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Proud Boy Closure or John Roberts’ Get Out of Jail Free Card?

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There have been some developments in the Proud Boy prosecutions I want to note.

First, according to a status update filed on October 23, Jeremy Bertino — the most important cooperating Proud Boy witness — is done cooperating. That follows a four month continuance obtained in June. He will be sentenced in February.

Then, in the case of the Ron Loerkhe and Jimmy Haffner, on October 24, DOJ asked for and got an awkwardly timed 35-day motion to continue, until December 3, between the election and inauguration. AUSA Jason McCullough — who took over the case from Erik Kenerson a year ago, had previously asked for and gotten a 75-day continuance in July, which would have expired Tuesday. This case has done nothing but continue like this since they were first charged in December 2021. As I described then, Loehrke especially, who is a former Marine, was pretty instrumental in moving the crowd around on January 6, and would have been involved in any charges tied to the effort to open a second front of attack on the East doors of the Capitol.

Finally, on October 25, Alexis Loeb dropped off some or all of her cases. For years, the AUSA has shepherded a fairly breathtaking number of Proud Boy and Proud Boy adjacent cases — often those where the defendants couldn’t be tied to the Proud Boy leaders. In that role, she has had to manage a number of the cases that SCOTUS’ Fischer decision most complicated, in some cases shifting obstruction charges into civil disorder ones or arguing that defendants get the same sentence on the latter charge after the government gave up on the former. Ockham’s razor would suggest she’s dropping off because she has already put years into an investigation that for most others was a six month assignment. All the more so given she has finished up some recent business. On October 8, she got a plea with Jerry Braun; on October 18, Tim Kelly denied his bid to stay out of prison pending sentencing. On October 25, Colleen Kollar-Kotelly denied a bid by George Tenney to reduce his sentence. And on October 23, Kollar-Kotelly held a stipulated trial for Nicholas Kennedy’s obstruction charge (he already pled to his other charges, including Civil Disorder) under the new Fischer rules.

But not only is Fischer himself still pending, with trial scheduled in February, but Kennedy is not done. Immediately after the stipulated trial, Kollar-Kotelly ordered more briefing, scheduled out through November.

MINUTE ORDER as to NICHOLAS KENNEDY (1): Yesterday, October 23, 2024, the Court held a stipulated trial on Count Two of the 63 Second Superseding Indictment (Obstruction of an Official Proceeding and Aiding and Abetting, in violation of 18 U.S.C. §§ 1512(c)(2) and 2). After reviewing the stipulated facts with Defendant, the Court discussed with the parties the 82 Proposed Jury Instructions. During that discussion, it became clear that the parties agreed on the elements of a Section 1512(c)(2) offense but disagreed about the application of those elements to Defendant’s stipulated conduct. The Court has not yet reached a verdict. The Court ORDERS the Government to file proposed findings of fact and conclusions of law on or before NOVEMBER 1, 2024. Defendant shall respond on or before NOVEMBER 15, 2024. And the Government shall reply, if necessary, on or before NOVEMBER 25, 2024. Signed by Judge Colleen Kollar-Kotelly on 10/24/2024. (lcckk3) (Entered: 10/24/2024)

This briefing will go to the core of DOJ’s theory via which they think they can hold people accountable for trying to disrupt the counting of actual vote certifications.

Still, the most likely explanation is that Loeb has earned a break.

What I’m wondering, given the silence about the Proud Boys in Jack Smith’s immunity briefing, is what these movements mean for any implication of the militia into a case for Trump or his closest allies (the cases Loeb has overseen treated both Alex Jones and Roger Stone as unindicted co-conspirators).

I speculated earlier this month that we might see something implicating the Proud Boys after the election.

Back in December, in the last filing Jack Smith submitted before Trump’s lawyers got Judge Chutkan to prohibit such things, Smith said he wanted to introduce Trump’s encouragement of the Proud Boys as 404(b) evidence.

The Government plans to introduce evidence from the period in advance of the charged conspiracies that demonstrates the defendant’s encouragement of violence. For instance, in response to a question during the September 29, 2020, presidential debate asking him to denounce the extremist group the Proud Boys, the defendant instead spoke publicly to them and told them to “stand back and stand by.” Members of the group embraced the defendant’s words as an endorsement and printed merchandise with them as a rallying cry. As discussed below, after the Proud Boys and other extremist groups participated in obstructing the congressional certification on January 6, the defendant made clear that they were acting consistent with his intent and direction in doing so.

[snip]

Of particular note are the specific January 6 offenders whom the defendant has supported— namely, individuals convicted of some of the most serious crimes charged in relation to January 6, such as seditious conspiracy and violent assaults on police officers. During a September 17, 2023, appearance on Meet the Press, for instance, the defendant said regarding Proud Boys leader Enrique Tarrio—who was convicted of seditious conspiracy—“I want to tell you, he and other people have been treated horribly.” The defendant then criticized the kinds of lengthy sentences received only by defendants who, like Tarrio, committed the most serious crimes on January 6. [my emphasis]

But the Proud Boys don’t appear, at all, in the immunity filing. You can go search for them using this OCR version. Nothing. Jack Smith said he wanted them to be part of the trial, but they’re not in this filing laying out that Smith might mention them at trial.

To be sure, there is a section of the immunity filing that addresses Trump’s fondness for convicted Jan6ers.

In the years after January 6, the defendant has reiterated his support for and allegiance to 39478 39479 rioters who broke into the Capitol, calling them “patriots478 and “hostages,479 providing them financial assistance,480 and reminiscing about January 6 as “a beautiful day.”481 At a rally in Waco, Texas, on March 25, 2023, the defendant started a tradition he has repeated several times—opening the event with a song called “Justice for All,” recorded by a group of charged—and in many cases, convicted—January 6 offenders known as the “January 6 Choir” and who, because of their dangerousness, are held at the District of Columbia jail.482 At the Waco Rally, of the January 6 Choir, the defendant said, “our people love those people, they love those people.”483 The defendant has also stated that if re-elected, he will pardon individuals convicted of crimes on January 6.484

But not only doesn’t it mention the Proud Boys directly (one of them was part of the Jan6 Choir, though not any of the seditionists), it doesn’t include the September 2023 interview in which Trump addressed Enrique Tarrio by name (bolded above).

478 GA 1973 at 16:52 (Video of Waco Rally 03/25/2023); GA 1962 at 48:29 (Video of Trump at Faith and Freedom Coalition 06/17/2022); GA 1971 (Video of Trump Interview 02/01/2022).

479 GA 1935 at 35:50, 01:16:16 (Video of Greensboro Rally 03/02/2024).

480 GA 1966 at 09:30 (Video of Trump Interview 09/01/2022).

481 GA 1967 at 45:18 (Video of Trump Interview 08/23/2023); GA 1692 (Transcript of CNN Town Hall 05/10/2023).

482 GA 1973 at 03:00 (Video of Waco Rally 03/25/2023). See, e.g., United States v. Jordan Robert Mink, 21-cr-25 (D.D.C. 2023); United States v. Ronald Sandlin, 21-cr-88 (D.D.C. 2022); United States v. Barton Shively, 21-cr-151 (D.D.C. 2022); United States v. Julian Khater, 21-cr-222 (D.D.C. 2022); United States v. James McGrew, 21-cr-398 (D.D.C. 2022).

483 GA 1973 at 06:02 (Video of Waco Rally 03/25/2023).

484 GA 1971 at 15:51 (Video of Trump Interview with Schmitt 02/01/2022).

If you’re going to impress SCOTUS with Trump’s outrageous support for convicted rioters, you would include the Proud Boys.

Maybe that’s right.

Or maybe, with Fischer, John Roberts effectively wrote people like Jones and Stone a Get out of jail free card. For years, I’ve been laying out how Alex Jones and Roger Stone are right there in a networked conspiracy between the Proud Boys and Oath Keepers and Donald Trump.

But that was envisioned — I believe DOJ envisioned it, starting years ago — as a conspiracy built around obstruction charges, 18 USC 1512(k).

Given Fischer’s new evidentiary component, I’m not sure whether you could sustain charges for obstruction against Jones and Stone.

There’s at least one clue that DOJ doubts it can sustain such charges against people further from the action. In the SoCal Conspiracy, in which some anti-vaxers and Three Percenters joined up to plan their travel to January 6, DOJ just filed an information for Morton Irvine Smith, for just trespassing.

Smith funded much of the conspiring. He appeared to be involved in earlier plotting, going back to the MAGA March in December 2020. And DOJ imaged his computer years ago, back in June 2021.

To be sure, since he was charged via information, it’s clear that Smith has negotiated these charges. But particularly as the obstruction charges against the guys he funded, notably Alan Hostetter, have been put at risk with Fischer, I wonder whether DOJ has simply given up trying to hold Smith to any more serious charges.

It may be we’ll see some new Proud Boy developments after the election. But it’s just as likely that John Roberts’ revision of 18 USC 1512(c)(2) made it difficult if not impossible to hold key players between the crime scene and the Willard accountable.

The Challenge of Treating the Proud Boy Leaders as Terrorists

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The omnibus sentencing memo for the Proud Boy Leaders — an 80-page document supplemented by another 15 pages for each — describes their crime this way:

The defendants organized and directed a force of nearly 200 to attack the heart of our democracy.

[snip]

None of this was mere happenstance or accident. In the months leading up to January 6, 2021, they had brought their army of violence to Portland, Kalamazoo, and Washington, D.C. And then they brought that army of violence to the Capitol to exert their political will. In doing so, these defendants attempted to silence millions of Americans who had placed their vote for a different candidate, to ignore the variety of legal and judicial mechanisms that lawfully scrutinized the electoral process leading up to and on January 6, and to shatter the democratic system of governance enshrined in our laws and in our Constitution.

For years, these defendants intentionally positioned themselves at the vanguard of political violence in this country. They brought that violence to the Capitol on January 6 in an effort to change the course of American history, and the sentences imposed by this Court should reflect the seriousness of their offenses.

[snip]

The justice system’s response to January 6 will impact whether January 6 becomes an outlier or a watershed moment. “By nearly every measure, political violence is seen as more acceptable today than it was five years ago.” Adrienne LaFrance, The New Anarchy: America faces a type of extremist violence it does not know how to stop, THE ATLANTIC, Mar. 6, 2023 (citing a 2022 UC Davis poll31 that found one in five Americans believes political violence would be “at least sometimes” justified, and one in 10 believes it would be justified if it meant the return of President Trump). Left unchecked, this impulse threatens our democracy.

The defendants in this case sought to capitalize on this undercurrent in our society to change the result of a presidential election. They called for using force, intimidation, and violence to get political leaders to stop the certification of the election. They recruited others to this mission. They organized and participated in encrypted messaging groups and meetings to further their plans. Such conduct in leading and instigating an attack like January 6 demands deterrence. It is critical that this Court impose significant sentences of incarceration on all the defendants in this case to convey to those who would mobilize such political violence in the future that their actions will have consequences.

That language is a succinct statement of the terrorism committed by the Proud Boys.

But the document as a whole is a testament to how the asymmetrical treatment of terrorism in the United States makes it much harder to hold men like Enrique Tarrio and Joe Biggs accountable for attacking the Capitol that it would be if they were Islamic terrorists, rather than right wing Trump supporters.

The reason why the government had to dedicate 80 pages to justify sentences of 30 years for the core leaders of the January 6 attack is because it requires massaging the sentencing guidelines to treat white (or Afro-Cuban, as Tarrio identifies as) person terrorism like the US has long treated Islamic terrorism.

Here’s what DOJ had to in order to justify calling for these sentences:

  • Ask for consecutive sentences, effectively stacking some sentences on others
  • Adopt the treason sentencing guideline for sedition (which doesn’t otherwise have one), even while the maximum sentence for sedition is just 20 years
  • Ask that Judge Tim Kelly use the conspiracy convictions to apply the conduct of each defendant against the other, to apply the assault and property damage done by Pezzola against the others and the sedition conviction against Pezzola
  • Use enhancements for property destruction, substantial interference in the vote certification, and extensive planning on the obstruction charges
  • Use leadership or management enhancements for everyone but Pezzola
  • Ask for additional departures from the guidelines for “conduct [that] resulted in a significant disruption of a governmental function” and an “intent to frighten, intimidate, and coerce” federal lawmakers
  • Dismiss challenges (led by Nordean attorney Nick Smith over two years) to the treatment of the vote certification as an official proceeding that can be obstructed
  • Ask for a terrorism enhancement for the destruction of property (tied to the window Pezzola broke and some bicycle racks)
  • Ask for terrorism enhancement based on the clear political intent of all these crimes, including sedition, which is explicitly political
  • Add enhancements for Biggs, Tarrio, and Rehl for obstructing the investigation or trial (which is why Nordean’s proposed sentence is lower than the other guys’)
  • Describe the Oath Keeper as late-comers to sedition, by comparison
  • Laugh at any claim these men accepted responsibility for their crimes

The sentences make sense — particularly when you compare the damage these terrorists did against the aspirational Islamic terrorists who have been sentenced to even longer sentences. But in the scope of the sentencing guidelines as they exist, it all comes off as funny math.

Update: I probably should have explained in the post why this happens. Because domestic terrorism is not a crime unto itself, but instead an enhancement (which is the way it is being used with the destruction of property here), it is not finally used as a label until sentencing. Prosecutors have, in fact, been calling the Oath Keepers and Proud Boys terrorists throughout their prosecution in detention memos (relying on the same destruction of property). I addressed this in this post and this one.

Update: Here’s a post I wrote in 2015 about this asymmetry.

Note: The image accompanying this post is a challenge coin for January 6 introduced as an exhibit in Christoper Worrel (who has skipped bail as he awaits sentencing). The Proud Boys literally made the attack on the Capitol into a coin of their terrorist group. Update: Added the image to the body of the post, too, bc I confused people by referencing it w/o including it. 

How the Proud Boy Conspiracy Might Network Out in the Wake of the Seditious Conspiracy Verdict

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Since at least August 2021, I have emphasized the import of the Proud Boys conspiracy because of the way Joe Biggs (and, I’d add, Enrique Tarrio) served as a nexus between the attack on the Capitol and the people who orchestrated the attack on the Capitol.

Because of Joe Biggs’ role at the nexus between the mob that attacked Congress and those that orchestrated the mob, his prosecution is the most important case in the entire January 6 investigation. If you prosecute him and his alleged co-conspirators successfully, you might also succeed in holding those who incited the attack on the Capitol accountable. If you botch the Biggs prosecution, then all the most important people will go free.

The point was echoed by Tarrio in a Gateway Pundit appearance after closing arguments, in which he called himself, “the next stepping stone.” And in a comment during closing arguments for which prosecutors got a curative instruction, Norm Pattis (the lawyer Biggs shares with Alex Jones) said, “this case will have impact on [the government’s] charging decisions in other cases.”

This post will explain how the Proud Boys seditious conspiracy verdict might network out, to other Proud Boys, in the weeks ahead. A follow-up will explain how it might network up.

The split verdict

Yesterday, a jury found Biggs and Tarrio guilty of all charges against them save two assaults charged under a co-conspirator liability theory: the one Dominic Pezzola committed in stealing the riot shield that he would then use to make the first breach of the building, and the one for throwing a water bottle for which Charles Donohoe, whose absence from the trial seems to have befuddled the jury, already pled guilty.

The sedition verdicts against Biggs, Tarrio, Ethan Nordean and Zach Rehl are the showy news result, but Pezzola’s fate may prove just as instructive for what this verdict means for others. In addition to charges for assaulting that cop, robbing his shield, and breaking the window, Pezzola was found guilty of obstructing the vote certification, but not conspiring with the others to do that (on which the jury hung) or to seditiously attack the government (on which the jury came back with a not guilty verdict).

Pezzola was found guilty of conspiring with the others to impede either cops or members of Congress from doing their duty, a conspiracy that carries a six year sentence rather than the twenty year max sentences the two other conspiracies carry. The government used that 18 USC 372 charge in this case and in the Oath Keepers’ case. As I’ve noted, it was only otherwise used to charge the men who attacked Brian Sicknick, though the conspiracy charge was ultimately dropped in guilty pleas. Using a slightly different description of the object of the conspiracy, all four members of the second Oath Keeper sedition group were found guilty of it (but then, they were found guilty of pretty much everything), three members of Rhodes sedition group were convicted of it (but not Rhodes or Thomas Caldwell), and four of six defendants in the lesser Oath Keeper conspiracy were convicted of it.

The Pezzola verdict may reflect his own testimony: He took the stand and claimed credit for his own assault, which he said had nothing to do with the other defendants, but tried to claim self-defense. (Here’s Brandi’s post on his testimony.) The jury seems to have believed that he had not agreed to enter into the two conspiracies — sedition and obstruction — that largely took form on Telegram threads he was not yet on, but their 372 verdict suggests they found he did agree on the day of the attack to work with the Proud Boys to chase Congress away from their job. I suspect that outcome may have relied on his willingness to take the stand.

In this split verdict, Pezzola’s outcome is pretty similar to that of Oath Keeper Kenneth Harrelson, who was convicted of the 372  conspiracy but not the sedition or obstruction conspiracies. Like Pezzola, he was convicted of obstruction individually.

In other words, most members of both militias were found guilty, not just of obstructing the vote certification, but of doing things to chase Congress out of their chambers, thereby preventing from doing their job. On that latter act — impeding Congress from doing their job — four separate juries have found more evidence to support a conspiracy than on obstruction.

The government may use these collective results to — as Tarrio and Pattis predicted — make further prosecutorial decisions.

The Proud Boy tools

As Brandi and I have both explained, prosecutors won a guilty verdict in this case by arguing that the Proud Boy leaders used others as “tools” of their conspiracy.

In response to a series of rulings, the theory evolved into a co-conspirator liability, with each “tool” presented at trial first premised — as Tim Kelly described in an order he released just before the initial  verdict — on the government’s proffer of their involvement based on some combination of a prior tie to the Proud Boys, participation on the chats in advance, and marching with the Proud Boys from the start on January 6. Judge Kelly did exclude some of the people the government had asked to include, marked by cross-outs below:

William Pepe; Christopher Worrell; Barry Ramey; Daniel Lyons Scott; Trevor McDonald; Marc Bru; Gilbert Fonticoba; Ronald Loehrke and James Haffner; Nicholas Ochs; Gabriel Garcia; Paul Rae; Barton Shively; a group that included A.J. Fischer, Dion Rajewski, Zach Johnson, Brian Boele, and James Brett; and another group that included Arthur Jackman, Nate and Kevin Tuck, and Eddie George.

But for the rest, Kelly issued a ruling finding the men participated in the attack launched on the Capitol as Proud Boys. It’s an important ruling not just because it helped prosecutors to prove the Proud Boy Leaders used force even without, themselves, having assaulted anyone, but because it used participation in the Proud Boys attack as an element of conspiracy in a way that does not depend on First Amendment protected membership in the militia. They were found to be tools of this conspiracy not because they were Proud Boys, but because of things they did as Proud Boys.

It is probably not a coincidence that the cases against many of these men have been languishing as prosecutors focused on the Leader conspiracy. The current status of the prosecution of those Kelly did include is as follows:

Nicholas Ochs (who did not march with the Proud Boys on January 6): Currently serving a four-year sentence for obstruction.

Dan Scott: Awaiting sentencing on obstruction and assault charges.

Christopher Worrell: Bench Trial for obstruction, civil disorder, and assault paused; due to resume May 11.

Gabriel Garcia: After Garcia got caught hob-nobbing with Matt Gaetz and Ivan Raiklin in violation of pretrial release, his then lawyer parted ways with him. He is scheduled to face trial on obstruction, civil disorder, and trespassing charges in August.

William Pepe: Currently the sole remaining defendant on a conspiracy, obstruction, and civil disorder indictment in which Pezzola and cooperating witness Matthew Greene were originally charged. His attorney, William Shipley, is trying to delay trial until the fall; he has a status conference before Judge Kelly today. Update: They extended this case to July 11 today.

Trevor McDonald: Trevor McDonald has not been publicly charged.

Marc Bru: Bru is scheduled for a Bench Trial on obstruction and civil disorder charges in July.

Gilbert Fonticoba: Fonticoba faces trial on obstruction and civil disorder charges in October.

Ronald Loehrke and James Haffner: Loehrke and Haffner remain charged by complaint, facing civil disorder and trespass charges, with an assault charge against Haffner. They have a status hearing scheduled May 9.

Paul Rae, Arthur Jackman, Nate and Kevin Tuck, and Eddie George: Joe Biggs’ co-travelers currently face charges including obstruction and — for some — civil disorder, assault, and theft. This case has been dawdling over conflict proceedings involving John Pierce. Two long-term loaner AUSAs, Christopher Veatch and Nadia Moore (the latter of whom delivered the rebuttal argument in the Proud Boy leader trial), dropped off the case after closing arguments in the Proud Boy Leaders trial, perhaps freeing them to return to their homes after two years of work. This case is bound to take on new form in the status hearing before Tim Kelly scheduled today. Update: In the status conference, they continued this case to July 11. This morning, Proud Boy Leader prosecutor Jason McCullough filed his appearance.

AJ Fischer and Zach Johnson: Fischer and Johnson are charged along with non-Proud Boys who were part of the Tunnel assault with civil disorder and, for the two Proud Boys, assault. The indictment was charged under the Major Conspiracy section and may reflect cooperation between militias. The defendants have a July status hearing. As she did in the Biggs co-traveler case, Moore dropped off this case after delivering closing arguments.

For all the named “tools,” a judge has found that they followed Biggs and Nordean on the day of the attack. Like Pezzola, it would not be a stretch to argue they entered into a conspiracy to impede the cops and members of Congress. For all but Ochs, Scott, and Worrell, the government could supersede the charges against the men to incorporate evidence presented in the Proud Boy Leaders trial.

Two other Proud Boy groups may be affected by this trial.

Rehl’s co-travelers: Three of the guys that Rehl recruited to join the Proud Boys on January 6 were charged in December 2021: Isaiah Giddings, Brian Healion, and Freedom Vy. Giddings pled guilty to the more serious trespassing charge in January, but his statement of offense was somewhat discredited by belatedly-discovered evidence presented at trial that Rehl had not just wanted to get a can of pepper spray to use on cops on January 6, but had done so. Healion and Vy are still awaiting indictment. Rehl’s testimony at trial — particularly the evidence that he may have assaulted a cop — may make it easier to charge them with felonies.

The KC cell: Like many other Proud Boy cases, the prosecution of the Kansas City cell — one of the few others charged as conspiracy from the start — has been languishing during the Proud Boy leaders trial, even in spite of the fact that there is a cooperating witness, Enrique Colon, and one who proffered but was unwilling to testify against his co-conspirators, Ryan Ashlock. There’s a likely additional reason this case has languished, to say nothing of the fact that prosecutors didn’t include this cell — not even cell leader Billy Chrestman — in their tools theory: the participation of an FBI informant, who testified under the name “Ehren,” in their cell, setting up the possibility that those defendants could claim their actions were incited by the government. More than any other set of Proud Boy defendants, however, the Leader trial likely harmed this group, because during “Ehren’s” testimony, he made it clear that he did what he did that day — including helping to prevent the police from closing the gates to the tunnels — of his own accord. Here’s how Brandi described it:

Following suboptimal testimony from Tarrio’s witnesses this week, defendant Ethan Nordean squeezed in witness testimony from an FBI confidential human source and Proud Boy who appeared in court using only his middle name, “Ehren.”

Unfortunately for the defense, “Ehren,” testified under cross-examination that he was not at the Capitol on Jan. 6 as an FBI informant in any meaningful sense. He was there, he affirmed, as a member of the Proud Boys. Though the spelling of his name was not reported into the record, “Ehren” would appear to be the individual that Jan. 6 internet sleuths have identified as “TrackSuitPB.”

In video footage, jurors could see how “Ehren” entered the Capitol carrying zip tie cuffs he said he acquired incidentally as a memento of sorts. At another point, he appears in capitol CCTV  footage flanked by Kansas City Proud Boys like William “Billy” Chrestman, Chris Kuehne, and others, as he helps place a podium under an interior electric gate to keep it from closing while others set chairs in the way. Police are seen working over and over to drop the barrier as rioters advanced.

Poking holes in the defense’s direct and indirect suggestions over these many weeks of trial that the FBI was responsible for guiding the violence of Jan. 6, “Ehren” admitted he wasn’t instructed by the bureau to obstruct the gate. Or enter the Capitol. Or impede police. In hindsight, he admitted, he shouldn’t have helped prop open gates police were trying to lower at all.

While he testified, evidence was also presented to strongly support the government’s claim that he was playing up the “informing” he offered to the FBI.

“Ehren” texted his handler on Jan. 6 at 1:02 p.m. ET just as barriers were overrun: “Pb did not do it, nor inspire. The crowd did as a herd mentality. Not organized. Barriers down at capital [sic] building crowd surged forward, almost to the building now.”

During his interviews with the FBI in the summer of 2021, he claimed he was standing 100 people back from the front of the first breach. In court, however, footage showed him more like 20 or 30 people back. He was also close to defendant Zachary Rehl at one point as Rehl filmed from the fore of the crowd.

Note that Ethan Nordean’s attorney, Nick Smith, called Ehren to give this fairly counterproductive testimony. Smith also represents two of the defendants in the KC Cell, siblings Corey and Felicia. They have a status hearing scheduled before Tim Kelly on May 16. As he did on the Biggs’ co-traveler case, Veatch dropped off this case after the Leaders closing arguments.

Altogether, there are 19 people already charged (the 17 tools less Ochs, Scott, Worrell, and McDonald, plus two Rehl co-travelers and the four remaining KC defendants), plus McDonald and a few others otherwise treated as co-conspirators, who might face superseding charges or — at the very least — a more damning set of evidence based on trial testimony presented at the Proud Boy Leader case. Prosecutors may take the Pezzola verdict as a gauge of what a jury will find convincing, including that the larger Proud Boys group conspired to impede the police and Congress on January 6. That may not only expose some of these defendants to one or more additional felonies, but lay out how a networked conspiracy worked to assault the Capitol on January 6.

Update: According to this Vice News interview with one of the jurors, one reason they didn’t convict Pezz on sedition is bc he “may not have been bright enough to really know about the plan.”

Dominic Pezzola, “Spazzo”, was acquitted on seditious conspiracy. What was the difference there? Why was he acquitted when the others were found guilty? 

Well, he wasn’t in leadership for one. And he only joined the Proud Boys in November or December of 2020.  So he didn’t have a whole lot of time before Jan. 6. They have the different tiers you know, level 1 to level 4. Spazz was a 2 or 3 and on a fast track because he was so expressive of being a bad boy. We actually deadlocked on Spazz at first. But we got through that and said not guilty. Another factor was just that he wasn’t the brightest bulb on the porch. And may not have been bright enough to really know about the plan. So I said, well, poor guy.  He should’ve listened to his father-in-law, who told him “don’t go.”

The juror’s testimony about the demeanor of Pezzola and Rehl in their testimony closely matches what Brandi found.

The “Diligent” Proud Boys Jury: “Can we also get a stapler, please?”

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Yesterday, there were several interesting notes in the Proud Boys jury, including one — identifying a seeming discrepancy in their instructions — which led Judge Tim Kelly to note how diligent they were.

My favorite note, as I wrote at the time, asked for a stapler (I used to take off a point when students turned in papers using paperclips or dogeared pages rather than a staple).

I’d like to explain a different note, which may suggest where this jury is heading (and heading, it seems, in the reasonably near future). It asks:

  1. For counts 1 + 4, the conspiracy charges that have more than one goal listed, can one agreed upon objective of the conspiracy simultaneously satisfy both goals?
  2. We did not receive instructions on what to do if the jury does not reach unanimity on a charge. How should we proceed in this scenario?

The two counts in question were the seditious conspiracy charge, which the jury instructions describe this way:

Count One of the indictment charges that from in and around December 19, 2020, through in and around January 2021, the defendants participated in a conspiracy to do at least one of two things: (1) to oppose by force the authority of the Government of the United States, or (2) to prevent, hinder, or delay the execution of any law of the United States by force.

And the instructions describe the fourth, interfering with a government agent, this way:

Count Four of the indictment charges that from in and around December 19, 2020, through in and around January 2021, the defendants participated in a conspiracy to prevent Members of Congress and law enforcement officers from discharging their duties, which is a violation of the law.

[snip]

First, that the defendant agreed with at least one other person to, by force, intimidation, or threat, (a) prevent a Member of Congress or a federal law enforcement officer from discharging a duty, or (b) induce a Member of Congress or federal law enforcement officer to leave the place where that person’s duties are required to be performed.

One scenario where the jury might pose this question is if they believed some or all of the Proud Boys had agreed to and succeeded in obstructing the certification of the vote (the 1512 conspiracy), which is pretty close to Count One(2) and Count Four(b), but didn’t believe some or all had taken up force against the government (which was a stretch in this case since the violence exercised here was via “tools” who attacked the cops).

The inclusion of the question about not reaching unanimity suggests the possibility of a hung count on these or another charge. That happened, for example, in the lesser Oath Keepers case, but the hung count could just pertain to one of the defendants (perhaps Zach Rehl, who said the least inflammatory things in advance of the attack, or Dominic Pezzola, who only joined the conspiracy at a late moment, or Henry Tarrio, who wasn’t present).

One way or another they were down to the nitty gritty questions when they sent this note at 10:47AM yesterday. The response could make or break the sedition charge, too. So the lawyers discussed it for hours.

While they were waiting for their answer to that, they asked the “diligent” question, what to do about a charge invoking Charles Donohoe’s role in throwing a water bottle, given that a different instruction told them not to make any inferences about why people weren’t charged (Donohoe pled guilty last summer). At 3:19PM on Monday, they had asked for the exhibit numbers pertaining to that charge, so they seem to be a bit perplexed by Count Eight, which charges aid and abet liability in an assault for throwing a water bottle.

Per Roger Parloff, it took the lawyers and Judge Kelly more than three hours before they sent back a response to the 10:47 AM note. So they likely got significantly further in their deliberations before they got those two answers.

Here are the jury notes and responses:

  1. Please provide exhibit numbers for Rehl’s phone crossing the barricade and Biggs suggesting they pull their masks up. Response
  2. Please provide the following exhibits: police shield, megaphone, org chart. Response
  3. Please provide a stapler (and exhibit 490A). Response
  4. Upcoming appointments (in response to a question from the Courtroom Deputy)
  5. Please provide exhibit numbers for the Donohoe water bottle throwing examples. Response
  6. Clarification on multi-purpose conspiracies and non-unanimity on a charge. Response
  7. Clarification on persons not present. Response

Update: Now the “diligent” jury is asking the Court to fix the typo in their verdict form.

The Long List of Reasons Why Potential Intimidation of Proud Boy Jurors Must Be Taken Seriously

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Enrique Tarrio has already been investigated by a grand jury in Prettyman Courthouse for any role he had in threats to undermine a criminal prosecution.

That’s important background to Brandi’s report, at the end of her update on the Proud Boys trial, of how much of last week the trial was halted for a series of sealed hearings.

Apart from routine objections launched by the defense to even the most mundane of issues and separate from the unending series of motions for mistrial, last week featured a new and unwelcome variable: the sealed hearing.

A sealed hearing, or a hearing closed to the public and press, is typically held when sensitive or classified matters are being discussed by the parties. Trial days were stopped and started three times last week for sealed hearings that stretched for more than an hour. A press coalition moved to unseal proceedings on at least one of those days but was promptly denied by Judge Kelly for reasons he failed to describe on the record.

Though the exact reason was not disclosed by the court (nor would one expect it to be at this point), CNN reported that multiple sources said the sealed hearing was prompted after a juror raised concerns that she was being followed. Another juror has said they were “accosted” but no further details were available.

As CNN reported, a juror had become worried that someone was following her.

A juror told the court an individual came up to her outside of a Washington, DC, metro station and asked if she was a juror, multiple sources told CNN. The juror told court staff she had seen the same individual on several occasions and thought they might be following her.

Some jurors appear to be split on their views of the incidents, people familiar said. One juror told the judge he thought it was possible the interactions were random and it might have been someone experiencing homelessness in the area.

[snip]

When other jurors found out about the incident, they also began to look out for the individual and had taken at least one picture of the person, according to someone familiar with the matter.

Other jurors also told the court in sealed hearings this week that they had been “accosted,” one source told CNN, though it’s unclear to what extent.

But that report and some of the discussions I’ve seen elsewhere didn’t describe the list of reasons why such threats should be taken seriously.

First, there’s the fact that defendant Enrique Tarrio has already been investigated in this courthouse for his potential role in a threat against a judge. In 2019, Amy Berman Jackson put Roger Stone under oath and asked how he came to post an Instagram post of her with crosshairs on it. He blamed the “volunteers” who had made the meme — one of whom, he named, was Tarrio.

Amy Berman Jackson. How was the image conveyed to you by the person who selected it?

Stone. It was emailed to me or text-messaged to me. I’m not certain.

Q. Who sent the email?

A. I would have to go back and look. I don’t recognize. I don’t know. Somebody else uses my —

THE COURT: How big is your staff, Mr. Stone?

THE DEFENDANT: I don’t have a staff, Your Honor. I have a few volunteers. I also — others use my phone, so I’m not the only one texting, because it is my account and, therefore, it’s registered to me. So I’m uncertain how I got the image. I think it is conceivable that it was selected on my phone. I believe that is the case, but I’m uncertain.

THE COURT: So individuals, whom you cannot identify, provide you with material to be posted on your personal Instagram account and you post it, even if you don’t know who it came from?

THE DEFENDANT: Everybody who works for me is a volunteer. My phone is used by numerous people because it can only be posted to the person to whom it is registered.

[snip]

[AUSA] Jonathan Kravis. What are the names of the five or six volunteers that you’re referring to?

Stone. I would — Jacob Engles, Enrique Tarrio. I would have to go back and look

As CNN itself later reported, those whom Stone named were subpoenaed to testify about whether Stone had paid them to make threatening memes targeting his judge.

Tarrio, the leader of the Proud Boys, had been helping him ​with his social media, Stone said under oath, as had the Proud Boys’ Florida chapter founder Tyler Ziolkowski, who went by Tyler Whyte at the time; Jacob Engels, a Proud Boys associate who is close to Stone and identifies himself as a journalist in Florida; and another Florida man named Rey Perez, whose name is spelled Raymond Peres in the court transcript​.

A few days later, federal authorities tracked down the men and gave them subpoenas to testify to a grand jury, according to Ziolkowski, who was one of the witnesses.

Ziolkowski and the others flew to DC in the weeks afterwards to testify.

“They asked me about if I had anything to do about posting that. They were asking me if Stone has ever paid me, what he’s ever paid me for,” Ziolkowski told CNN this week. When he first received the subpoena, the authorities wouldn’t tell Ziolkowski what was being investigated, but a prosecutor later told him “they were investigating the picture and if he had paid anybody,” Ziolkowski said. He says he told the grand jury Stone never paid him, and that he hadn’t posted the photo.

So four years ago, in this very courthouse, Tarrio or his associates were questioned about the circumstances of any participation they had in threatening a judge.

That wasn’t the only role the Proud Boys had in Stone’s witness tampering in that case. The first contact that Randy Credico had with FBI agents investigating 2016 was not the highly publicized grand jury testimony to which he brought his comfort dog Bianca. It was a Duty to Warn contact earlier that summer after the FBI had identified credible threats against him. Those credible threats came from the gangs, including the Proud Boys, that Stone hung out with.

In entirely unrelated news, Credico posted pictures showing him in Moscow last week.

It didn’t end with Stone’s guilty verdict, either. After the verdict, Stone associates got leaked copies of the jury questionnaires. Mike Cernovich started hunting down details on the jurors to retroactively cast doubt on the judgment, and Trump joined in the effort to create a mob. In the wake of those efforts, the jurors expressed fear and some regret at having served.

ALL 12 OF the jurors in the Roger Stone case have expressed fear in court filings on Wednesday. They worry they will continue to be harassed and they fear for the safety of themselves and their families if their identities are revealed.

According to The National Law Journal, jurors cited tweets from President Trump and remarks from conspiracy theorist Alex Jones as the reason “the threats to the jurors’ safety and privacy persist” after the trial ended in November.

One juror wrote, “I try to stay away from danger, but now it seems like the danger is coming to me.”

The jurors are looking to thwart the legal efforts of right-wing conspiracy theorist Mike Cernovich, who is attempting to make public the pretrial questionnaires the jurors filled out. Those questionnaires include jurors’ private information and employment history. The supposed aim of the petition to release the questionnaires is to vet them for bias in hopes of getting a new trial for Stone.

Another juror wrote, “Given the current climate of polarization and harassment, I do not want to draw any attention to myself, my family, or my employer in any way, shape, or form. It is intimidating when the president of the United States attacks the foreperson of a jury by name.”

“I am frightened that someone could harm my family simply because I was summoned and then chosen to serve on the jury,” another juror wrote.

The efforts to intimidate have continued to this case. During a period when Zach Rehl was reportedly considering a plea, Tarrio sent messages to other Proud Boys about remaining loyal.

“The bigger problem with that is the guys that are in prison right now are holding on to hope that everybody is f—ing staying put because they didn’t do anything wrong,” Tarrio said. “The moment that they think one of the guys flipped, it throws everything off and it makes everybody turn on each other, and that’s what we are trying to f—ing avoid.”

Asked about the audio message, Tarrio told Reuters he was simply trying to stop members from speculating that anyone had decided to help prosecutors who are examining the deadly insurrection. “What I was trying to avoid is them turning against each other because of media stories,” he said.

Trial testimony showed that witnesses for the defense — in this case Fernando Alonzo — made threatening comments about Eddie Block for posting the video of the Proud Boys he shot on January 6. [Warning: he used an ableist slur against Block, who relies on a mobility scooter.]

Witnesses for other January 6 defendant have been harassed, as when one January 6 participant confronted Sergeant Aquilino Gonell during the trial of Kyle Fitzsimons on assault charges.

[January 6 participant Tommy] Tatum also tried to confront another officer, this one with the Capitol Police, in a courthouse elevator on Wednesday. He recorded and posted clips of both exchanges with the officers and identified himself outside the courthouse.

U.S. Capitol Police Sgt. Aquilino Gonell, who is also testifying in the trial, said that Tatum told him that he should be ashamed of himself in an exchange near the bathroom inside the courthouse on Wednesday. Shortly after, Tatum got into an expletive-laden confrontation with David Laufman, an attorney for Gonell, after he tried to get into an elevator with Gonell, Laufman and an NBC News reporter.

NBC News separately heard Tatum make negative comments inside the courthouse about how he believed Gonell was acting. Outside the courthouse, Tatum recorded himself accusing Gonell of committing perjury.

The confrontations with Gonell came before the conclusion of his testimony in the case against Fitzsimons, who is accused of assaulting Gonell inside the tunnel. Gonell’s cross-examination by Fitzsimons’ federal public defender will continue on Thursday morning.

“For Sgt. Gonell to be accosted like that, within the courthouse and while he remains a live witness at trial, was outrageous and amounts to witness intimidation that promptly should be addressed by the court as well as the FBI and the Department of Justice,” Laufman, who is representing Gonell pro bono, told NBC News on Wednesday night.

Finally, there are other key players in January 6 — most notably former Green Beret, Ivan Raiklin, who played a key role in Operation Pence Card, the effort to pressure Pence to overturn the election — who lurk around all events associated with January 6. Fellow Proud Boy Gabriel Garcia, in a recent bid to avoid pre-trial release sanctions for going to CPAC after he told Judge Amy Berman Jackson he was coming to DC to observe — among other things — the Proud Boys trial, claimed that he hung out with Raiklin at CPAC to formulate his defense.

While at CPAC, Mr. Garcia was working on his defense to these charges. Indeed, he asked Congressman M. Gaetz, who is from Mr. Garcia’s home state, how and when could his defense team access the 40,000 hours of unreleased video Capitol Police have. Also, he and his counsel met, and conferred extensively with, attorney Ivan Raiklin, whom they may retain for assistance and trial preparation. Mr. Raiklin had spoken to Mr. Garcia on March 2 at CPAC, and he told Mr. Garcia to return the next day with his counsel to discuss at length defense strategies, which they did.

Former Army Captain Garcia is one of the Proud Boys who, in exhibits submitted at trial (here, Gabriel PB), was issuing the most chilling threats in advance of January 6.

None of this makes things easier for Tim Kelly, as he tries to sustain this jury long enough to get through deliberations. It’s not yet clear whether the jurors, watching testimony about the extent to which Proud Boys using intimidation to protect their organization, are seeing shadows, or whether there’s a real attempt to intimidate jurors before they start deliberating.

But given the history of individuals directly associated with the defendants, the threat is not an idle one.

Proud Boys seditious conspiracy trial enters 32nd day

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From emptywheel, 4/2: Thanks to the generosity of emptywheel readers we have funded Brandi’s coverage for the rest of the trial. If you’d like to show your further appreciation for Brandi’s great work, here’s her PayPal tip jar.

Hello, I’m Brandi Buchman and I am a reporter covering the aftermath of the attack on the U.S. Capitol on Jan. 6, 2021. I have covered the events of Jan. 6 since their inception and I have covered the Proud Boys seditious conspiracy trial since its start as well as the first Oath Keepers seditious conspiracy trial gavel-to-gavel.

It is the 32nd day (and eighth week) of the Proud Boys seditious conspiracy trial involving ringleader Henry “Enrique” Tarrio and his cohorts Ethan Nordean, Joseph Biggs, Zachary Rehl, and Dominic Pezzola. After a break for jurors on Monday—a lengthy motion hearing was held outside of their presence—they will return on Tuesday to hear more evidence from the prosecution as the historic trial trudges toward its expected end this April.

Monday’s motion hearing focused exclusively on the admissibility of certain evidence presented under a key legal argument advanced by the prosecution known as the “tools” theory. In short, prosecutors argue that roughly two dozen associates and/or members of the Proud Boys were utilized as blunt “tools” by the defendants on Jan. 6 to pull off the plot to forcibly stop the certification of the 2020 election.

It was Tarrio and his fellow chapter leaders, the Justice Department contends, who handpicked the “tools” of the conspiracy, and of those individuals identified, most were not charged alongside Tarrio, Nordean, Biggs, Rehl, or Pezzola. The defense has balked over whether some of the tools were truly members of Proud Boys and has suggested this “catch-all” approach by the prosecution is improper.

Presiding U.S. District Judge Timothy Kelly has for weeks accepted the government’s “tools” theory as viable, so the fight during Monday’s motion hearing largely revolved around the admissibility of specific video footage featuring roughly two-dozen so-called “tools” of the conspiracy.

Here’s a bit of background for the “tools” listed by prosecutors:

William Pepe, a former Proud Boy of New York, was seen near Pezzola in footage from Jan. 6 and he was originally charged in the same indictment. Pepe was also a member of Boots on the Ground, a Proud Boys chat set up specifically for Jan. 6, 2021. He was not, however, a member of the Ministry of Self-Defense chat where operations for the Capitol assault were allegedly hashed out among a core group of Proud Boy leaders including the defendants.

Barton Shively, a former aspiring Proud Boy of Pennsylvania—allegedly—is seen on footage from Jan. 6 where he’s near the Washington Monument on the morning of the 6th. This was a designated meet-up location for the defendants, prosecutors argue. Shivley has already pleaded guilty to assaulting police.

Christopher Worrell, a Proud Boy of Florida who used a chemical spray on officers and was a member of Boots on the Ground chat, is seen in video clips from Jan. 6 where he’s very close to fellow Proud Boys who breached barriers.

Dan “Milkshake” Scott, a Proud Boy of Florida, breached police lines after marching with Proud Boys. Defense attorneys on Monday vehemently denied Scott’s membership with the organization.

Barry Ramey, an alleged Proud Boy of Florida, was in Scott’s proximity on Jan. 6 as they marched on the Capitol. Ramey has been charged with assaulting police with chemical spray and defense attorneys for Tarrio have argued he is not an official member of the extremist group.

Marc Bru, a Proud Boy from Washington state, is seen on video footage leading a group of people toward the Capitol, according to prosecutors.

Trevor McDonald, who entered the Capitol with defendant Joseph Biggs, has been brought forward as a tool of the conspiracy by prosecutors but evidence of his direct connection to the Proud Boys struck Judge Kelly as thin. McDonald came to Washington on Jan. 6 with his father, Shannon Rusch. In video clips, McDonald is seen near Biggs, Nordean, and Rehl as well as other Proud Boys like Gilbert Fonticoba, Arthur Jackman, and Paul Rae.

Ronald Loehrke, an alleged Proud Boy of Washington state, received a text from defendant Ethan Nordean leading up to the Capitol attack where Nordean suggested bringing him to the front lines. Loehrke promised in return that he would bring “bad motherfuckers” to the Capitol.

James Haffner of Washington state appears in Jan. 6 footage wielding chemical irritants, and prosecutors say evidence shows Haffner standing close to Biggs before helping tear apart barricades at the Capitol.

Nicholas Ochs, a Proud Boy chapter leader from Hawaii and onetime elder of the extremist group, made it into the Capitol on Jan. 6 and recorded another Proud Boy, Nicholas DeCarlo, writing “Murder the Media” onto a door. Once inside, prosecutors say Ochs interacted with Nordean.

Gilbert Fonticoba, a member and alleged “captain” of the Proud Boys Ministry of Self Defense group, Fonticoba participated in the Proud Boys Boots on the Ground chat where operations for Jan. 6 were siloed. Prosecutors say Tarrio invited Fonticoba into the Ministry group chat but defense attorneys have denied this connection. Other evidence shows Fonticoba reported his location back to Proud Boy Aaron Wolkind during some of the thickest rioting and after Wolkind told Proud Boys he was “storming the Capitol” several times.

Paul Rae made it inside of the Capitol on Jan. 6 and prosecutors argue they heard Rae on footage telling members to “find” former Speaker of the House Nancy Pelosi.

Arthur Jackman met up with Proud Boys at the Washington Monument on the morning of Jan. 6 and is an alleged member of the group.

Eddie George Jr. of Florida, a member of the Ministry of Self-Defense chat, appeared in a selfie with Biggs and Nordean on Jan. 6 and faces multiple charges including obstruction, disorderly conduct, and civil disorder.

Nate and Kevin Tuck, are a father-son duo from Florida. Kevin Tuck was a police officer and Nate Tuck was a former police officer who resigned in 2020. Kevin Tuck resigned after his arrest in July 2021.

Alan AJ Fisher III was a member of both the Ministry of Self Defense and Boots on the Ground chat who joined Nordean and Joseph Biggs at an AirBnB in D.C. on the eve of the insurrection. Footage shows Fisher at the lower west terrace tunnel archway of the Capitol on Jan. 6, close to where some of the worst violence of the day occurred.

Brian Boele ends up at the lower west terrace tunnel archway and may have been a direct part of the violent push inside the tunnel.

Dion Rajewski ends up at the lower west terrace tunnel archway with Fisher III and Zach Johnson and others.

Zach Johnson, a member of Boots on the Ground chat appeared in a selfie with defendant Biggs, at the lower west tunnel archway. He also appears in video footage from the west plaza where Biggs, Nordean, and others are spotted near him. Also appearing in the video from this time and place are Rae, Boele, Fonticoba, and Fisher.

James Brett IV was at the lower west tunnel archway and was later seen inside of the Capitol.

Other individuals like Robert Gieswein and William Chrestman were initially featured on the government’s list of “tools” of the conspiracy. But on Monday, neither Gieswein nor Chrestman made the cut.

Though he was short on details on Tuesday morning once court was underway, Judge Kelly said he would exclude evidence from Barry Ramey and Barton Shivley.

“The constellation of information we knew about these two people didn’t get over the hump as far as evidence being sufficiently relevant,” Kelly said.

Video evidence identifying Dion Rajewski, Brian Boele, and James Brett will be excluded in part for now but videos showing AJ Fischer and Zach Johnson in this group can be included. Kelly said footage involving AJ Fisher and Zach Johnson can come in because they are seen marching with defendants on the national mall.

To save the jury time this morning, Judge Kelly said he would explain his decisions at length about the “tools” of the conspiracy in writing later.

Welcome to Brandi Buchman

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As some of you likely know, last week, Brandi Buchman was one of a number of people laid off from DailyKos.

She was laid off perhaps halfway through her coverage of the Proud Boy Leaders trial (and in the midst of a really tough personal week for her). This trial is of historic import, both on its own terms, and for the prospect of holding related participants in January 6 accountable. She is just one of a few journalists who has covered the grueling trial from the start.

We at emptywheel are really privileged to welcome Brandi to emptywheel to finish her important work covering the trial. I know I’ve relied on Brandi’s coverage; if you haven’t yet followed her live-tweeting, she’s at https://twitter.com/brandi_buchman.

The trial is likely to last at least five more weeks — another week for the government case, plus at least two weeks for defense witnesses (the lawyer Joe Biggs shares with Alex Jones, Norm Pattis, claims he wants to call Donald Trump to testify), plus any rebuttal case, and finally, jury watch.

We don’t host advertising and do not paywall our site.

From emptywheel, 4/2: Thanks to the generosity of emptywheel readers we have funded Brandi’s coverage for the rest of the trial. If you’d like to show your further appreciation for Brandi’s great work, here’s her PayPal tip jar.

Thanks!

And welcome to Brandi!

Judge Kelly’s Basis for His “Tools” Determinations

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Since the beginning of the Proud Boys case, there has been an ongoing dispute about the government’s “tools” theory of the conspiracy, which argued that there were a bunch of people (which was trimmed after pre-trial hearings) whom Proud Boy leaders used to execute their conspiracy. This post explains that dispute.

These people are not accused or alleged to be part of one of the parallel conspiracies charged against the Leaders, and so normal hearsay rules will not apply as normal. But they are people who, the government alleges, the Leaders pulled together as recruits to make the attack happen.

Part of this dispute pertains to whose actions at the Capitol can be shown, as video evidence, to the jury in association with the Proud Boy Leaders. I think the case presents what I call a “view-say” exception, in which assaults committed by associates in places at the Capitol where no Leader was present, may or may not be shown to the jury. On the first day of trial, for example, Judge Kelly deferred on whether assaults that took place in the Tunnel should be shown, since no Leader was present.

But a big part of the debate pertains to how many of the communications on one or another of the Telegram threads the Leaders used to organize the Proud Boys can be introduced as evidence.

Last Friday, Judge Kelly issued his order on the issue verbally in what takes up about 80 pages of transcript. I wanted to lay out his logic here, so it is broadly accessible.

First, let me clarify an issue that came up on Monday, as we argued this, about who might count as a tool. On the one hand — it seems to me that the tools fall into two buckets for purposes of this case generally, as the Government has argued it. On the one hand, you have people whom the defendants or their cooperator — or their co-conspirators marched toward the Capitol on January 6th to whom they had some alleged nexus or relationship in the, sort of, physical effort of what happened that day on January 6th. And in — separately, you have the group we’re dealing with here, which is Proud Boys whom the defendants and their co-conspirators hand-selected to join the MOSD. Of course, there’s some overlap between these two groups of people. But I certainly don’t think, over the argument of some defendants, that someone ultimately had to be in one group for their statement to — or their conduct to be relevant for the — to this case. In other words, to be a tool, you didn’t have to necessarily believe — belong to both of those, sort of, groups.

I’ll next note that, again, by and large with regard to the tools evidence, I didn’t see any true hearsay issues there. It’s clear to me that the bulk of these statements, at least, were not offered as assertions but rather as circumstantial evidence of the tools’ motive and intent in the days leading up to January 6th. And to the extent they are assertions of the tools, they would fall under Rule 803(3) which allows statements expressing the declarant’s motive, intent, or plan to be admitted for the truth of the matter asserted.

But, of course, after clearing the hearsay bar, statements must still be relevant and satisfy Rule 403 balancing. So here’s the line I drew on that front. Where a purported MOSD tool’s statement expressed a more specific, concrete intent to use force or to act unlawfully on January 6th, I admitted them. But — or at least where the statement could — where you could infer that. But where, in my view, a statement was less specific, or tended to be more — a general reference to violence or perhaps even to a joke, I excluded them.

For — as for those I admitted, I think the statements are relevant/admissible because they do shed light on what the purpose of the MOSD was, which is a central issue in the trial. As I mentioned, the defendants have consistently argued — and even opened on the idea — that the MOSD was intended to create more of an organizational structure and a hierarchy at rallies for defensive purposes. And in short, the Government’s theory is that, at least with regard to January 6th, it was intended for an offensive purpose.

Thus, I think that the state of mind, in the days leading up to January 6th, of those that the co-conspirators and the defendants in this case vetted to be in the MOSD is relevant. And it’s an important factor supporting — and it is an important factor that, sort of, reinforces their relevance that the evidence shows that the defendants and their co-conspirators did select them. In fact, as Mr. Rehl says in Exhibit 503-10, everyone in the group was, quote, Represented by someone who trusted them to be there. That’s a little bit of a butchering of that quote, but I think that’s the essence of it.

The relevance of these exhibits is further buttressed by the fact that these statements were not rebuked by any of the defendants or their co-conspirators that were present in these chats as MOSD organizers. Now, we’ve talked about this a lot. I think, ordinarily, the idea that a single individual’s failure to respond to a comment in a chat — the idea that that can be relevant or some kind of adoptive admission in some way is a stretch in general, and it’s probably not a theory that would fly in a typical situation. Certainly, the bigger the chat that there is, the more public it is, and all the rest. But I think, here, that the failure to do so — not of one person, but collectively of all the people at issue, the four defendants here who were in those chats, plus their alleged co-conspirators — all those people’s non-responsiveness to some of these things is relevant, and it bolsters the overall relevance of the exhibits I decided to admit, especially because it’s clear that at least some of the defendants — again, there is evidence here — some of the defendants were monitoring the MOSD chats to ensure they stayed on topic.

Indeed, the stated rules of the MOSD chat made clear that the members had to stay on topic, and on a couple of occasions to which the Government has directed me, defendants or co-conspirators did, either in the group or amongst themselves, rebuke members’ suggestions that they viewed as outside the MOSD’s parameters. For example, in Exhibits 505-20 and 505-21, Mr. Stewart, Mr. Bertino, and Mr. Tarrio criticize an MOSD member in the MOSD Op group for suggesting that the group discuss what to do about, quote, Unaffiliated Proud Boys wearing colors, closed quote. Stewart admonished that there was nothing to talk about because the MOSD has a mission; either get with it or eff off, and that they were there for a reason. And Mr. Tarrio followed up by instructing everyone to focus. Mr. Bertino stepped in to emphasize that the member’s comment was not appropriate in the MOSD chat because the group had a mission and they didn’t want to be distracted from it. And in Exhibit-525-7, Defendant Biggs messaged Defendant Tarrio expressing in the — that the MOSD chat had already become annoying because members were talking about other events.

So importantly, in weighing whether to admit certain tools exhibits and drawing the line I did, I admitted only those exhibits where I thought there was a stronger inference that the comment would have drawn a rebuke from one of the defendants or one of their co-conspirators if the mission of the MOSD had truly only been defensive in nature.

So for all those reasons, I found the handful of the exhibits I admitted on this theory — the tools theory — were relevant, and also, satisfied Rule 403.

Before I move on to the categories of the documents, as one more offshoot of the tools issue — it doesn’t go to the admissibility of these documents, but it goes to the grounds for admissibility of statements made to — by other people, including the defendants, to the tools — I want to address one additional point that came up on Monday. Counsel for Mr. Nordean argued to me that several exhibits that the Government offered as co-conspirator statements could not have been in furtherance of the conspiracy simply because the statements at issue were made to non-co-conspirators, including tools. But in the United States v. Tarantino, the D.C. Circuit explained that if a statement, quote, Can reasonably be interpreted as encouraging a co-conspirator or another person to advance the conspiracy, or as enhancing a co-conspirator or another — or other person’s usefulness to the conspiracy, then the statement is in furtherance of the conspiracy and may be admitted. That case is 846 F.2d 1384 at 1412, a D.C. Circuit case from 1988. So to the extent that Mr. Nordean objected on that basis to several of the exhibits I’m about to discuss, particularly those involving the defendants’ or the co-conspirators’ statements to tools, that argument is foreclosed by Circuit precedent.

Pezzola

How J6C’s Obstinance on Transcripts Enabled Dominic Pezzola’s Attempt to Sow Conspiracy Theories

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On Friday, lawyers for Proud Boy Dominic Pezzola (who are among the more conspiratorial of the Proud Boy defense attorneys) filed a motion for a mistrial claiming that the “Winter Palace” document Enrique Tarrio received from one of his at least three girlfriends was created by the government. Here’s how the document was admitted as evidence last Thursday.

At issue is testimony that Samuel Armes provided to the January 6 Committee (and, as we’ll see, a grand jury) regarding his recognition that a document he created as part of imagining how an attack on the electoral certification would happen was altered to become the Winter Palace document.

Pezzola’s lawyer, Robert Root (who joined his team days before trial started) argued that when Judge Kelly ruled the document was admissible back in December, defense attorneys had not yet seen Armes’ testimony, and so could not argue that Armes — who claimed he had been trained to be a spook — was a government agent framing the Proud Boys.

According to the Politico article, Ms. Flores also gave an interview to the Jan. 6 Committee. And Ms. Flores reportedly testified that Armes was the author of the entirety of “1776 Returns” and that this FBI and CIA member or associate asked her to share it with Tarrio.

If true, this means that the most damning document in this trial was authored by the intelligence community—someone “groomed” by the FBI itself. And this CIA and FBI asset requested Tarrio’s friend to share the document with Tarrio just prior to January 6. [emphasis original]

The filing relies heavily on this Politico story, which extrapolates about a communication the January 6 Committee had with the girlfriend in question, Eryka Flores, but which was not released as a transcript.

In my opinion, this filing was designed first and foremost as bait for Jim Jordan to claim that even the Proud Boy prosecution is just the Deep State trying to frame Donald Trump, and only secondarily as yet another of the often frivolous motions for a mistrial defense attorneys have lodged in this case.

But the government has responded in here, partly by (inappropriately, in my opinion) mocking the illogic of Pezzola’s challenge, before going on to explain how the testimony of Armes, at least, totally rebuts Pezzola’s claims.

The government strongly disagrees with Pezzola’s characterization of both the facts and the record with respect to these assertions. The government robustly agrees with defendant Pezzola that it would have been egregiously improper for a member of the U.S. Intelligence Community to have conducted a domestic intelligence operation targeting Enrique Tarrio, a U.S. Person, and providing him with a plan to “storm” (or “occupy” or “sit in”) House and Senate Office Buildings on January 6. It would have been even more improper for a member of the U.S. Intelligence Community to send this plan to the leader of the Proud Boys when, just months before, then-President Trump had exhorted the Proud Boys to “stand back and stand by” during a nationally televised debate. And it would have been egregious indeed for a member of the U.S. Intelligence Community to send such a document to the leader of the Proud Boys in advance of January 6, in the wake of the violent attacks the Proud Boys were associated with in Washington, D.C., on November 14, and December 12, 2020. Surely, had the government planted such a document in the inbox of defendant Tarrio (ECF 660 at 5), one would hope that the U.S. Intelligence Community would have hewed to the truth of what happened on January 6 and included the Capitol as one of the targeted buildings.

The filing notes that, contrary to the claimed late notice with the release of the transcripts, the Proud Boys already received October 7 grand jury testimony from Armes that tracks his J6C testimony, a transcript from Flores’s May grand jury testimony showing her invoking the Fifth repeatedly, and a third witness describing receiving the document from Flores on a date that would be before she sent it to Tarrio on December 30.

The information that Samuel Armes drafted a document that inspired portions of the Government Exhibit 528-1 was disclosed to defense counsel by the government on November 16, 2022, when it provided counsel with a copy of Armes’ October 7, 2022, grand jury testimony.

[snip]

Armes testified that he shared his “wargaming” exercise in the form of a three- to five-page Google document with “Erika Flores” sometime between August 2020 and January 2021. 7/18/2022 HSC Tr. at 12; 10/6/2022 Grand Jury Tr. at 26. When asked why Flores told the House Select Committee that Armes had drafted the document, he testified “I guess she is just blame shifting.” 7/18/2022 HSC Tr. at 20. Armes surmised that Flores had taken his “ideas as an inspiration, and her or some group of people then turned it into ‘1776 Returns.’” Id. Indeed, when subpoenaed to testify before the Grand Jury in this case on May 3, 2022, Flores answered only brief biographical questions and then invoked her fifth amendment right not to testify repeatedly in response to more than 50 transcript pages worth of questions by the government about the “1776 Returns” document. That transcript was provided to defense counsel on November 16, 2022.1

1 On that same day, counsel were provided with the grand jury transcript of another witness who testified that a girlfriend of Enrique Tarrio known as “Erika” had messaged a document to the witness about two weeks before January 6 and asked the witness to fill in the names of people to participate in an “infiltration plan.” The witness further recalled that the individuals were to dress like they belonged in the buildings and to have set up prior meetings to gain access. Compare Government Ex. 528-1 at pages 3, 6.

The third witness may be Jeremy Liggett, whom J6C investigators suggested had some tie to the document as well.

There are just three problems with this.

First, as Politico reported today, Flores didn’t invoke the Fifth to the J6C.

Two investigators familiar with her interview — an informal, untranscribed appearance in early 2022 — say that while she was a reluctant witness and initially planned to plead the Fifth, she ultimately agreed to answer some questions about the document.

“Instead of pleading the Fifth, we did an interview with her,” one of the investigators said, speaking on condition of anonymity to describe information the committee had not publicly released. “She gave us the name of Samuel Armes as the name of the individual who wrote the document.”

[snip]

The select committee investigators said they found Armes to be more forthcoming than Flores, who they said exhibited a “general apprehension.” Flores didn’t respond to messages and emails seeking comment.

“She acted like she didn’t know what it was at all,” said one of the investigators.

The two investigators said Flores indicated she had shared the document with Tarrio to impress him during a sensitive phase in their relationship and disclaimed specific knowledge about its contents.

The Stone-related witnesses very carefully manipulated the J6C, and Flores’ decision to testify may be an example. At the very least, Pezzola may have basis to demand that Kelly immunize Flores.

Another problem is that Jocelyn Ballantine is formally on the government response. I’ve noted before how insanely stupid it is for DOJ to have her in an increasingly senior role in the January 6 committee, and discovery disputes like this are precisely why.

The third problem with all this is that DOJ should be able to get Google metadata associated with the document to provide more clarity about the document. Perhaps a later witness will explain efforts to do so (thus far, it has just been introduced as an attachment to a Telegram text). But there are outstanding questions that may have answers.

In any case, this is now the second time that J6C’s refusal to turn over transcripts has endangered this prosecution.

Yes, It Turned Out January 6 Committee Endangered the DOJ Investigation by Withholding the Jeremy Bertino Transcript in June

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I often get accused of being an uncritical booster for DOJ on the January 6 investigation. In reality, I have focused my criticism on real problems with the investigation.

In fact several of the criticisms I’ve raised have borne out in recent days, as an attorney-client conflict that should have been identified in June threatened (and still threatens) to bollox the Proud Boy Leader trial, and with it the larger effort to tie Trump’s immediate associates with the crime scene.

Twice, for example, I’ve discussed how central Joe Biggs’ actions the day of the attack were to understanding the larger event. In the first, I described how Biggs’ chumminess with FBI agents led them to overlook his plans for a terrorist attack on the Capitol.

Something brought Joe Biggs, Florida Oath Keepers Kenneth Harrelson and Jason Dolan, along with former Biggs employer Alex Jones to the top of the East steps, along with the mob that Jones brought on false pretenses. Shortly thereafter, Florida Oath Keeper head Kelly Meggs would bring a stack of Oath Keepers through the same door and — evidence suggests — in search of Nancy Pelosi, whom Meggs had talked about killing on election day.

Joe Biggs kicked off the riot on the West side of the building.

Then he went over to the East side to join his former employer Alex Jones and a bunch of Oath Keepers, led by fellow Floridians, to lead a mob back into the Capitol.

West side. Joe Biggs. East side. Joe Biggs.

This is the guy a couple of FBI Agents in Daytona believed was a credible informant against Antifa.

A month later, I described how problematic it was that an AUSA who played a part in Sidney Powell’s efforts to spread false claims about Mike Flynn and Joe Biden before the 2020 election had a role (now reportedly expanded) in overseeing the prosecution of Biggs.

Because of Joe Biggs’ role at the nexus between the mob that attacked Congress and those that orchestrated the mob, his prosecution is the most important case in the entire January 6 investigation. If you prosecute him and his alleged co-conspirators successfully, you might also succeed in holding those who incited the attack on the Capitol accountable. If you botch the Biggs prosecution, then all the most important people will go free.

Which is why it is so unbelievable that DOJ put someone who enabled Sidney Powell’s election season lies about the Mike Flynn prosecution, Jocelyn Ballantine, on that prosecution team.

All that was clear by September 2021.

In that same time period, I was complaining and complaining and complaining about DOJ’s lackadaisical approach to attorney conflicts, first as John Pierce racked up 20 clients, most who served as a firewall to Biggs and the other Proud Boy leaders, and later as DOJ waited three months before inquiring into Sidney Powell’s alleged role in funding some of the Oath Keeper’s defense teams.

The importance to the Trump investigation of getting the militia conspiracies that implicate Roger Stone and Alex Jones right is one of the reasons I argued, in June 2022, that it was urgent for the Proud Boys’ prosecution team to get Jeremy Bertino’s transcript sooner rather than later.

On June 6, DOJ charged the Proud Boy Leaders with sedition. As I noted at the time, the single solitary new overt act described in the indictment involved Jeremy Bertino, Person-1, seeming to have advance knowledge of a plan to occupy the Capitol.

107. At 7:39 pm, PERSON-1 sent two text messages to TARRIO that read, “Brother. ‘You know we made this happen,” and “I’m so proud of my country today.” TARRIO responded, “I know” At 7:44 pm. the conversation continued, with PERSON-1 texting, “1776 motherfuckers.” TARRIO responded, “The Winter Palace.” PERSON-1 texted, “Dude. Did we just influence history?” TARRIO responded, “Let’s first see how this plays out.” PERSON-1 stated, “They HAVE to certify today! Or it’s invalid.” These messages were exchanged before the Senate returned to its chamber at approximately 8:00 p.m. to resume certifying the Electoral College vote.

Just days earlier, as part of a discovery dispute, prosecutors had provided this (dated) discovery index. For several reasons, it’s likely that at least some these entries pertain to Bertino, because the CE ones are from the Charlotte office, close to where he lives, because he’s one of the three uncharged co-conspirators of central importance to the Proud Boys efforts, and because we know FBI did searches on him.

In a hearing during the day on June 9, the Proud Boys’ attorneys accused DOJ of improperly coordinating with the January 6 Committee and improperly mixing politics and criminal justice by charging sedition just before the hearings start. In the hearing there was an extensive and repeated discussion of the deposition transcripts from the committee investigation. AUSA Jason McCullough described that there had been significant engagement on depositions, but that the January 6 Committee wouldn’t share them. As far as he knew, the Committee said they would release them in September, which would be in the middle of the trial. Joe Biggs’ attorney insisted that DOJ had the transcripts, and that they had to get them to defendants.

Judge Tim Kelly ordered prosecutors that, if they come into possession of the transcripts, they turn them over within 24 hours.

Hours later, during the first (technically, second) January 6 Committee hearing, the Committee included a clip from Bertino describing how membership in the Proud Boys had tripled in response to Trump’s “Stand Back and Stand By” comment.

His cooperation with the Committee was not public knowledge. I have no idea whether it was a surprise to DOJ, but if it was, it presented the possibility that, in the guise of cooperating, Bertino had just endangered the Proud Boy sedition prosecution (which wouldn’t be the first time that “cooperative” Proud Boys proved, instead, to be fabricators). At the very least, it meant his deposition raised the stakes on his transcript considerably, because DOJ chose not to charge him in that sedition conspiracy.

Today, in response to a bid by Dominic Pezzola and Joe Biggs to continue the trial until December, DOJ acceded if all defendants agree (Ethan Nordean won’t do so unless he is released from jail). With it they included a letter they sent yesterday to the Committee — following up on one they sent in April — talking about the urgency with which they need deposition transcripts.

We note that the Select Committee to Investigate the January 6th Attack on the United States Capitol (“Select Committee”) in its June 9, 2022 and June 13, 2022, hearings extensively quoted from our filings in active litigation and played portions of interviews the Select Committee conducted of individuals who have been charged by the Department in connection with the January 6th Attack on the United States Capitol.

It is now readily apparent that the interviews the Select Committee conducted are not just potentially relevant to our overall criminal investigations, but are likely relevant to specific prosecutions that have already commenced. Given this overlap, it is critical that the Select Committee provide us with copies of the transcripts of all its witness interviews. As you are aware, grand jury investigations are not public and thus the Select Committee does not and will not know the identity of all the witnesses who have information relevant to the Department’s ongoing criminal investigations. Moreover, it is critical that the Department be able to evaluate the credibility of witnesses who have provided statements to multiple governmental entities in assessing the strength of any potential criminal prosecutions and to ensure that all relevant evidence is considered during the criminal investigations. We cannot be sure that all relevant evidence has been considered without access to the transcripts that are uniquely within the Select Committee’s possession.

The discovery deadline for the Proud Boy case is tomorrow. If DOJ put Bertino before a grand jury and he said something that conflicts with what he told the Committee, it could doom his reliability as a witness, and with it the Proud Boys case, and with it, potentially, the conspiracy case against Trump.

Less than a week before I wrote that, there’s reason to believe, DOJ had flipped a key witness in the case.

It appears that DOJ did not get Jeremy Bertino’s transcript until around December 7. DOJ promised to give transcripts to the defendants within 24-hours after they received them, and DOJ provided 16-January 6 Committee transcripts on December 8.

And we now know the Bertino transcript was utterly critical to preparing for the trial, which is about to kick off. That’s because, in his deposition with the committee, Bertino explained at length both what appeared to be an attempt, by Joe Biggs’ attorney Dan Hull, to tie representation in a civil lawsuit to a deposition in the trial, and because Bertino had conversations with Hull on the day his girlfriend’s home was searched (which is probably when the FBI found the unregistered weapons described in Bertino’s plea paperwork).

A Yes. So I’m going to go back in my memory and try to remember the first time that I spoke with him. I believe it was after I received a civil suit from a church. I reached out to Enrique Tarrio and said, hey, I just got this subpoena or notice of civil suit. I think I need an attorney. And he’s like, oh, well, I’ll talk to Dan, my attorney, and I’ll see if he’ll take it for you. So I said okay. Couple of weeks went by, I didn’t hear anything. I got back in touch with Enrique and asked him, I said, hey, have you talked to your lawyer? And he’s, like, oh, yeah, Dan said he’ll do it for you pro bona because you were stabbed, but he wants to talk to you.

And so he sent me his phone number and I called Dan. I can’t remember when, what date, I don’t remember the specific details, but I do remember calling him and him basically asking me — or I was asking him about representing me in the case and he said oh, sure, sure, sure, we’ll get to that. But he was interested in possibly having me take the stand in the Joe Biggs’ trial about my stabbing to show why Joe was wearing body armor when he was in D.C. because there was a lot of talk after I was stabbed about guys making sure you had a stab proof vest on and stuff like that.

So I think his original intent was to get me on board to help his client. And then the next — I believe the next interaction I had was when I — Jay Thaxton reached out to me and was looking for representation for his deposition. And I said, hey, give this guy Dan a call. I sent him Dan’s number. And I guess Dan took care of his deposition, which I, you know, when I kind of heard what happened there, that’s when I became reluctant to have him represent me in this.

He didn’t seem very stable on the phone. I started to really listen to when he was talking and his rants, and I was, like, okay, this guy– I don’t think this guy’s great for me.

And then the morning that the FBI raided my girlfriend’s house I reached out to him because he was the only attorney that I knew and I was just kind of asking him for advice on how to handle everything.

And I specifically asked him for a retainer, like, can we sign a retainer paperwork, and he was, like, not right now, not right now. And I said okay.

Then a few days later, he asked — he called me — he would call me randomly late at night and go on, like, an hour rant about how the Proud Boys were little girls and just, I mean, off the rail conversations. I didn’t know what he was talking about. I was, like, my brain was popping trying to figure out what he was talking about. Then I believe he came to me and said, well, I’m going to — he said, do you want me to accept service on your behalf for the congressional thing, he said, but I’m not going to be able to be there because that date doesn’t work for me, so you’re going to have to go do it on your own.

I said no — and this was on a phone conversation, not a text conversation — I said no. He’s like, well, take 48 hours and think about it. This was on like a — I don’t even remember what day, but I believe it was the day before he actually accepted service from you guys. And he never got confirmation from me to accept service.

He said, well, just take 48 hours and think about it. I said, okay.

Next phone call I got from him was, hey, I accepted service, your date for your deposition is this day, and I’m not going to be there so you’re going to be on your own.

And that is pretty much when I cut off contact, I stopped responding to his calls and his text messages, and I hired Mr. Wellborn.

Bertino’s prior conversations with Hull were made all the more urgent because Norm Pattis, Alex Jones’ attorney, just got kicked off the case after having his license suspended in Connecticut for violating the Sandy Hook protective order, something we all knew was coming since November. [Update: Judge Tim Kelly is letting Pattis stay on the team, though it’s unclear in what role.]

Yesterday and today, Judge Tim Kelly hammered out some plan whereby Hull will be prevented from questioning Bertino, but that in no way eliminates the conflict. That in no way eliminates the risk of having Hull serve as the sole attorney in a case where he had privileged conversations with one of the key cooperating witnesses.

The J6C Committee is significantly to blame about this — at least by the time Bertino’s plea became public, they had to have recognized this conversation needed to be shared with prosecution.

But DOJ itself should have raised conflict issues with Pattis. At the time he joined Biggs’ team last summer, he was already representing Jones’ sidekick, Owen Shroyer, who had a bunch of calls with both Ethan Nordean and Biggs in advance of and during the attack.

Other, more prominent members of the Proud Boys appear to have been in contact with Jones and Shroyer about the events of January 6th and on that day. Records for Enrique Tarrio’s phone show that while the attack on the Capitol was ongoing, he texted with Jones three times and Shroyer five times.124 Ethan Nordean’s phone records reflect that he exchanged 23 text messages with Shroyer between January 4th and 5th, and that he had one call with him on each of those days.125 Records of Joseph Biggs’s communications show that he texted with Shroyer eight times on January 4th and called him at approximately 11:15 a.m. on January 6th, while Biggs and his fellow Proud Boys were marching at and around the Capitol.126

Meanwhile, the emergency motion to keep Pattis on the trial team claimed that both he and Hull are representing Jones.

He was suspended for disclosing confidential medical records to other lawyers working on related matters for our joint client, Alex Jones;

This is insanity! You’ve got two lawyers, both facing major ethical challenges, jointly representing Biggs, Jones, and Shroyer in prosecutions aiming to demonstrate that after Trump asked him to lead a mob to the Capitol, Jones coordinated the delivery of that mob to the Proud Boys.

And Pattis’ suspension will upend the prosecutions of both Shroyer — who at least claimed he would plead guilty at the end of this month — and a guy named Doug Wyatt, who has long been pegged by researchers as one of the rioters who seemed like he might be coordinating with others.

While a lot of people were wailing that J6C was way ahead of DOJ, I was raising concerns about the things that may upend the most important prosecution to date: that Bertino transcript and attorney conflicts.

It turns out I had reserved my complaints for the stuff that, as the trial kicks off, could be the thing that sinks it.