Prosecutors seek to show Jan. 6 videos at Proud Boys trial
By Alan Feuer and Zach Montague
From the start, prosecutors overseeing the trial of five Proud Boys charged with sedition in connection with the attack on the Capitol on Jan. 6, 2021, have faced a conundrum.
Scores of members of the far-right group took part in the storming of the Capitol and often played a decisive role in breaching barricades and assaulting police. But the use of violence by the defendants themselves — mostly leaders of the group — was relatively limited. Enrique Tarrio, the Proud Boys’ former chairman, and one of the men on trial, was not even in Washington that day.
In building a case against Tarrio and the four other defendants — Ethan Nordean, Joseph Biggs, Zachary Rehl and Dominic Pezzola — prosecutors have advanced an unusually expansive theory of the evidence. They have claimed that the jury should see videos of other Proud Boys and ordinary supporters of President Donald Trump in the crowd who acted violently during the assault even if those rioters had only limited connections to the defendants.
Prosecutors say Tarrio and the others wielded these rioters as “tools” of their conspiracy.
On Monday, the trial, now entering its eighth week in U.S. District Court in Washington, paused for a day as a federal judge heard arguments about which videos of these so-called tools should be admitted into evidence. The decision by the judge, Timothy Kelly, about what footage to let in was set to be made Tuesday and could shape how prosecutors seek to convince the jury that Tarrio and the others committed sedition by using force to stop the transfer of presidential power after the 2020 election.
The basic contours of the “tools of the conspiracy” approach were litigated weeks ago, and Monday’s hearing was held to give both sides an opportunity to argue for or against specific footage. Lawyers for the Proud Boys have sought for weeks to keep the videos out of the case, arguing that they make a mockery of the traditional understanding of conspiracy and criminal liability law and would in effect allow the government to tar their clients with guilt by association.
Kelly said he was likely to allow videos to be admitted if one of two things were true: The “tools” in question either had to have followed some of the defendants in the sprawling group of Proud Boys that advanced on the Capitol on Jan. 6, or they had to have been a member of one of the organization’s text message group chats that day.
Among the “tools” discussed at the hearing were Daniel Lyon Scott, a Florida Proud Boy known as Milkshake, who took part in an early scuffle with police outside the Capitol, and Ronald Loehrke, a Georgia man who clashed with officers several times during the assault. Shortly before Jan. 6, prosecutors say, Nordean, one of the defendants, sent Loehrke a text message saying, “I want you on the front lines with me.”
Prosecutors have also tried to include videos of Paul Rae, another Proud Boy from Florida who has been charged with obstructing a proceeding before Congress and who, prosecutors say, filmed himself inside the Capitol, saying “Let’s go find Pelosi.”
All along, the prosecution has contended that it needs to show the jury the videos to fully capture how Tarrio and the other top Proud Boys mobilized the mob on Jan. 6 to achieve their goal of stopping the certification of the election that was taking place inside the Capitol that day. Before the attack, Biggs spoke of recruiting “real men” to join the group in Washington on Jan. 6, and other leaders discussed riling up “the normies” — a reference to more normal Trump supporters who were not part of the Proud Boys.
Even though the “tools” and the “normies” may have been “in the dark about the precise details” of the defendants’ intentions, prosecutors have said in court filings, they “served as instruments of the defendants to carry out their criminal objective.”
The defense has argued against this approach, saying that the government should not be allowed to use “inflammatory episodes” loosely linked to the defendants as a means of demonstrating their guilt. In a series of court filings, the lawyers have called the approach “absurd” and proof that prosecutors are asking the judge for “an expanded power.”
“The argument is that just because defendants associated with people who did bad acts, they did bad acts,” Nicholas Smith, Nordean’s lawyer, said in court on Monday. “The other term for that is guilt by association.”
Showing the jury whatever videos the judge decides to allow is likely to last several days and follows a phase of the government’s case that focused on a star cooperating witness, Jeremy Bertino, a former Proud Boy who was injured during a pro-Trump rally weeks before Jan. 6 and was at home in North Carolina that day recovering from his wounds.
Bertino testified that he believed the defendants intended to stop the election certification by force in a bid to keep Trump in office, but he did so by describing an unusually broad and implicit version of conspiracy.
On Sunday, prosecutors filed court papers saying they have as few as five more witnesses to call — among them, an FBI agent who is expected to lead the jury through the video clips. The government has several more Proud Boys who have pleaded guilty under cooperation deals it could put on the stand, but it remains unclear whether any of them will be used during the trial.