Plans by the defendants’ lawyers to make an aggressive case to the jury have been scaled back as prosecutors have undercut testimony from defense witnesses.
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The Justice Department has tried to prove sedition charges against members of the Proud Boys in connection with the events on Jan. 6, 2021.
When the five Proud Boys now on trial for sedition charges stemming from the Capitol attack opened their defense two weeks ago, they were planning to make an unusually robust case to the jury.
Each of their lawyers was promising to call several witnesses and perhaps take as long as a week apiece to question them. Three or four of the defendants seemed prepared to roll the dice and take the stand themselves.
But by Thursday, as the lawyers signaled that they might complete their cases by next week, the plans for an aggressive defense appeared to have been scaled back. So far, none of the defendants has testified. And as for the witnesses whom the defense has called so far, their usefulness with the jury has been mixed at best.
The trial is now in its 11th week in Federal District Court in Washington. It is one of three so far in which the Justice Department has tried to prove sedition charges in connection with the events of Jan. 6, 2021, when a mob of President Donald J. Trump’s supporters assaulted the Capitol as Congress was certifying that Mr. Trump had lost the 2020 election. In the other two cases, six members of another far-right group, the Oath Keepers militia, were convicted of sedition at separate trials in late November and early this year.
It is unusual for defendants in a federal trial to mount a broad defense case. Their lawyers often prefer a more conservative approach, relying on cross-examining the prosecution’s witnesses and hoping to point out inconsistencies or weaknesses in the evidence or simply to sow doubt.
But coming into this trial, the lawyers for the five Proud Boys — Enrique Tarrio, Ethan Nordean, Joseph Biggs, Zachary Rehl and Dominic Pezzola — seemed almost bullish.
Some of them felt their clients would benefit from telling their stories directly to the jury despite the obvious risks of being cross-examined by prosecutors who had spent the better part of two years investigating them.
Others issued subpoenas to an array of witnesses — including several F.B.I. informants in the group — hoping they could rebut the government’s central allegation: that their clients had a plan in place to storm the Capitol on Jan. 6 and forcefully disrupt the lawful transfer of presidential power.
While many of the witnesses did insist under questioning by defense lawyers that they had never heard of a Proud Boys’ attack plan, most ran into problems on cross-examination by the prosecution. Again and again, prosecutors were able to show — sometimes with the aid of rulings from Judge Timothy J. Kelly — that the witnesses were more belligerent on, or in the run-up to, Jan. 6 than they had first presented themselves or had otherwise shaded the truth about what happened that day.
Judge Kelly also disallowed testimony from some witnesses the defense wanted to call and narrowed the scope of what others could say on the stand, compounding the defense’s problems.
Consider the case of Travis Nugent, a Proud Boy from the Pacific Northwest who marched with some of the defendants toward the Capitol but was never charged with a crime.
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Under questioning by the defense, Mr. Nugent testified that the Proud Boys had no plan for an attack that day and that he was “a bit shocked” when people — including several members of the far-right group — breached a barricade outside the Capitol. The riot felt “spontaneous,” he said, as if the mob had been led by a “herd mentality.”
On cross-examination, however, Conor Mulroe, a prosecutor, showed Mr. Nugent some aggressive messages he had written in a Proud Boys internal group chat in the run-up to Jan. 6.
“Always go ready to fight,” one of the messages read. “That’s the world we live in.”
Mr. Mulroe also got Mr. Nugent to admit that after a second breach of security at the Capitol, he tried getting Mr. Nordean to calm down the rioters around them, going so far as to ask a police officer if he could use his bullhorn. He acknowledged that he suggested to Mr. Nordean that they leave the area, saying it was “not a good idea” to be there any longer, but added that Mr. Nordean appeared to have ignored him.
Something similar happened in testimony a few days later when George Meza, another Proud Boy, took the stand and told the jury that the group of men picked by the organization’s leaders to be on the ground on Jan. 6 — the so-called Ministry of Self-Defense — was, as its name suggested, defensive, not aggressive, in nature.
Echoing that theme, Mr. Meza testified that the purpose of the Proud Boys was to stop “patriots” and “innocent Americans” from being harmed.
But, once again, things looked very different on cross-examination.
Prosecutors showed the jury a video — titled “If not now, then when?” — that Mr. Meza had made of himself inside his car a few days after the Capitol attack. In it, he expressed frustration with Mr. Trump’s allies in the Republican Party who had seemed upset by the violence of the riot.
“When is violence justified according to Republicans?” Mr. Meza asked in the video, adding, “In my opinion, we didn’t do enough.”
Mr. Meza added under questioning from prosecutors that he still believed reasonable people could conclude that President Biden’s electoral victory was the result of ballot box tampering during the pandemic and that those who entered the Capitol should still be held up as “heroes.”
The storming of the Capitol, he proclaimed, “was the most patriotic act committed in this country in the last 100 years.”
In January, as the trial moved toward opening statements, Nicholas Smith, a lawyer for Mr. Nordean, said that he had issued subpoenas to seven or eight F.B.I. informants in the Proud Boys who, by his account, could testify that the Capitol attack had erupted spontaneously. One of those informants — a member of the Proud Boys’ chapter in Kansas City — took the stand on Wednesday and testified under his middle name, Ehren.
Under questioning by Mr. Smith, Ehren told the jury that although he was among the crowd of Proud Boys that stormed the Capitol, he went to Washington on his own accord, not on orders from the F.B.I. He also said that as he and other members of the group stormed through a barricade outside the building, he texted his handler in the bureau, saying that the breach was “not organized.”
“PBs did not do it, nor inspire,” Ehren wrote. “The crowd did as a herd mentality.”
But on cross-examination, Ehren admitted that he was far back in the crowd that had pushed its way through the barricade, suggesting that he may not have known precisely what happened. He also acknowledged that he had no access to the Proud Boys’ leadership, which presumably would have come up with any plan that existed for Jan. 6.
Moreover, Ehren’s testimony allowed prosecutors to introduce evidence about his compatriots in the Kansas City Proud Boys, several of whom are facing charges in a separate conspiracy case. Prosecutors played the jury videos of Ehren standing by as his Kansas City colleagues acted violently, throwing barricades aside and, in one case, moving forward brandishing an ax handle.
Source: nytimes.com
