John Lauro’s False Claims about Assaults “at the Behest” of Donald Trump

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As I predicted, John Lauro misrepresented the timing of prosecutors’ request for a limited gag on Trump’s violent speech. Lauro presents his response as if DOJ first asked to limit Trump’s violent speech on September 15 in docket entry 57, and not (in sealed form, to which Trump objected, on September 5) at docket 47.

President Trump respectfully submits this response in opposition to the prosecution’s motion to impose unconstitutional prior restraints on President Trump’s political speech. (the “Motion,” Doc. 57, seeking the “Proposed Gag Order,” Doc. 57-2).

Here’s the handy dandy annotated docket I did so NYT journalists could understand the true timing (even if they didn’t note their corrections once they did belatedly understand it).

One reason Lauro’s manufactured misrepresentation about the timing of the motion — September 5 versus September 15 — matters is because he’s now falsely suggesting that DOJ only issued this request after Biden got a bunch of bad polling data.

At bottom, the Proposed Gag Order is nothing more than an obvious attempt by the Biden Administration to unlawfully silence its most prominent political opponent, who has now taken a commanding lead in the polls. Indeed, this very Motion came on the heels of adverse polling for President Biden.

To be sure, Lauro must recognize what rank bullshit this claim is, given that he doesn’t cite the polling in question (which probably is meant to invoke the outlier WaPo poll of this week). This is designed to work for the Federalist and Fox set, not for Judge Chutkan.

But the timing matters for another reason.

Probably because Lauro wants to set up a future argument balancing election-related speech against defendant-related restrictions, he suggests DOJ is doing this primarily to silence criticism of Jack Smith, and not to protect witnesses, prosecutors, and Judge Chutkan herself.

[T]he prosecution complains that President Trump’s political statements “undermine confidence in the criminal justice system,” which it asserts somehow justifies the Proposed Gag Order. Motion at 2, 6, 8, 15. The prosecution cites no authority in support of this bizarre claim. Nor can it. As the Supreme Court has repeatedly emphasized, “speech critical of the exercise of the State’s power lies at the very center of the First Amendment.” Gentile, 501 U.S. at 1034; New York Times Co. v. Sullivan, 376 U.S. 254, 273 (1964) (“Criticism of their official conduct does not lose its constitutional protection merely because it is effective criticism and hence diminishes their official reputations.”). This includes criticism of the Court and the Special Counsel.

When Lauro finally gets around to dealing with the violent threats Trump has issued, he ignores the bulk of the examples DOJ provided, instead focusing exclusively on the one Trump’s team had already addressed.

[N]o witness has suggested that he or she will not testify because of anything President Trump has said. To the contrary, witnesses appear eager to share their expected testimony with the media and will undoubtedly testify at a potential trial, if called to do so.7 Nor has any witness suggested that President Trump’s protected statements have “influenc[ed] [his or her] testimony,” as the prosecution baselessly suggests. Motion at 15.

This is entirely unsurprising, as President Trump has never called for any improper or unlawful action. Quite the opposite, the prosecution’s cited posts show that President Trump intends to redress the unfairness of this proceeding through legitimate means. This includes, for example, filing motions with the Court—a form of relief that President Trump has every right to pursue and talk about. This is a far cry from the type of “true threat” the prosecution would need to show to justify a prior restraint. Virginia v. Black, 538 U.S. 343, 360 (2003) (“Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.”).8

Unable to identify any instance where President Trump uttered any threat, the prosecution points to others, claiming President Trump “knows that when he publicly attacks individuals and institutions, he inspires others to perpetrate threats and harassment against his targets.” Motion at 3. Again, the prosecution offers no evidence of any causal connection between his speech and the alleged unlawful acts of others to support this meritless claim.

7 Two “potential witnesses” the prosecution does not want President Trump speaking about, for example, are former Attorney General Bill Barr and former Vice President Mike Pence. Both have written books about their tenure with President Trump and the latter is currently running for president. See, e.g., Geoff Bennett, Bill Barr: Trump Committed a “Grave Wrongdoing” in Jan. 6 Case, PBS NEWSHOUR, Aug. 3, 2023. Neither shies away from a hearty public debate with President Trump. Both were at the very top of government and it is absurd to think that they would be intimidated by social media posts. Others the prosecution identifies as “harassed,” are likewise current and former government officials who have made politics, for all its discord and discourse, a large part of their lives.

8 The prosecution once again cites President Trump’s August 4, 2023, Truth Social post; however, as previously explained, Doc. 14 at 7–8 n.8, that post did not concern this case. See Nick Robertson, Trump campaign defends threatening social media posts as free speech, The Hill (August 5, 2023) (quoting a Trump campaign statement that “[t]he Truth post cited is the definition of political speech, and was in response to the RINO, China-loving, dishonest special interest groups and Super PACs, like the ones funded by the Koch brothers and the Club for No Growth.”).

In today’s environment, this Court could easily take judicial notice that “[t]he language of the political arena . . . is often vituperative, abusive, and inexact,” Watts, 394 U.S. at 708 (citations omitted), and even “very crude [or] offensive method[s] of stating a political opposition” are not true threats. Id.

Finally, the prosecution raised (and President Trump addressed), this same post in connection with its motion for a protective order. Doc. 14 at 7–8 n.8. Despite having ample opportunity to dispute President Trump’s explanation, including in a reply brief, Doc. 15, and at oral argument, Doc. 29, the prosecution chose not to do so. Now, the prosecution once again tries to revive this debunked position in support of its Motion. The Court should accord such unpersuasive arguments no weight. [my emphasis]

Lauro ignores the multiple cases, cited in prosecutors’ filing, where people told Trump directly that his incitement had ratcheted up threats against people like Jeff Duncan, Chris Krebs, and Ruby Freeman. He ignores prosecutors’ citation of Trump bragging about the way his followers respond to Trump.

As he acknowledged in a televised town hall on May 10, 2023, his supporters listen to him “like no one else.”

Perhaps more importantly, Lauro ignores something he has already ignored, in his reply to his own motion to recuse Tanya Chutkan.

As I noted, by filing a motion to recuse based off things Judge Chutkan said when January 6 defendants blamed Trump for their actions, Trump invited prosecutors to lay out the many more times defendants had done just that. Not only did prosecutors provide eight other examples where defendants already sentenced by Chutkan blamed Trump for their actions, DOJ laid out something that Robert Palmer said of his own actions on January 6: That he went to the Capitol “at the behest” of Trump and took action to prevent the certification of the vote because of the false claims Trump had made.

On December 17, 2021, the Court sentenced Robert Scott Palmer, an individual who, on January 6, 2021, after attending the former president’s remarks at the Ellipse and while wearing a “Florida for Trump” hat, “threw a wooden plank at” police officers; “sprayed the contents of a fire extinguisher at the officers until it was empty, and then threw the fire extinguisher” at them; and “assaulted another group of law enforcement officers with a 4-5 foot pole,” which he threw “like a spear at the officers.” United States v. Palmer, 21-cr-328, ECF 30, at 10, 2 (Govt. Sentencing Mem.); id., ECF No. 23, at 3 (D.D.C. Oct. 4, 2021) (Statement of Offense). Palmer was charged with, and pled guilty to, assaulting, resisting, or impeding certain officers using a dangerous weapon, in violation of 18 U.S.C. §§ 111(a) and (b). Id., ECF No. 24 at 1 (D.D.C. Oct. 4, 2021) (Plea Agreement).

In a sentencing memorandum filed before his hearing, Palmer’s attorney asserted that he had gone to the Capitol “at the behest of” the defendant and had been convinced by individuals, including the defendant, that the election was fraudulent and that Palmer needed to take action to stop the presidential transition. Id., ECF No. 31 at 8 (D.D.C. Dec. 13, 2021) (Def. Sentencing Mem.). [my emphasis]

John Lauro is lying when he claims that there is “no evidence of any causal connection between his speech and the alleged unlawful acts of others.” Lauro himself elicited that evidence. And the evidence is that, according to Robert Palmer, because of the false claims Trump and others told about the election, Palmer went to the Capitol on January 6 “at the behest of” Donald Trump, and serially assaulted several cops.

Trump’s reply ignored the substance of Palmer’s claims; it even dropped all mention of the Palmer case. Trump thereby left uncontested DOJ’s representation of Palmer’s claim that he did what he did “at the behest” of Trump.

Thus far, in the case against Trump, DOJ has been rather reserved about the dockets and dockets full of evidence that rioters believed they had been ordered by Trump to do what they did. The indictment itself shows that Trump’s several days of pressure — including his 2:24PM tweet — resulted in direct threats from rioters to Pence.

111. At 2:24 p.m., after advisors had left the Defendant alone in his dining room, the Defendant issued a Tweet intended to further delay and obstruct the certification: “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!”

112. One minute later, at 2:25 p.m., the United States Secret Service was forced to evacuate the Vice President to a secure location.

113. At the Capitol, throughout the afternoon, members of the crowd chanted, “Hang Mike Pence!”; “Where is Pence? Bring him out!”; and “Traitor Pence!”

Yet, DOJ has not made it anywhere explicit that evidence in the case of dozens, if not hundreds, of Jnauary 6 defendants make it clear that these threats to Pence arose directly from Trump’s statements. And in their motion for a gag order, DOJ did not tie the threats against Pence Trump elicited on January 6 to one he has made recently that they included in the motion.

But because John Lauro made it an issue in his recusal motion, DOJ has provided crystal clear evidence of one case where someone believed he was taking action — violent assaults against cops — “at the behest of Trump.”

John Lauro wanted it this way — he wanted to create the false illusion that whatever gag Chutkan might impose came only after he accused her of being a biased Black Woman. But in the process, he himself elicited proof that Trump’s statements to lead directly to violence.

On Recusal, Give Trump the Evidentiary Hearing He Demands!

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There are a number of fairly insane claims made in Trump’s reply seeking Judge Tanya Chutkan’s recusal.

Trump scolds that an impartial judge should express no opinion.

2 Consistent with the presumption of innocence and due process, an impartial court would ordinarily avoid stating any opinion regarding a third party’s guilt or innocence until that party has received an opportunity to present a defense. See United States v. Microsoft, 253 F.3d 34, 114 (D.C. Cir. 2001).

But that is precisely what Chutkan did when she said she “I have my opinions, but they are not relevant:” she didn’t express her opinion. By Trump’s own definition, Chutkan is an impartial judge!

Trump makes a very narrow argument that the eight additional defendants Chutkan sentenced who attributed their actions to Trump, mentioned by the prosecution, did not say Trump directed them to engage in violence, enter the Capitol, or interfere with the proceedings (I included that footnote in this post).

1 None of the excerpts cited in footnote 1 of the Response claim that President Trump directed or encouraged anyone to enter the Capitol, undertake violence, or interfere with proceedings at the Capitol. Of course, no such evidence exists. The defendants in these other cases obviously sought to explain the circumstances of their conduct, but that had no relevance to whether President Trump should be charged. That issue was never before the Court prior to this case. Therefore, the only reasonable conclusion—and the very one that the prosecution consciously avoids—is that Judge Chutkan formed her disqualifying opinions from information outside of the courtroom.

Even ignoring that several of them did say Trump told them to go to the Capitol, that’s a distraction. As prosecutors have shown, one of the two defendants that Trump himself raised, Robert Palmer, literally said that he went to the Capitol “at the behest” of Trump, where — because he had been persuaded by Trump and others he needed to prevent the transition of power — he proceeded to serially assault cops. Trump simply ignores that one of the two cases he himself raised did precisely that.

But the most batshit claim — one that I hope backfires wildly — is the claim that when Judge Chutkan said, “I’ve seen video” during the Christine Priola sentencing, there was no video in evidence before her.

Similarly, Judge Chutkan’s statement that President Trump “remains free to this day,” Motion, Ex. A at 29:17–30:3, had no factual or legal relevance to the matter before her. That conclusion was formed, according to Judge Chutkan, based upon unspecified “videotapes” and “footage” that the prosecution has not established were in evidence and appear not to be. Id. (“I see the videotapes. I see the footage of the flags and the signs that people were carrying and the hats they were wearing and the garb.”). But even if they were in the record of the Priola case, they could hardly support a conclusion that President Trump should be charged.

In addition to the sentencing memo DOJ submitted for Priola, they formally noticed the following videos:

1. Government Exhibit 1 is a video approximately 26 seconds in length that shows the crowd behind the barricades on the east side of the Capitol. People in the crowd can be heard chanting, “Stop the steal.” Priola’s sign can be seen in the crowd.

2. Government Exhibit 2 is a video approximately 1 minute and 23 seconds in length that shows the rioters outside the East Rotunda (Columbus) doors, including some rioters reacting to pepper gas. Priola and her sign can be seen while she is standing about 15- 20 feet from the entrance. People in the crowd can be heard chanting, “USA, USA.”1

3. Government Exhibit 3 is a video approximately 3 minutes in length that shows rioters outside the East Rotunda doors attempting to enter the Capitol building. Priola’s sign can be seen in the crowd outside. The video also shows the doors being forced open from the inside and Priola (now inside the building) talking to another rioter on camera and walking down the corridor. People in the crowd can be heard chanting, “Who’s our President? Trump!”; yelling, “Tear it down”; and later chanting, “Defend your Constitution. Defend your liberty.”

4. Government Exhibit 4 is a video approximately 26 seconds in length that shows the breach of the East Rotunda doors. Priola’s sign can be seen outside the building through the open doors.

5. Government Exhibit 5 is a video approximately 2 minutes and 30 seconds in length that shows the rioters breaching the East Rotunda doors. Priola can be seen with her sign soon after she enters the building.

6. Government Exhibit 72 is a video approximately 1 minutes and 28 seconds in length that shows the rioters, including Priola, walking down the east corridor inside the Capitol Building. It also shows Priola holding her sign up to one of the windows and tapping on the glass to get the attentions of rioters outside. Rioters can be heard chanting, “Defend your Constitution. Defend your liberty.” and “Who’s house? Our house.”

7. Government Exhibit 8 is a video approximately 14 seconds in length that shows rioters, including Priola, on the Senate Chamber floor. Priola can be seen and heard talking on her cell phone.

1 The government’s sentencing memorandum incorrectly stated that the crowd could be heard chanting “Stop the steal” and “Who’s our President? Trump!” during this video. ECF No. 56 at 10. [my emphasis]

More importantly, there’s all the other video Chutkan had seen by October 28, 2022.

Do you know how insane it is for someone to tell Judge Tanya Chutkan that by October 28, 2022, the date of Priola’s sentencing, she had not seen video evidence on which she could form an opinion about how central Trump was to January 6? Do you have any idea how many hundreds of hours of video DC judges like Chutkan, pertaining to Priola in Chutkan’s case, but also pertaining to the series of assault defendants whose detention proceedings she had presided over and defendants sentenced before Priola, had seen by that point?

Trump made the argument that by October 28, 2022, Judge Tanya Chutkan had not seen sufficient evidence about January 6 to form an opinion about Trump’s role in the attack. If I were Judge Chutkan, I’d order the hearing Trump claims he wants, refuse to waive his appearance, and force him, his attorneys, and the journalists only beginning to pay attention to January 6 because Trump has been charged to review the video of the attack she had sat through by October 2022.

As one example, Chutkan presided over several spectacular assault cases, including one where a former Marine who had attended the TCF Center mob in Detroit after the election brought his hockey stick to the Capitol and used it to beat a cop, one of the many spectacularly brutal assaults that happened that day.

Trump claims that during the year and a half of January 6 cases she had presided over by October 28, 2022, Chutkan had not seen any evidence from which she could form an opinion about the event. By all means, let’s put the evidence she had seen in the record.

By Asking for Tanya Chutkan’s Recusal, Trump Invited a Lesson in His Centrality to January 6

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Trump’s motion for Tanya Chutkan to recuse was not designed to work. Rather, it was designed as a messaging vehicle, to establish the basis for Trump to claim that a Black Judge was biased against him so he can better use it to discredit rule of law and as a campaign and fundraising vehicle.

Because Trump’s motion was primarily a messaging vehicle, the — legally apt — messaging with which DOJ responded is of some interest.

Invited to do so by Trump, DOJ laid out how central Trump is to the thousand other January 6 prosecutions.

Invited to do so by Trump, for example, DOJ provided eight other times — in addition to the cases of Robert Palmer and Christine Priola cited in the recusal motion — where defendants before Judge Chutkan have implicated Trump in their actions.

This Court, like all courts in this District, has presided over dozens of criminal cases related to January 6. And this Court, like all courts in this District, gained knowledge about the events of January 6 and insight about the persons charged based on its daily administration of those cases. For instance, the Court learned that numerous individuals charged with January 6 crimes attempted to minimize their actions and spread blame to others, including to defendant Trump and to the mob that each rioter joined at the Capitol. Indeed, the Court regularly heard variations of such arguments from other defendants, in the form of sentencing memoranda and allocutions, before similar claims were made by the defendants in the two sentencing hearings on which the defendant bases his claim of bias.1

1 See United States v. Bauer, 21-cr-49, ECF No. 38 at 3 (D.D.C. Oct. 6, 2021) (Def. Sentencing Mem.) (arguing that Bauer “only decided to turn from the Ellipse and head towards the Capitol when then-President Trump directed the crowd to proceed in that direction” and then followed the group); United States v. Hemenway, 21-cr-49, ECF No. 39 at 2 (D.D.C. Oct. 6, 2021) (Def. Sentencing Mem.) (arguing that Hemenway decided “to take part in the political rally on the Ellipse” and got “caught up in the group mentality of the crowd that entered the Capitol”); United States v. Bissey, 21-cr-165, ECF No. 29 at 17 (D.D.C. Oct. 12, 2021) (Sentencing Tr.) (defense attorney arguing that Bissey had minimal role on January 6 and “did not come to D.C. with any intention other than supporting her president”); United States v. Miller, 21-cr-226, ECF No. 52 at 4 (D.D.C. Dec. 8, 2021) (Def. Sentencing Mem.) (arguing that “[Miller] had absolutely no expectation or desire to overthrow the government. Rather, she was supporting the President in what he claimed were legitimate efforts to claim victory in the Presidential election.”); United States v. Perretta, 21-cr-539, ECF No. 55 at 2 (D.D.C. Jan. 4, 2022) (Def. Sentencing Mem.) (arguing that Perretta “attended the ‘Save America’ political rally, where then-President Trump encouraged listeners to march to the Capitol to make their voices heard” and then went to the Capitol with thousands of other individuals from the Ellipse); United States v. Ehmke, 21-cr-29, ECF No. 30 at 2-5, 8-9 (D.D.C. May 6, 2022) (Def. Sentencing Mem.) (arguing that Ehmke had a minor role and that others, “including the former president, the rally’s organizers and speakers, and other nefarious, organized groups . . . arguably bear much greater responsibility”); United States v. Ponder, 21-cr-259, ECF No. 58 at 21-22 (D.D.C. Jul. 26, 2022) (Sentencing Tr.) (Ponder asserting that he marched from Ellipse to Capitol “with the intentions on a peaceful protest. However, things had spiraled out of control” and he “got caught up in it.”); United States v. Cortez, 21-cr-317, ECF No. 80 at 38 (D.D.C. Aug. 31, 2022) (Sentencing Tr.) (defense attorney arguing that Cortez was “being told these things by the president, you need to save your country, and he’s trying to do something right”). [my emphasis]

Again, these are just defendants Judge Chutkan has already sentenced. The footnote conveys how routine it is for defendants, before every single DC judge, to blame Trump for their role in assaulting the Capitol.

Invited to do so by Trump, DOJ laid out how Christine Priola wore Trump merch as she surged through the East door alongside the Oath Keepers and Joe Biggs, and then helped occupy the Senate floor on January 6.

On October 28, 2022, the Court sentenced Christine Priola, who on January 6, 2021, surged with other rioters into the Capitol and onto the Senate floor, “carrying a large sign reading, ‘WE THE PEOPLE TAKE BACK OUR COUNTRY’ on one side and ‘THE CHILDREN CRY OUT FOR JUSTICE’ on the other,” United States v. Priola, 22-cr-242, ECF No. 65 at 3 (D.D.C. July 26, 2022) (Statement of Offense), and wearing pants with the phrase, “MAKE AMERICA GREAT AGAIN,” id., ECF No. 56 at 13, 16 (D.D.C. Oct. 21, 2022) (Govt. Sentencing Mem.). Priola was charged with, and pled guilty to, obstructing an official proceeding, in violation of 18 U.S.C. § 1512(c)(2). Id., ECF No. 66 at 2 (D.D.C. Feb. 21, 2023) (Sentencing Tr.)

In her sentencing memorandum, Priola, too, laid the groundwork for spreading the blame to others, noting that “[a]fter the presidential election, Donald Trump . . . and his inner circle began spreading the word that the election was ‘stolen’ from him by Democrats and others,” with claims “made on media sources, as well as by the President himself, that the election system had been corrupted and that the integrity of the election should be questioned.” Id., ECF No. 57 at 3 (D.D.C. Oct. 21, 2022) (Def. Sentencing Mem.). Priola’s sentencing memorandum then sought leniency for Priola in part because she “played no role of importance” at the Capitol, and had she not been there, “there wouldn’t be one change in what transpired.” Id. at 14.

At her sentencing hearing, Priola likewise explained that, at the time of her criminal conduct, she believed that the election had been stolen and that “certain politicians or groups have, like, taken over things that maybe weren’t supposed to be.” Id., ECF No. 66 at 26 (D.D.C. Feb. 21, 2023) (Sentencing Tr.). [my emphasis]

Because Priola raised Trump in her sentencing submission, DOJ explained, binding precedent required Chutkan to respond to it.

Similarly, on Trump’s invitation, DOJ laid out how Palmer claimed he went to the Capitol “at the behest of” Trump where, while wearing a Florida for Trump hat, he serially assaulted cops defending the Capitol.

On December 17, 2021, the Court sentenced Robert Scott Palmer, an individual who, on January 6, 2021, after attending the former president’s remarks at the Ellipse and while wearing a “Florida for Trump” hat, “threw a wooden plank at” police officers; “sprayed the contents of a fire extinguisher at the officers until it was empty, and then threw the fire extinguisher” at them; and “assaulted another group of law enforcement officers with a 4-5 foot pole,” which he threw “like a spear at the officers.” United States v. Palmer, 21-cr-328, ECF 30, at 10, 2 (Govt. Sentencing Mem.); id., ECF No. 23, at 3 (D.D.C. Oct. 4, 2021) (Statement of Offense). Palmer was charged with, and pled guilty to, assaulting, resisting, or impeding certain officers using a dangerous weapon, in violation of 18 U.S.C. §§ 111(a) and (b). Id., ECF No. 24 at 1 (D.D.C. Oct. 4, 2021) (Plea Agreement).

In a sentencing memorandum filed before his hearing, Palmer’s attorney asserted that he had gone to the Capitol “at the behest of” the defendant and had been convinced by individuals, including the defendant, that the election was fraudulent and that Palmer needed to take action to stop the presidential transition. Id., ECF No. 31 at 8 (D.D.C. Dec. 13, 2021) (Def. Sentencing Mem.). Two paragraphs later in the memorandum, Palmer’s attorney argued that the Court should, as a mitigating factor, “consider that the riot almost surely would not have occurred but for the financing and organization that was conducted by persons unconnected to Mr. Palmer who will likely never be held responsible for their relevant conduct.” See id. at 8-9. [my emphasis]

Because Palmer blamed Trump for his actions in his sentencing package, DOJ explained, binding precedent required Chutkan to respond to it.

Even before it laid out how the claims of defendants obligated Chutkan to address their claims that Trump caused them to do what they did, DOJ laid out the precedents that apply to intrajudicial comments about related cases, a much higher standard for recusal than the precedents Trump invoked. At Trump’s invitation, then, DOJ cited Watergate, where the DC Circuit did not find that Judge John Sirica should have recused from the Haldeman trial because he had, during the burglars’ trial, correctly judged that the conspiracy extended well beyond those men.

[T]he Supreme Court has held that where a recusal motion rests on statements made in a judicial setting and reflect “opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings,” recusal will be warranted “only in the rarest circumstances” where the comments “display a deepseated favoritism or antagonism that would make fair judgment impossible.” Id. at 555. After all, “opinions held by judges as a result of what they learned in earlier proceedings” are “normal and proper,” and “not subject to deprecatory characterization as ‘bias’ or ‘prejudice.’” Id. at 551; see Belue v. Leventhal, 640 F.3d 567, 573 (4th Cir. 2011) (“The high bar set by Liteky for predispositional recusals makes good sense. If it were otherwise—if strong views on a matter were disqualifying—then a judge would hardly have the freedom to be a judge.”).

This higher standard applies equally when a court’s intrajudicial statements were made in separate proceedings, including proceedings in which the defendant was not a party. The D.C. Circuit made this clear in its decision in United States v. Haldeman, 559 F.2d 31 (D.C. Cir. 1976) (en banc). There, defendants sought recusal of the judge presiding over numerous, separate Watergate-related matters, in part based on statements the judge had made during an earlier, separate trial in which, among other things, he “expressed a belief that criminal liability extended beyond the seven persons there charged.” Id. at 131-32 & n.293. The Circuit found that recusal was not warranted because the grounds for the claim were “judicial acts” including “prior judicial rulings . . . or the exercise of related judicial functions.” Id. at 133-34. The Circuit further stated that the “disabling prejudice” necessary for recusal “cannot be extracted from dignified though persistent judicial efforts to bring everyone responsible for Watergate to book.” Id.

At Trump’s invitation, DOJ likened the January 6 rioters to Watergate burglars directed by those trying to help the President retain power.

And, at Trump’s invitation, DOJ recalled a more recent DC Circuit opinion finding that far stronger intrajudicial statements also did not require recusal. At Trump’s invitation, DOJ recalled how Trump’s people had started selling out the country even before being sworn in.

On the other side of the ledger are countless cases in which recusal based on judicial comments was deemed unwarranted—even based on comments that, unlike this Court’s comments on which the defendant bases his motion, directly criticize a defendant. For instance, recently in this District, a judge told a defendant at a hearing, “Arguably, you sold your country out. . . . I’m not hiding my disgust, my disdain for this criminal offense.” In re Flynn, 973 F.3d 74, 83 (D.C. Cir. 2020) (en banc) (per curiam). The D.C. Circuit found that these statements did not meet the Liteky test, stating, “the District Judge was not simply holding forth on his opinions; rather, each of the statements to which Petitioner objects was plainly made in the course of formal judicial proceedings over which he presided—not in some other context.”

Trump wants his January 6 trial to be messaging and fundraising vehicle.

But that may serve as little more than an invitation for DOJ to lay out just how deeply implicated he is in the entire assault on the Capitol.

Todd Blanche Confuses Aileen Cannon’s Prior Trump Reversal with Tanya Chutkan’s Individualized Guilt

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John Lauro is the Trump lawyer who submitted and signed the motion for recusal in Trump’s January 6 case, and so virtually all commentators are attributing the motion to him. But Todd Blanche also appears on the document.

That means one of Trump’s lawyers from the stolen documents case, in which Aileen Cannon — confirmed in the period after Trump lost the election and cozy with Leonard Leo — chose not to recuse herself after a blistering reversal over her earlier decision to butt in last summer, in which Aileen Cannon has done nothing (nothing public, at least) to preserve the Sixth Amendment rights of Trump’s co-defendants, but has instead served the interests of the Trump-paid lawyers representing them, has remained silent about any conflict in that case but signed onto a claim of conflict with Tanya Chutkan.

There is an overwhelming public interest in ensuring the perceived fairness of these proceedings. In a highly charged political season, naturally all Americans, and in fact, the entire world, are observing these proceedings closely. Only if this trial is administered by a judge who appears entirely impartial could the public ever accept the outcome as justice.

Todd Blanche’s willingness to sign onto this motion only underscores the bad faith of it.

The substance of the claimed conflict is remarkably thin: In the sentencing hearings of Robert Palmer and Christine Priola, Chutkan said something about those who planned the riot. Between the two hearings — the first in December 2021 and the second in October 2022 — Trump’s lawyers claim they show that Chutkan has already formed an opinion about Trump’s guilt, even while they acknowledge that Chutkan’s language addresses claims of incitement with which Trump has not been charged.

These are cherry picks. From Palmer’s for example, Trump’s lawyers found a line in which Chutkan said she had opinions about whether those who planned the riot should be charged, even while she said her opinions are not relevant.

He went to the Capitol because, despite election results which were clear-cut, despite the fact that multiple court challenges all over the country had rejected every single one of the challenges to the election, Mr. Palmer didn’t like the result. He didn’t like the result, and he didn’t want the transition of power to take place because his guy lost. And it is true, Mr. Palmer — you have made a very good point, one that has been made before — that the people who exhorted you and encouraged you and rallied you to go and take action and to fight have not been charged. That is not this court’s position. I don’t charge anybody. I don’t negotiate plea offers. I don’t make charging decisions. I sentence people who have pleaded guilty or have been convicted. The issue of who has or has not been charged is not before me. I don’t have any influence on that. I have my opinions, but they are not relevant.

***

So you have a point, that the people who may be the people who planned this and funded it and encouraged it haven’t been charged, but that’s not a reason for you to get a lower sentence.

This is a colloquy that goes on in many January 6 sentencing hearings, because many defendants — up to and including Enrique Tarrio and Joe Biggs — like to blame Trump for their woes. After that happens, whatever judge is presiding, whether appointed by a Republican or Democrat, notes that people are still responsible for their own actions.

This is, in fact, a pretty mild version, even among some Republican appointees.

But Trump’s team ignored Judge Chutkan’s more general commentary about how everyone should treat others with more humanity.

I feel certain that if people would expose themselves to a variety of opinions and sources of information, we might not have had January 6th. But people get very siloed and listen to an echo chamber of information and opinion, and you get a very warped view of what’s really going on in the world; and that may be part of it, but in doing so, you fail to see other people as human beings. And that is one of the things I see here as a judge, is there is a failure to acknowledge other people’s humanity.

From the Priola sentencing, Trump’s lawyers focused on Chutkan’s observation that the person to whom rioters were loyal remained free.

[T]he people who mobbed that Capitol were there in fealty, in loyalty, to one man — not to the Constitution, of which most of the people who come before me seem woefully ignorant; not to the ideals of this country; and not to the principles of democracy. It’s a blind loyalty to one person who, by the way, remains free to this day.

This is remarkably thin gruel on which to hang a claim that Chutkan is biased against Trump but not Trump appointed Judges Dabney Friedrich or Tim Kelly, who’ve engaged in similar colloquies.

And it seems tactical. It was coming at some point, but Trump’s team has, after remaining silent for 42 days after this case was assigned to Chutkan, suddenly asked her to assess her own biases in expedited fashion, before ruling on the pending motion about Trump’s own threats against Judge Chutkan and others.

Additionally, given the overriding public interest in ensuring the appearance of fairness in this proceeding, President Trump requests the Court consider this Motion on an expedited basis and, pending resolution, withhold rulings on any other pending motion.

This is a tactical and cynical motion. And Todd Blanche’s participation in it makes it crystal clear that Trump doesn’t give a flying rat’s ass about the bias of Cannon or any appearance of bias they can wring out of Chutkan’s prior comments.

Rather, they’re doing this to claim that her future attempts to preserve the integrity of this proceeding — including to minimize death threats from Trump’s own supporters — instead itself evinces bias on her part.

Update: Here’s the full Priola sentencing transcript.

The Federalism that Mark Meadows Wants the 11th Circuit to Reverse

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Mark Meadows immediately appealed the decision Judge Steve Jones issued Friday not to remove the Georgia prosecution of the former White House Chief of Staff to federal court, so the decision will not be final until at least one right wing court has had a chance to reverse it.

The most important decision from the 11th Circuit and SCOTUS in the meantime will be whether to stay the proceedings in Georgia as this appeal goes forward, which is not supposed to happen under removal, but the appeals courts may view the appeal as something different procedurally.

For now, then, I want to map out how Jones unwound the difficult issues of federalism and separation of powers to get to his decision, because they lie at the core of both January 6-related prosecutions of Trump. This is a decision that weighs the supremacy of federalism over the state, the reservation to states to conduct elections, and the separation of powers between the executive and the legislative. Meadows’ appeal is likely to be the second or third time SCOTUS gets to weigh in on Trump’s conduct on January 6 (the first being his attempt to use Executive Privilege to prevent the Archives from sharing documents with the January 6 Committee, another being appeals of the civil lawsuits out of DC), so the logic Jones applied here may influence later criminal proceedings against Trump and others.

After laying out that 28 U.S.C. § 1442(a)(1) is one exception to the precedent that the federal government does not intervene in state prosecutions, Judge Jones noted that the standard for removal is low. Meadows doesn’t need to prove his case; he needs to prove that the prosecution is “closely connected with” his role as a federal officer.

The Supreme Court has cautioned that “an airtight case on the merits in order to show the required causal connection” is not required and that courts are to “credit” the movant’s “theory of the case” for the elements of the jurisdictional inquiry.5 Jefferson Cnty. v. Acker, 527 U.S. 423, 432 (1999). “The point is only that the officer should have to identify as the gravamen of the suit an act that was, if not required by, at least closely connected with, the performance of his official duties.” Id. at 447 (Scalia, J., dissenting).

Having acknowledged the standard is low, Jones nevertheless found that Meadows had not met that bar, because the actions he is accused of taking as part of the RICO conspiracy served the ultimate goal of affecting state election activities and procedures on behalf of the Trump campaign.

The Court concludes that Meadows has not met even the “quite low” threshold for removal. Again, what the Court must decide for purposes of federal officer removal is whether the actions Meadows took as a participant in the alleged enterprise (the charged conduct) were related to his federal role as White House Chief of Staff. The evidence adduced at the hearing establishes that the actions at the heart of the State’s charges against Meadows were taken on behalf of the Trump campaign with an ultimate goal of affecting state election activities and procedures. Meadows himself testified that working for the Trump campaign would be outside the scope of a White House Chief of Staff. Hearing Tr. 113:2–6.

Based on this formula — that Meadows’ activities were taken on behalf of the Trump campaign with the goal of affecting state election activities — Jones distinguished Meadows’ activities from his job as Chief of Staff in two ways.

First, while Meadows made expansive claims about his role as Chief of Staff that he attempted to use to claim he had to set up the meetings Trump had with Georgia (and other state) officials, Jones noted that both sides agreed the Hatch Act prohibited White House employees, including Meadows, from using his official position to engage in election activity.

Meadows also testified that as White House Chief of Staff he was bound by the Hatch Act11 and he could not engage in political activity. Hearing Tr. 39:7– 25; 135:21–136:5. As discussed more fully below, the Hatch Act prohibits “an employee” from “us[ing] his official authority or influence for the purpose of affecting the result of an election.” 5 U.S.C. § 2732(a)(1). This includes, “[u]sing his or her official title while participating in political activity.” 5 C.F.R. § 734.302(b)(2). And political activity is defined as, “activity directed toward the success or failure of a political party, candidate for partisan political office, or partisan political group.” Id. § 734.101.

The Court finds that the color of the Office of the White House Chief of Staff did not include working with or working for the Trump campaign, except for simply coordinating the President’s schedule, traveling with the President to his campaign events, and redirecting communications to the campaign. Thus, consistent with his testimony and the federal statutes and regulations, engaging in political activities is exceeds the outer limits of the Office of the White House Chief of Staff.

[snip]

When questioned about the scope of his authority, Meadows was unable to explain the limits of his authority, other than his inability to stump for the President or work onbehalf of the campaign. Hearing Tr. 111:12–113:6. The Court finds that Meadows did not adequately convey the outer limits of his authority, and thus, the Court gives that testimony less weight.12

12 In this case, Meadows was the main witness presenting testimony for his case. Thus, the Court must determine the appropriate amount of weight to assign to his testimony when evaluating it, the same as it does any other witness in an evidentiary hearing. However, given the nature of the motion, and the pending criminal proceedings the Court makes these decisions with great caution. The determinations here do not go to Meadows’s propensity to be truthful as a general matter. However, the Court cannot undertake the task assigned by 28 U.S.C. § 1455(b)(5) without assigning the appropriate weight to the testimony.

[snip]

The Hatch Act prohibits executive branch employees from “us[ing] [their] official authority or influence for the purpose of interfering with or affecting the result of an election[.]” 5 U.S.C. § 7323(a)(1). The federal regulation governing political activities of federal employees prohibits the same. 5 C.F.R. § 734.302(a). The regulation, moreover, broadly defines “political activity” to be “activity directed toward the success or failure of a political party, candidate for partisan political office, or partisan political group.” Id. § 734.101. The types of behaviors that Meadows is alleged to be involved in included post-election activities and election outcomes in various States pertaining to a particular candidate for office. If these potentially political activities indeed come against the Hatch Act, its regulations limit such efforts. These prohibitions on executive branch employees (including the White House Chief of Staff) reinforce the Court’s conclusion that Meadows has not shown how his actions relate to the scope of his federal executive branch office. Federal officer removal is thereby inapposite. [my emphasis]

Meadows had tried to argue that the overt acts accuse him of nothing more than those permitted activities, organizing Trump’s schedule and redirecting communications to the campaign. But Jones only bought that argument in the context of one of the overt acts attributed to Meadows (getting a phone number from Scott Perry). For the rest, Jones ruled that Meadows was engaged in activities for the campaign.

The Hatch Act doesn’t apply to the President and Vice President. So if Jones’ ruling relied exclusively on the application of the Hatch Act, it would have no relevance for Trump.

But Jones also relied on the Elections Clause of the Constitution that reserves the conduct of elections to the states.

The Constitution does not provide any basis for executive branch involvement with State election and post-election procedures. The Elections Clause expressly reserves the “Times, Places, and Manner” of elections to state legislatures. U.S. Const. art. I, § 4, cl. 1; see also Shelby Cnty. v. Holder 570 U.S. 529, 543 (2013) (“[T]he Framers of the Constitution intended the States to keep for themselves, as provided in the Tenth Amendment, the power to regulate elections.” (quoting Gregory v. Ashcroft, 501 U.S. 452, 461–62 (1991)); U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 833–34 (1995) (“[T]he Framers understood the Elections Clause as a grant of authority [to state legislatures] to issue procedural regulations, and not as a source of power to dictate electoral outcomes, to favor or disfavor a class of candidates, or to evade important constitutional restraints.”). States have been tasked under the Elections Clause to “provide a complete code” for elections which ought to include “regulations ‘relat[ing] to . . . prevention of fraud and corrupt practices [and] counting of votes . . . .’” Moore v. Harper, 600 U.S. —-, 143 S. Ct. 2065, 2085 (2023) (quoting Smiley v. Holm, 285 U.S. 355, 366 (1932)). This is not a power incident to a State’s police powers but “derives from an express grant in the Constitution.” Fish v. Kobach, 840 F.3d 710, 727 (10th Cir. 2016).

[snip]

Thus, the executive branch cannot claim power to involve itself in States’ election procedures when the Constitution clearly grants the States the power to manage elections under the Elections Clause. [my emphasis]

Note that Jones relied on both Shelby County (rejecting part of the Voting Rights Act) and Moore v. Harper (rejecting the Independent State Legislature theory) in this passage, both opinions authored by Chief Justice Roberts and the more recent one joined by Justices Kavanaugh and Barrett. There’s nothing controversial or surprising about this. But in both cases, there’s fierce Republican support at SCOTUS for the states’ authority in conducting their own elections — on paper, at least, even more fiercely among SCOTUS’ more radical right wing members.

Meadows’ appeal will have to argue positions directly the reverse of those that the Trump campaign floated during the campaign.

Meadows had tried to invoke two other bases for the White House Chief of Staff to butt into state elections: the Take Care Clause and the executive’s ability to offer advice to Congress.

13 The only potential constitutional authority, the Take Care Clause, does not enable the type of election oversight to which the State’s Indictment pertains. See U.S. Const. art. II, § 3 (“[The President] shall take Care that the Laws be faithfully executed[.]”). Yet, executive authority under the Take Care Clause “does not extend to government officials over whom [the Executive] has no power or control.” Thompson v. Trump, 590 F. Supp. 3d 46, 78 (D.D.C. 2022). The Court accordingly rejects Meadows’s suggestion that the Take Care Clause provides a basis for finding executive authority over state election procedures. Doc. No. [45], 9–10.

The Court is also unpersuaded by Meadows’s contention that his acts involving state election procedures are within executive power to advise Congress. Doc. No. [45], 10. It would be inconsistent with federalism and the separation of powers, to find that activities which are delegated to the states are also within the scope of executive power because the executive branch may advise Congress. Cf. Fish, 840 F.3d at 725–26 (“The [Elections] Clause is a default provision; it invests the States with responsibility for the mechanics of congressional elections, but only so far as Congress declines to preempt state legislative choices.” (quoting Foster, 522 U.S. at 69). The Court will not find that the executive branch has some advisory authority in this space in light of the express constitutional grant over elections to the States.

But here, too, Jones noted that the executive simply had no role here.

Here’s how this analysis works in practice, as Jones applied it to Meadows’ visit to Cobb County to monitor the vote count.

Similarly, Overt Act 92 alleges that Meadows traveled to Cobb County, Georgia where he “attempted to observe the signature match audit being performed there by law enforcement officers from the Georgia Bureau of Investigations and the Office of the Georgia Secretary of State.” Doc. No. [1-1], 44. Meadows testified that his actions with respect to this allegation were:

in line with [his duties], because what I did was go to the Cobb County convention center to look at the process that they were going through. And in doing so was trying to, again, check that box to say, all right, everything is being done right here, and so if there’s allegations of fraud, we need to move on to something else.

Hearing Tr. 152:4–17. The Court factually finds that Meadows overseeing State election recount processes related to President Trump’s reelection campaign. Meadows failed to provide sufficient evidence that these actions related to any legitimate purpose of the executive branch. Accordingly, the Court finds Meadows has not met his burden in establishing that Overt Act 92 is related to scope of the Office of White House Chief of Staff.

The executive has no role in such vote counts. And so the only purpose for Meadows to observe the count was on behalf of Trump’s campaign.

As Trump’s federal prosecution proceeds, there will be (and has been, in appellate consideration of the application of the 18 USC 1512(c)(2) to the vote certification) similar analysis about the Electoral College Act that reserves certain roles to Congress, not the executive. In his post-election activities, Trump (and Meadows) were simply intervening in one of the few areas where, thus far, judges have ruled that the executive has no role.

The analysis will be different for Jeffrey Clark because DOJ — but not its civil division — does have a role in investigating any federal election crime. Georgia has focused their response to Clark’s bid to remove his prosecution by presenting the testimony of the people who were in charge at DOJ, who slapped down Clark’s intervention.

But as to Meadows, Judge Jones has found that the things he did to intervene in Georgia’s elections on Trump’s behalf had no valid federal purpose.

Update: Meadows has asked Judge Jones for a stay, not (yet) the 11th Circuit.

Cleta Mitchell Skates

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Judge McBurney has released the report from Fani Willis’ special grand jury.

The grand jury recommended charges against a number of people who weren’t charged. Most attention has focused on the recommendations to charge David Purdue, Kelli Loeffler, and Lindsey Graham. I had always thought that Lindsey wouldn’t be charged because he is protected by Speech and Debate (a judgment that may be supported by the DC Circuit’s still-sealed partial reversal of Beryl Howell’s ruling permitting DOJ to access some Scott Perry records from his phone). But it seemed there was less support for those charges, generally, than for others. On the main RICO charge, four grand jurors voted against charging Purdue, six voted against charging Loeffler, and seven voted against charging Graham. There was broad support for charging Purdue for pressuring GA officials, but one of the grand jurors who voted against charging the GA Senators believed they were simply pandering to their base. And the foreperson said that Lindsey was charming in his grand jury appearance.

Those votes may be a read of how an eventual grand jury would vote on these cases. Only the votes against charging the alternate electors was less supportive.

Which is why I find the Cleta Mitchell recommendations far more intriguing. By wide margins, the grand jury voted to charge Cleta in conjunction with the January 2 call to Brad Raffensperger, the fake electors plot, and the RICO charge. But she — a prominent Georgian — was not charged.

It’s possible that some of Willis’ ultimate decisions were influenced by her perception (or that of her prosecutors) of the political will for charging prominent Georgians. It’s possible she has made charging decisions that limit the amount of institutional GOP pushback. Or it’s possible that Cleta testified in a way that made other charges — potentially including Mark Meadows — viable.

But one of the most toxic Georgians skated on this prosecution.

Update: Corrected spelling of Willis’ first name.

Update: Anna Bower’s review of the report is typically excellent.

Proud Boy Henry Tarrio Sentenced to 22 Years for Role in Jan. 6 Seditious Conspiracy

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For his role in leading a seditious conspiracy to stop the peaceful transfer of power on Jan. 6, 2021, the chairman of the Proud Boys Henry “Enrique” Tarrio was sentenced to 22 years in prison on Tuesday.

It is the stiffest sentence yet handed down to any Jan. 6 defendant and among any defendant charged and convicted with seditious conspiracy in relation to the insurrection. While the sentence fell under the 33 years federal prosecutors initially sought, it is also still higher than the sentence given to Oath Keeper founder Elmer Stewart Rhodes. Rhodes received 18 years in May. Matching Rhodes for 18 years is Tarrio’s co-defendant and fellow seditious conspirator, Washington state Proud Boy Ethan Nordean.

Before learning his fate, Tarrio, 38, told the court he regretted his actions on Jan. 6 and that the trial “humbled” him. He apologized to the people of Washington, D.C., and to law enforcement for their suffering.

However, his track record of public and private comments that made it into evidence celebrating the violence of Jan. 6 and specifically, calling to “do it again” in the immediate aftermath, plus his months-long refusal to denounce violence as a means to an end, left U.S. District Judge Tim Kelly unconvinced that anything short of a significant sentence would deter Tarrio or copycats like him in the future.

Federal prosecutor Conor Mulroe urged Kelly on Tuesday to consider Tarrio’s seduction and manipulation of his co-defendants and the thousands of other Proud Boys he held sway over and how slick his “marketing” of the glorification of violence had been.

“Tarrio’s leadership was about violence and manipulation,” Mulroe said. “He demonized his perceived adversaries, glorified use of force, and distributed violent propaganda to thousands and thousands of followers. He elevated street fighting elements with so-called ‘rally boys’ [and] he practiced and endorsed the use of misinformation, plausible deniability, deceiving the public…[and] cultivating fear.”

Tarrio, Mulroe reminded the judge, had compared himself to Nazi propaganda minister Joseph Goebbels for his use of these techniques.

On Jan. 6, Tarrio wasn’t at the Capitol. He was holed up instead at a hotel in Baltimore, Maryland, watching the Proud Boys attack Congress in their vainglorious attempt to ensure the certification was stopped. Tarrio wasn’t in the District of Columbia because he had been arrested just 48 hours earlier and ordered to stay out of Washington, D.C. The arrest was sparked by Tarrio’s theft and burning of a Black Lives Matter banner at a historic Black church after the pro-Trump “Stop the Steal” rally on Dec. 12, 2020. He also visited the White House that morning on what he said was a “public tour.”

When Tarrio arrived in D.C. on Jan. 4, he knew there was a warrant out for his arrest thanks to a tip he received from Metropolitan Police Officer Shane Lamond. At the time, Lamond oversaw the intelligence division at MPD. He and Tarrio had been in contact since at least 2019 and through the 6th, the men had shared at least 500 messages over text. Lamond was indicted this May on a single count of obstruction of justice—for the alleged obstruction of a probe into the burning of the BLM banner—and three counts of making a false statement. He has pleaded not guilty.

Excerpt from Shane Lamond indictment

Calculating that arrest meant he could inspire his followers and outrage them, prosecutors said. It would generate buzz. It would get a reaction. As Tarrio said on Jan. 4 to Joseph Biggs as he knew he would soon be arrested, “Whatever happens, make it a spectacle.”

The burning of the banner revealed much about who Tarrio was in total, Mulroe argued. Like everything else, Tarrio boasted of his exploits on social media and then marketed off it. At trial, jurors saw footage of dozens of Proud Boys who came to D.C. for the 6th sporting shirts that said: “Enrique Tarrio Did Nothing Wrong.”

“That is the visible manifestation of his influence,” Mulroe said.

When issuing his statement to the court, Tarrio went on a lengthy defense of his actions. He did not testify at trial and for the first time, he stood before the judge to offer his side of things. He believed the election was stolen from Trump in November and his outrage was justified at the time, he said.

Tarrio claimed he told confidantes that he started to doubt whether the election had really been stolen in late November but he was met with “insults and ridicule” so he carried on anyway.

“Even with all my doubts I persisted and attended another rally on Dec. 12,” he said.

And then the same thing occurred the next month when he was spooked by the large size of the Stop the Steal rally that December. He told Judge Kelly, though he admitted to “enjoying the spotlight” he was filled with “dread” after that event.

And yet, he said, he went on anyway and barreled toward Jan. 6.

“Watching the events at the Capitol unfold, I again, chose not to be the voice of reason,” he said.

Kelly would point out to Tarrio and his attorneys multiple times on Tuesday that a sticking point for him in sentencing was Tarrio’s commentary in public and private before, during, and after the 6th that chilled him. Tarrio told Proud Boys he was proud of them as they attacked the building. When a fellow Proud Boy asked Tarrio what to do next, Tarrio responded: “do it again.”

“I believe I made these statements to appease them, ” Tarrio said in a comment most uncharacteristic of the uncompromising alpha-male Proud Boys philosophy.

As for the terrorism enhancements around his sentence, Kelly explained that while they technically applied, he drew a distinction. He didn’t think Tarrio or his co-defendants had intent to kill or that they were engaged in the more typical terrorist conduct of blowing up a building or targeting U.S. troops.

“I am not a political zealot,” Tarrio said, adding that “inflicting harm or changing the outcome” was not his goal.

“Please show me mercy,” he added. “I ask you not to take my 40s from me.”

Nonetheless, the prosecutors argued that Proud Boys may not have strapped a bomb to their chests or signed up for training camps but they were “thrilled by the notion of traveling from city to city and beating their adversaries senseless in a street fight.”

The Proud Boys weren’t a “drop in the bucket” of violence on Jan. 6  Mulroe said.

They were the “tidal wave” that broke through the first barriers and it was Proud Boys who were in huge numbers in the first wave of rioters who streamed past police and into the Capitol. There were at least 200 Proud Boys present on the 6th, called in from all over by chapter leaders and urged on by Tarrio’s position as figurehead.

Before imposing the sentence, Kelly told him, it was “revolutionary zeal” that anchored the conspiracy and resulted in those 200 men getting “amped up for battle [and] encircling the Capitol.”

Members of Tarrio’s family, including his sister, mother, and fiancee, spoke on his behalf and pleaded with Kelly for mercy. The judge acknowledged the support the now-defunct leader had but in his own remarks, he showed no remorse for his crimes.

Telling him that his absence from the Capitol on the 6th actually did serve a strategic purpose for his lieutenants Nordean, Biggs and Rehl to rile up the crowd, Judge Kelly said it wasn’t lost on him that Tarrio even in his statement Tuesday, was trying to “insulate” himself and “distance” himself from what in fact unfolded that day.

“That’s useful to someone as smart as Mr. Tarrio and then, before the day was out, putting publicly on social media, ‘I’m proud of boys and my country’ and ‘don’t fucking leave,” Kelly said before repeating it. “Don’t fucking leave.”

Kelly said he couldn’t say for certain “how close” things came on Jan. 6 to the nation not actually completing its transfer of power but he maintained that what happened was serious and a “disgrace.”

“And I have Mr. Tarrio publicly putting out there, ‘don’t fucking leave’ and privately, to another confidante, ‘make no mistake, we did this,'” Kelly reiterated.

Then, seemingly aghast at Tarrio’s brazenness, the judge repeated each word methodically: “‘Make no mistake, we did this.”

The judge also noted how Tarrio put into yet another message that if “God didn’t put me there [at the Capitol on Jan. 6] for a reason, we would still be there.”

“I don’t have any indication that he is remorseful for the actual things he was convicted of which is seditious conspiracy and conspiracy to obstruct the election,” Kelly said.

After the sentencing was over, Tarrio walked out and threw up a peace or victory sign.

His attorneys told CNN after the hearing that they were “caught off guard.”

“That’s what the appellate process is for,” he said.

To take a look through my live feed of proceedings posted to Twitter, a link is available here. 

The Finding Out Part: Proud Boys Face Sentencing

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NOTE: Emptywheel is again supporting Brandi Buchman’s coverage of the Proud Boys hearings live from the courthouse in Washington, D.C. Please consider making a donation to emptywheel as she continues her reporting through the final Proud Boys sentencing hearing for Henry “Enrique” Tarrio scheduled for Sept. 5. If you can and are able, you can also support Brandi’s work as a freelance journalist directly here.

From left to right: Proud Boys Zachary Rehl, Ethan Nordean, Henry Tarrio, Joseph Biggs, Dominic Pezzola

Like moths to a flame, many of the Proud Boys sentenced to prison last week for their roles in the seditious conspiracy to stop the peaceful transfer of presidential power on Jan. 6, 2021, appear unwilling or unable to disabuse themselves of the delusions that have led them to exactly where they are today: inside cells, donning jumpsuits or shackles and ordered kept away from the free world and their families for no less than a decade apiece.

Dominic Pezzola, a New York Proud Boy and former Marine who busted open a Senate wing window allowing some of the first rioters to stream inside the Capitol, and forcibly stole a riot shield from a police officer knocked to the ground who believed he would die at the hands of the mob, strode out of a federal courtroom last week shouting “Trump won!” as he pumped

his fist in the air.

Remarkably, less than an hour before receiving his 10-year sentence – the government wanted 20–, Pezzola had begged the court for mercy through tears and vowed he was done with politics.

Joseph Biggs, a former Marine now disgraced with the conviction of seditious conspiracy and a multitude of other felonies, called into a vigil held outside a jail heavily populated by Jan. 6 defendants in D.C. just a few days after he was sentenced to 17 years in prison. The government wanted 33.

“This is just insanity. There is no way in hell any of this stuff can stick. There’s no way you can give somebody terrorism for shaking a fence,” Biggs, a former contributor to Alex Jones’ far-right conspiracy theory peddling InfoWars, railed. “That’s the most insane fucking thing in the world. First, it starts with shaking a fence and what’s next? You shake a hand or accidentally bump into somebody and that’s terrorism… We gotta stand up and fight. And never give up. 17 years? They can kiss my ass. We’re still fighting all the way to the end.”

Biggs then asked the same lawmakers he terrorized nearly 1,000 days ago with a mob of Trump supporters at his back and roughly 200 Proud Boys in the crowd overall, to “get their heads out of their asses” and help free him.

But Trump didn’t win and Biggs wasn’t sentenced to 17 years for merely shaking a fence in the course of peaceful protected protest.

His efforts to bring that fence down, which was bolted inches deep into the steps leading to the Capitol, were done with force and with the implied intent to stop Congress from certifying the election. That forethought was bolstered by the intent and actions of his co-defendants, including Washington state Proud Boy chapter leader Ethan Nordean.

This was decided not just by a jury able to discern evidence clearly enough to evince distinctions between defendants and therefore reach acquittal on some counts, but it was also a point sustained by U.S District Judge Tim Kelly, a Trump appointee. He and the jury defined the Proud Boys’ efforts as an attempt to directly intimidate or coerce the United States government and its officers from doing their duty and initiating the democratic transfer of power.

For the foreseeable future, the Proud Boys and certainly Joe Biggs have appeared to pin all of their hopes for freedom on a pardon from a reelected Donald Trump in 2024. Notably, during an appearance with Alex Jones on InfoWars, Jones – who helped organize the Stop the Steal rally before the attack and who is currently waiting to learn whether $1.4 billion in damages he owes to victims of Sandy Hook will be discharged in bankruptcy – extended an open invitation to Biggs to return to his show.

Biggs gushed and Jones reassured the jailed insurrectionist he was merely a “patsy.” Perhaps in hopes of inspiring fundraising levels, he urged Biggs to “give me a 1776!!”

“1776 brother!” Biggs laughed.

***

At the E. Barret Prettyman courthouse last week, Pezzola, Biggs, Nordean, and their co-defendant, Philadelphia Proud Boy chapter leader Zachary Rehl, were each sentenced by Judge Kelly following their convictions by a jury trial that lasted four months. The only Proud Boy left for sentencing is the group’s leader, Henry “Enrique” Tarrio. He will be sentenced on Tuesday at 2 p.m. ET. The government seeks 33 years for him.

Prosecutors sought 20 years for Pezzola, he was given 10. They sought 33 years for Biggs, he was given 17. Nordean faced a 27-year recommended sentence but received just 18 years, matching Oath Keeper founder Elmer Stewart Rhodes for the stiffest sentence yet handed down to any of the extremists charged and convicted of seditious conspiracy.

The Justice Department sought 30 years for Rehl, and Kelly sentenced him to 15, noting as he rendered his decision how the son and grandson of Pennsylvania police officers perjured himself blatantly on the stand more than a dozen times as he denied – despite clearly visible footage of him – pepper-spraying police who were battling to keep the Capitol under the control of the U.S. government.

Yet, it seems increasingly unlikely that the judge will venture into those high climbs and may instead deliver a sentence closer to what Nordean and Rhodes received.

Given their tenor at trial and their mostly self-serving apologies that comprised their remarks before learning their fates, it would also seem things are today not very much different than they were for the Proud Boys in the fall of 2020 or that first fateful week of 2021.

Their minds are heavy still with toxic propaganda. Their egos remain front and center and from their mouths, they continue to sputter drivel echoing a lie told by a man that, for whatever reason they appear unable to fully grasp even now, has helped pave the road to their ruin and continued suffering.

***

ETHAN NORDEAN

To his credit, before he was sentenced, Nordean at least correctly called Jan. 6 a “tragedy.” And he at least offered an apology “for my actions that day and to anyone who I directly or indirectly wronged,” he said.

But he also qualified those remarks and others. What he regretted the most, he told the court, was “not being a better leader” on Jan. 6, speaking nothing of all the times in the lead-up to the day that he failed to disavow fellow Proud Boys in private messages of their violent notions or how he actively recruited men to come with him to Washington.

In court, he said it took him time to “humble” himself and to “accept my situation,” as the trial unfolded, he told Judge Kelly.

“I thought of myself merely as an individual, removing blame and accountability for myself… [but] I had to face a sobering truth. I came to Jan. 6 as a leader; I came to keep people out of trouble and keep people safe,” he said.

Still deflecting responsibility, omitting discussion of how he vilified police and effectively couching his crimes in the language and context of a well-intended general who merely lost control of an unforeseeably mutinous troop, he nonetheless maintained that he tried to “deescalate.”

U.S. Capitol Police Officer Shae Cooney testified at trial in February that it was Nordean who screamed at her, calling her a “pig” as he whipped people up into a frenzy and knocked over the metal fencing that allowed the mob to rush past her. She and other officers near her were beaten with “thin blue line” flags, pelted with frozen water bottles, knocked down and nearly trampled, and doused in chemical spray.

“I had ample opportunity and I did nothing. There is no excuse for what I did… adding myself to a chaotic and dangerous situation in the Capitol building was sorely irresponsible,” Nordean said Friday, his voice clear and even.

Unlike all of his co-defendants at sentencing so far, the Jan. 6 ground leader did not appear to cry.

Before he sentenced him, Kelly told Nordean that what disturbed him was not just Nordean’s actions before and on Jan. 6, but afterward, too. Nordean expressed regretting nothing and when there was talk among Proud Boys of going further, of possibly ramping up for another Jan. 6-style takeover in the days after the attack, he didn’t back down. Not before the inauguration. Not after.

In a text message on Jan. 12, 2021, Proud Boy Ethan Nordean defends his efforts “on the ground.” (Source: DOJ Trial exhibit)

 

In a text message from Jan. 20, 2021, Ethan Nordean discusses plans moving forward for Proud Boys in the “fragile time” after Jan. 6. (DOJ trial exhibit)

 

Proud Boy Ethan Nordean (aka Rufio Panman) text message from Jan. 27, 2021, discussing preparing the group for its next move. (DOJ trial exhibit)

Nordean’s attorney Nick Smith argued for leniency and at one point contended that while Jan. 6 was regrettable, the charge of seditious conspiracy didn’t fit because what the defendants did only really amounted to something in the category of a national embarrassment. The subsequent crimes that sprang forth should be deemed more humiliations to a branch of government and nothing more. Kelly entertained Smith briefly but was sharp on the singular point appearing lost on the defense: the Proud Boys’ actions culminated at a crucial, positively critical constitutional moment. Early last week, Kelly denied all requests for acquittal and retrial.

“If we don’t have the peaceful transfer of power in this country, then we don’t have anything,” Kelly said, his voice slightly exasperated.

The novelty of Smith’s arguments aside, Kelly fell back on what Nordean said and did. It was Nordean who suggested Proud Boys “fash the fuck out.” They understood too, he said, that Jan. 6 was “the day that was the last stop on the train to make sure their preferred candidate stayed in power.”

Calling for terrorism enhancements to apply to Nordean’s sentence, Assistant U.S. Attorney Jason McCullough underlined that Nordean was the figure all other Proud Boys turned to in the fray. Witnesses for the prosecution who pleaded guilty to seditious conspiracy testified to this. Evidence and testimony showed how he stepped in when Tarrio, the organization’s founder, could not. (Tarrio was arrested before the raid on the Capitol but watched from afar.)

Nordean marched side by side with Rehl, and Biggs, and it was Nordean, McCullough noted, who recruited and “seduced men like Dominic Pezzola [with the idea] that violence is the answer.”

Judge Kelly would apply a terrorism enhancement to some of the charges at sentencing. The judge said he did not believe the defendants intended to kill anyone on Jan. 6. He also remarked that he would “probably never sentence someone 15 years below the guideline in my entire career.” The recommended sentences, he added, seemed to “overstate” the crime.

When she delivered her victim impact statement ahead of sentencing, U.S. Capitol Police Officer Shae Cooney broke down at the lectern. Through her sobs, she recalled how she lost a friend that day.

“Someone who I worked with for almost three years, I was standing right next to him when we started fighting and later that night he was gone,” Cooney said, referring to fallen Officer Brian Sicknick through choked-back tears. “Every day we have to be reminded he’s not here anymore because the people in this courtroom decided they weren’t happy with how an election went and their best idea was to break into the Capitol, fight police officers, and overturn an election.”

“We understand people were upset and angry. We tried to talk to them as best we could to show we understood they were angry and whatnot, and that this was not going to fix anything… it didn’t matter how much talking we did that day. There were too many people that just wanted to keep going and get through us as much as possible,” Cooney said.

So many people have taken their lives because of what happened to them on Jan. 6, she told the court.

Metropolitan Police Officer Jeffrey Smith killed himself after Jan. 6. Fellow Metro Police Department officers Gunther Hashida and Kyle DeFretag died by suicide. U.S. Capitol Police Officer Howard Liebengood also committed suicide four days after Jan. 6.

Officer Sicknick died after suffering multiple strokes following his confrontation with rioters.

JOSEPH BIGGS

At his sentencing, Biggs told the court that his “curiosity got the better of me” on Jan. 6. All of his violent rhetoric was just that – talk. It was a way for him to cope, he said.

Last week, when cuddling up to Judge Kelly and before he said the Justice Department could “kiss his ass” when speaking to supporters gathered at the D.C. jail, Biggs told the judge he respected the process and outcome though he freely admitted he would appeal.

“I don’t have any grudges toward any of you. I don’t hate the prosecutors. I prayed for all of you. I’m going to leave this situation a better person,” Biggs said, his speech rushed and his emotions high as he spoke.

He continued: “I had time to think about who I am and who I want to be with all my time in solitary confinement… I don’t want to be a person affiliated with any more groups unless it’s my daughter’s PTA.”

Biggs went on to claim that the assault of his daughter by someone he knew had twisted him up in the run-up to the insurrection. He also claimed that after Jan. 6, that was his “last time” with the Proud Boys and he had planned to tell everyone he was “done.”

Crying, Biggs pleaded: “I’m not a terrorist. I don’t hate people.”

But, Kelly told him, he did play a role leading people and riling others up against lawmakers and police. He was instrumental in the Proud Boys’ so-called “Ministry of Self Defense” and Biggs for weeks was key in leading operations for the channel that acted covertly to coordinate efforts for the 6th.

It was Biggs who wanted to find “real men” to “get radical” with and it was Biggs’ overt calls for violence and civil war that littered the group’s private and public correspondence. It was Biggs whom Tarrio turned to and whom Tarrio told members he relied on, along with Nordean, to make decisions. And when it finally came to it, it was Biggs, Kelly said, who helped yank down the fence and wave people inside with an intent to intimidate Congress.

Proud Boy Joe Biggs is seen gesturing to rioters below, indicating where a nearby opening is for those to come inside the Capitol. (DOJ trial exhibit)

Biggs was the only Proud Boy to breach the Capitol twice. He saw officers fighting for their lives and brushed past them at the Columbus doors. He took a selfie once inside and stole an American flag as he marauded through the building.

“You waved people in. You entered the Senate gallery and made comments afterward that justified and celebrated what happened,” Kelly said.

A terrorism enhancement would apply to the charge involving the metal fence, the judge was quick to distinguish, because its removal was integral to rioters advancing and getting inside the Capitol. But he was shy to label Biggs a terrorist in the general sense.

“It’s not my job to label people a terrorist and my sentence today won’t do that. There are sentencing guidelines here that talk about adjustments and departures for conduct and then lay it out and label it terrorism and my job is to apply this. You asked me not to label you a terrorist, that’s for other people to argue about,” Kelly said.

Prosecutors warned the judge in their sentencing memo: “A conviction for serious felonies, and the accompanying substantial prison sentence, might unfortunately only redouble Biggs’s commitment to embracing extreme measures to achieve his political aims. The Court must accordingly impose a sentence long enough to prevent Biggs from leading another violent conspiracy against the government while he is still motivated and equipped to do so.”

In court, McCullough told the judge the Proud Boys, especially with leaders like Biggs at the helm, brought the nation to the “edge of a constitutional crisis” because that was precisely what they set out to do. Buildings may not have been bombed, mass casualties may not have occurred, McCullough argued, but the Proud Boys created an atmosphere on Jan. 6 that has yet to dissipate.

People are afraid to go to polling places or inaugurations for fear of political violence, he said. (In fact, threats and harassment of poll workers are up according to a recent study by the Justice Department.)

The Proud Boys didn’t need weapons of mass destruction, McCullough said.

“It just takes slick propaganda in an environment where you can encourage people to basically say it’s you against them,” he said.

Before Biggs was carted out of the courtroom by a marshal, Kelly told the parties he would have imposed precisely the same sentence had the terrorism guideline not applied.

“I know this is not the outcome you wanted or the government either,” Kelly said. “But I wish you the best of luck in your relationship with your daughter moving forward. I’ll just say that. I think it’s an appropriate sentence but I do wish you the best of luck with your daughter.”

ZACHARY REHL

Of all the Proud Boys to face sentencing last week, it was Rehl who became the most undone after prosecutors laid out their request.

“Zachary Rehl deserves every day of the sentence the government has requested for him here [of 30 years],” Assistant U.S. Attorney Erik Kenerson said Thursday.

Rehl helped “raise an army” of Proud Boys who shared in his belief that the 2020 election was stolen and that the only means of recourse to stop the transfer of power was to put a halt to proceedings on Jan. 6, Kenerson said.

“What is particularly pernicious in this conspiracy is the glorification of violence… the willingness to brawl in support of their cause to achieve results they could not otherwise,” the prosecutor emphasized.

Rehl looked at “vigilante violence” as a means to an end and when he recruited members to the Proud Boys, it was the most violent footage of their ideological or political opponents being brutalized that he tapped. He endorsed violence as just one piece of the strategy to “take back the country” and had been doing so since as far back as 2019 when he first started to associate with the group, Kenerson said.

Though the son and grandson of police officers, Rehl nonetheless encouraged violence against law enforcement when he advanced on the Capitol and then used violence to break a standstill on the Capitol’s West Plaza by assaulting an officer with pepper spray, Kenerson said.

At trial, prosecutors destroyed Rehl’s testimony after a series of questions emerged about his whereabouts on the West Plaza as well as what codefendant he was or wasn’t in contact with as he breached the building.

An intense exchange under cross resulted in Rehl melting down spectacularly and stumbling through a series of denials – to a mind-boggling degree – over footage played in court that depicted a man who looked and dressed identical to Rehl down to every detail spraying an irritant right at an officer.

Kenerson, who unwound Rehl at trial like so much thread from a spool, recalled how the Proud Boy’s testimony was “combative, evasive, and incredible.”

And it was. At one point, Rehl asked a jury to believe that he and others who stormed the Capitol did so because they thought stages were erected on the plaza for them, like at a rock concert. He was even unwilling to concede to prosecutors that the black glasses on the man that appeared to be him were in fact black and not, as Kenerson pointedly asked him during a tense minutes-long volley, pink?

From left to right: DOJ trial exhibits show Proud Boy Zachary Rehl outside the Capitol on Jan. 6, 2021; taking a selfie inside a lawmaker’s office and spraying a chemical irritant at a police officer

Since the trial ended, Rehl continued to mock proceedings and not just that, but lie about them, Kenerson noted to Judge Kelly. That included when Rehl falsely told the Gateway Pundit in a post-trial interview that the trial was under a media blackout.

Last week, as he prepared to receive his sentence and read from his remarks, Rehl’s body was wracked by waves of tears, each of his words punctuated or paused by a sniff or a guttural clearing of his throat. He originally had a 10-page statement written out, he said, but on the advice of his counsel, Norm Pattis, he opted to focus “on what’s important in this room: my daughter and wife.”

Rehl told them he let them down and, that seeing them in court was difficult but the circumstances were his fault.

“A complete lapse in judgment cost me everything,” he sobbed.

Pattis lay a hand on Rehl’s back as his client lamented that his daughter would now lose his military benefits. He worried it may “still be a possibility” that he could lose more people in his life. He apologized to prosecutors for “blaming them” instead of himself for how things turned out.

Crying hard, he sputtered: “I am done peddling lies for people who do not care about me.”

He called Jan. 6 “despicable.”

“I did things I regret,” he said.

Like Nordean, Biggs, and Tarrio, Rehl was convicted of seditious conspiracy, conspiracy to obstruct an official proceeding, obstructing an official proceeding, conspiracy to prevent officials from discharging their duties, impeding officers during a civil disorder, and destruction of property.

In the weeks before Jan. 6, Rehl was involved with Tarrio’s brainchild, the group’s exclusive “Ministry of Self Defense.” After the attack on Congress, Rehl told members “We should have held the Capitol.” He said he was proud of what he accomplished yet frustrated more hadn’t been done. It was Rehl who called for firing squads for people who “stole” the election.

“‘Everyone should have showed up and taken the country back,’” Judge Kelly said in court on Thursday, reciting Rehl’s own words after the insurrection back to him.

“I mean my god!” Kelly exclaimed.

Rehl’s statements were “chilling,” he added.

Pattis urged the court to believe that Rehl was another casualty in the nation’s political discourse and had been swept up in the “crisis of legitimacy in this country.”

Rehl believed Trump when he said the election was stolen and fell for it “hook, line and sinker,” Pattis said.

The defense attorney has argued this point in court yet also wiles away his time on social media sharing things like Trump’s appearance with Tucker Carlson on Twitter late last month or suggesting Trump’s own looming trial dates are politically timed with the coming primaries and election.

DOMINIC PEZZOLA

But for the fact that he was acquitted of the topmost charge of seditious conspiracy and that he failed to play a significant leadership role among the Proud Boys, the 45-year-old Rochester, New York man might have received a sentence closer in line with his co-conspirators. Instead, he was sentenced to 10 years in prison.

Pezzola has already told supporters he thinks he will be out in one.

The image of Pezzola busting open a Capitol window with a stolen police riot shield wielded above his head is one of the most memorable images of Jan. 6.

And Pezzola has always been out front, according to prosecutors.

Tarrio first put Pezzola out front on his social media a week before the insurrection as a “literal poster child” for their organization, McCullough said, stamping an image of a warrior-like Pezzola with the hashtag, #LordsofWar #J6. Pezzola didn’t have a huge social media footprint but would often reply to Tarrio’s posts online rapidly. He also made it to the cover of The Washington Post when attending a pro-Trump rally in November.

Pezzola had proven himself to the Proud Boys at a Stop the Steal rally in D.C. the following month and was taken into the fold in short order thanks to a vote of confidence from Jeremy Bertino, a Proud Boy who would plead guilty to seditious conspiracy in October 2022.

Once inside the Capitol, he celebrated with a victory smoke. And if there were questions over the depth of his involvement in the greater seditious conspiracy, the jury at least found this video damning enough of his involvement in the conspiracy to obstruct,

“I knew we could take this motherfucker over if we just tried hard enough,” Pezzola said in a selfie video he filmed inside the Capito less than 20 minutes after he powered through police, glass, and a crushing mob.

Kenerson told Kelly this was precisely the sort of violent political activity that Pezzola wanted to be a part of when he joined the group in 2020.

When he took the stand, Pezzola was arrogant and combative with prosecutors under cross-examination and offered half-apologies and concessions. He told them he took the riot shield from U.S. Capitol Police Officer Mark Ode out of fear for his own safety. He quibbled over whether he had pulled the shield away from Ode; he suggested at another point that Ode “lost” it in the scuffle. He blamed police for the violence of the day and he made himself out to be a defense and weapons expert.

At sentencing, Pezzola’s attorney Steven Metcalf sought to seek credit for his client’s “accepting of responsibility” for some of his crimes when he was on the stand.

But Kelly was not persuaded.

“And at the end of the day, even before we get to his testimony, well, he did take the stand and he did testify that there was no conspiracy. You’re entitled to that I suppose, but the jury convicted him of conspiracy. Not seditious conspiracy, but conspiracy. It makes it hard to waltz in and say, I should get acceptance of responsibility,” Kelly said. “I don’t think in his trial testimony he took responsibility for robbing or assaulting Officer Ode and he was convicted of those things as well.”

He credited Metcalf for the “creative” argument but rendered Pezzola’s “acceptance” as performative.

Addressing Pezzola, Kelly said: “You really were in some ways, the tip of the spear that allowed people to get into the Capitol.”

“You opened the Capitol like a can opener,” Kelly remarked.

Nonetheless, the judge departed downward on the sentence because he believed, as he did with the other defendants, that the terrorism enhancement overstated the Proud Boys’ conduct. They didn’t mean to cause massive loss of life, he said.

Speaking to the court before he was sentenced, with his mother, daughter, and wife crying behind him, Pezzola was emotional.

“I stand before you a changed and humble man,” he said before promptly ignoring what the court had ruled earlier. “But nonetheless a man who has always taken responsibility for his actions.”

He apologized to his wife for “magnifying” their personal life to the public. He apologized to his daughters for missing milestones. Mercy, he told the judge, would make or break his family. Pezzola’s wife, Lisa Magee, who was unable to speak a word without crying, told the judge she wasn’t making excuses for her husband but she noted, “As I said on the stand, he’s a fucking idiot.”

Her life had been turned upside down because of her husband, she said. Their children were ashamed to show their faces or reveal their names to strangers.

Pezzola’s 19-year-old daughter begged the judge to look at her father, extending her arm to and pointing in his direction across the court where he sat clutching a wad of tissue. Pezzola’s face was flush red, and he wiped tears away. He gave her a good life, she said. She never got in trouble and that was thanks to him, she said. His mother, sobbing through her statement, told the judge “I know my son” and called him “my hero.”

Before he sentenced Pezzola, Kelly repeated to him a speech he delivered to each of the defendants.

“The peaceful transfer of power is one of the most precious things we had as Americans. Notice I said had because our tradition of unbroken peaceful transfers of power – that string has now been broken. We can’t just snap our fingers and get it back.”

Pezzola had his eyes cast down on the table as Kelly spoke.

After he stood to accept his sentence but before he declared “Trump won!” and threw his fist in the air, a wry smile creeping across his face, he turned to his family in the pews to look at them. Whether he realizes it fully or not, it may have been one of the last times, in a very long time, that he sees them without bars or thick glass obstructing his view.

Proud Boy Dominic Pezzola sentenced to 10 years in prison, Ethan Nordean gets 18

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Proud Boy Dominic Pezzola, who U.S. District Judge Tim Kelly described Friday as the “tip of the spear” that first let rioters flood into the Capitol on Jan. 6, 2021, has been sentenced to 10 years in prison. As he exited the courtroom, Pezzola shouted: “Trump won!” and pumped his fist in the air.

The remark came after his wife, daughter and mother delivered tear-soaked, highly emotional pleas to the court for mercy and less than an hour after Pezzola told the court: “There is no place in my future for groups or politics whatsoever.”

Pezzola faced trial for seditious conspiracy and a multitude of other charges connected to efforts with fellow Proud Boy co-defendants to forcibly stop the transfer of power. He was acquitted of the sedition charge but jurors that reviewed the case for a marathon four-month slog did find him guilty of conspiring to obstruct an official proceeding. Pezzola was also found guilty of obstruction of an official proceeding, conspiracy to prevent members of Congress and federal law enforcement officers from discharging their duties, civil disorder, and destruction of government property.

For the forcible taking of a police riot shield off a U.S. Capitol Police officer Pezzola was also found guilty of assaulting, resisting, or impeding certain officers and robbery involving government property.

“You really were, in some ways, the tip of the spear that allowed people to end up getting into the Capitol,” Kelly said.

The 10-year sentence fell well under what prosecutors initially sought: 20 years. Guidelines only recommended 17.5 to 22 years. Kelly did apply the terrorism enhancement on his offenses, but felt that it didn’t apply to his conduct specifically and overstated it. Pezzola, the judge said, did not have intent to kill.

Proud Boy leader Ethan Nordean — who was convicted of seditious conspiracy — was sentenced to 18 years in prison by Judge Kelly on Friday afternoon. That is the same length of sentence that was given to former Oath Keeper founder Elmer Stewart Rhodes. Rhodes was also convicted of seditious conspiracy and several other charges.

When it was his time to make a statement, Nordean’s voice was clear and loud. He did not appear to be overcome by emotion. He started out by telling Judge Kelly that he believed only two points about Jan. 6 really needed to be understood to grasp the gravity of that day.

“We must conclude Jan. 6 was a complete and utter tragedy. How do we know this? It’s best to simplify this complex argument…All we need to show is two simple points: first, lots of people were seriously hurt and [next] some people lost their lives. We don’t necessarily need to know about all the destruction that was caused, [or about those] not following commands of law enforcement or those who assaulted police officers,” Nordean said.

“A lot of people went to [D.C. on] Jan. 6 with good intentions but passions accelerated and chaos ensued,” Nordean also sad Friday. “Even if we start out with good intentions, the end result is how we will be judged, as it should be.”

Of his largest regrets around Jan. 6, Nordean told the court it was his lack of “leadership” on Jan. 6.

“I came to Jan. 6 as a leader. I came to keep people out of trouble and keep people safe,” he said.

Later he added: “The truth is I did help lead a group of men back to the Capitol and I can see the government’s point: I had ample opportunity to de-escalate and I chose to do nothing… There’s no excuse for what I did…. adding myself to an already chaotic and dangerous situation in the Capitol building was sorely irresponsible.”

Pezzola and Nordean’s co-defendants Joseph Biggs and Zachary Rehl were sentenced Thursday. Both Biggs and Rehl were convicted on the seditious conspiracy charge; Biggs received 17 years and Rehl was sentenced to 15 years. After Judge Kelly fell ill earlier in the week, Proud Boys leader Henry “Enrique” Tarrio’s sentencing was pushed to Sept. 5. Prosecutors seek 33 years for Tarrio.

If you want to read through the live-thread I’ve put together for emptywheel, check out the link here. An in-depth report encapsulating these historic sentences is coming. 

NOTE: Emptywheel is again supporting Brandi Buchman’s coverage of the Proud Boys hearings live from the courthouse. Please consider making a donation to emptywheel as she continues her reporting through the final Proud Boys sentencing hearing for Henry “Enrique” Tarrio scheduled for Sept. 5.

Proud Boy Joe Biggs sentenced to 17 years, Zachary Rehl gets 15

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I will have a full report to come later for emptywheel but at the E. Barrett Prettyman courthouse in Washington, D.C. this afternoon, U.S. District Judge Tim Kelly sentenced Proud Boy and former InfoWars contributor convicted of seditious conspiracy, Joseph Biggs, to 17 years in prison.

Prosecutors called for 33 years for Biggs, so Kelly’s decision came considerably under that total but Kelly did find that Biggs’ tearing down of a metal fence with co-defendant Ethan Nordean that was meant to keep the mob at bay, constituted a terrorism enhancement. It was this deliberate effort, Kelly found, that allowed the Proud Boys to achieve their objective: to stop the certification of the 2020 election by force.

Proud Boy Zachary Rehl’s sentencing hearing began at 2:15 p.m ET. Prosecutors sought 30 years and on Thursday, the court found that because he committed perjury on the stand the guidelines would shift to 30 years to life.

But in the end, Judge Kelly sentenced Rehl to 15 years in prison. Rehl is pictured below pepper-spraying police.

If you want to read through the live-thread I’ve put together for emptywheel, check out the link here.

NOTE: Emptywheel is again supporting Brandi Buchman’s coverage of the Proud Boys hearings live from the courthouse. Please consider making a donation to emptywheel as she continues her reporting through the final Proud Boys sentencing hearing for Henry “Enrique” Tarrio scheduled for Sept. 5.