worse, the agent doesn’t say Goodwyn immediately left when told, nor does he say how far Goodwyn entered, or how long he stayed, all bare minimum, essential facts. During my supervisory days, any such report submitted to me by an officer would have been sent back for more, essential, minimal detail. In this case it seems leaving out essential, but inconvenient, details was the point.

As to the rest, where’s the intent to disrupt? How did Goodwyn, standing for seconds in a large crowd, surrounded by Capitol Police Officers, actually disrupt Congress or any business? The agent provides no proof Goodwyn knew Congress was in session, or intended to disrupt anything or anyone, though the agent knows Congress was evacuated more than 90 minutes earlier.

As always, I’m working with the information I have available–absent all possible material, I can always be wrong in ways small or large–but in this case, Doug has kindly provided the affidavit, which as you can see, is wanting.

This, gentle readers, is what professional police officers describe as a “chickenshit arrest,” an arrest no competent cop would make because it just doesn’t cross the lines of criminal intent and criminal conduct. The guy walked in, walked right back out, mouthed off a little as he left, meh. People often do that for the benefit of crowds to try to keep their dignity. Fine; you showed everybody how brave you are.  See yah later. If I arrested everyone that ever mouthed off to me… Police officers, and prosecutors, have to show at least a bit of common sense and discretion.

As I said, this was one of hundreds of political arrests, and the DOJ recently crowed it was going to make a thousand or so more arrests. If so, they’re surely going to have to be of people like Goodwyn. Maybe Goodwyn is a jerk, maybe he deserved to be arrested for past, unknowable crimes, but obviously not for his J6 conduct in the Capitol Building.  Such arrests do not serve justice, but they do serve the J6 narrative, and further alienate Americans from the DOJ, FBI, and federal government in general.

About 70 people on the terrorist watch list have been caught at the southern border since October alone.  One would think–hope–the FBI would have priorities other than misdemeanor trespassing complaints.  As for the prosecutors, their primary job is to see justice is done.  Prosecuting Daniel Goodwyn on these facts is the opposite.

Stop by tomorrow for further analysis of the Mackey case.