The government’s two-month-long presentation included more than 20 witnesses and used some legal theories that tested the boundaries of conspiracy law.
-
Send any friend a story
As a subscriber, you have 10 gift articles to give each month. Anyone can read what you share.
Give this article
Although video footage showed that a large group of Proud Boys was exceptionally violent on Jan. 6, 2021, the violence committed by the five men charged may be harder to prove.
After more than two months of testimony, prosecutors in the Proud Boys sedition trial called their final witness on Friday, ending a lengthy presentation based on hours of violent videos, reams of encrypted text messages and legal theories that have repeatedly tested the boundaries of conspiracy law.
While the government was waiting until Monday to formally rest its case, the conclusion of its jury presentation was a signal moment in the trial — one of only three so far in which allegations of sedition have been brought in connection with the Capitol attack on Jan. 6, 2021.
The proceeding, in Federal District Court in Washington, has already run much longer than expected, with a prosecutor complaining to the judge this week that the two sides had been “burning so much of the jury’s time” with constant arguments about the proper use of evidence and witnesses.
From well before the trial began, prosecutors faced a dilemma. Videos collected from the police, surveillance cameras and the rioters themselves clearly showed that a large group of Proud Boys led by some of the defendants was exceptionally violent on Jan. 6, taking the lead in pushing through barricades, assaulting officers, riling up the crowd and ultimately breaching the Capitol.
But the violence committed by the five men charged in the case — Enrique Tarrio, Ethan Nordean, Joseph Biggs, Zachary Rehl and Dominic Pezzola — was relatively limited. Mr. Tarrio, the chairman of the Proud Boys at the time, was not even in Washington on Jan. 6.
Moreover, as investigators set to work examining internal group chats used by the Proud Boys, there was little concrete evidence that the defendants had planned in advance to storm the Capitol. Interviews with several other members of the far-right organization found a similar lack of premeditation. Cooperating witnesses and informants in the group told the government that they were also unaware of any plans.
All of this effectively forced the prosecution to build an inferential case against Mr. Tarrio and the other four defendants, three of whom were also leaders of the group. In their opening statements in January, prosecutors presented their theory of what had happened on the ground that day: Mr. Tarrio and his lieutenants, they said, wielded other Proud Boys and so-called normies — or normal Trump supporters — in the mob as “tools” of their conspiracy, inspiring them to storm the Capitol and seek to violently stop the transfer of presidential power.
Throughout the trial, defense lawyers have argued that this approach has made a mockery of longstanding principles of conspiracy and criminal liability law. They have repeatedly — sometimes angrily — fought with Judge Timothy J. Kelly about the prosecution’s tactics but have lost most of those battles, at times causing eruptions in the courtroom.
After making their introductory remarks two months ago, prosecutors took a few steps back and sought to provide the jury with some background on the Proud Boys and to set some of the context for the Capitol attack.
They demonstrated through internal messages on the chat app Telegram how the Proud Boys — including the men on trial — were ecstatic when President Donald J. Trump called them out by name during a presidential debate in September 2020, when he told the group’s members to “stand back and stand by.”
The prosecutors also called a former Proud Boy, Matthew Greene, to the stand and had him explain to the jury that there was “a collective expectation” among the Proud Boys that violence would be used during political demonstrations.
“I believed from my experience that violence was celebrated,” Mr. Greene said.
At the same time, the prosecution began to paint a detailed picture of the Proud Boys’ collective emotional state in the postelection period, showing how the group became more frustrated with the legal and political systems and began edging closer to violence as Jan. 6 drew near.
Hundreds of Proud Boys took part in pro-Trump rallies in Washington in November and December 2020, both times clashing with leftist counterprotesters and ultimately turning on their traditional allies in the police, who they believed had sided with their adversaries.
How Times reporters cover politics. We rely on our journalists to be independent observers. So while Times staff members may vote, they are not allowed to endorse or campaign for candidates or political causes. This includes participating in marches or rallies in support of a movement or giving money to, or raising money for, any political candidate or election cause.
Learn more about our process.
The witness who helped describe these rising tensions was Jeremy Bertino, a former Proud Boy from North Carolina, who was gravely wounded in a street brawl after the rally in December. Mr. Bertino, after investigation by the government, pleaded guilty to seditious conspiracy and agreed to testify for the prosecution in the case.
In nearly a week on the stand, Mr. Bertino told the jury how a sense of anxiety spread throughout the Proud Boys after the Supreme Court declined to overturn Joseph R. Biden Jr.’s victory in Pennsylvania in December 2020. He went on to say that the group’s top leaders came to believe that “time was running out to save the country.” The Proud Boys, Mr. Bertino testified, would have to take the lead in galvanizing Trump supporters who were going to Washington on Jan. 6 into realizing an “all-out revolution.”
That day, Mr. Bertino, sitting at home recovering from his injuries, was watching live streams of the riot and offering advice to his compatriots on the ground. In a barrage of frantic messages, he told his fellow Proud Boys to “form a spear,” encouraging them to move en masse toward the Capitol, believing, as he put it, that a second American Revolution was afoot.
He recalled for the jury how at one point he texted Mr. Tarrio to express his pride and amazement once the building had been stormed.
“Brother, You know we made this happen,” he wrote. “I’m so proud of my country today.”
“I know,” Mr. Tarrio responded.
But Mr. Bertino’s testimony on cross-examination revealed some problems in the prosecution’s case.
Defense lawyers pointed out that in several early interviews with the government, he repeatedly told investigators that the Proud Boys never had an explicit plan to stop the election certification and that he never fully expected violence to erupt on Jan. 6.
Mr. Bertino sought to explain these earlier statements under follow-up questioning by the government, saying he was lying at the time and seeking “to protect myself” and “everyone else from getting in any trouble.” By openly acknowledging he had lied, he risked undermining his credibility with the jury.
Mr. Bertino also gave an unusually expansive definition of the criminal conspiracy that he claimed he and the others had engaged in.
While he acknowledged that he was never privy to the Proud Boys’ plans for Jan. 6, he also said that it was his “understanding” that the objective of the plan was to stop Mr. Biden from becoming president. Moreover, he explained, he arrived at this conclusion not through any specific dealings with his compatriots, but rather through an unspecified series of “cumulative conversations.”
Norm Pattis, a lawyer for Mr. Biggs, derided all of this at the time as “the most attenuated, inchoate crime imaginable.”
Mr. Bertino’s theory of the conspiracy was certainly unorthodox, but it was also similar to the one that prosecutors used to secure a seditious conspiracy conviction against Stewart Rhodes, the leader of another far-right group, the Oath Keepers militia. Even though the government’s witnesses in that case repeatedly said the Oath Keepers had no plan to storm the Capitol, prosecutors convinced the jury that Mr. Rhodes had reached an unspoken agreement with the other defendants in starting the attack.
Prosecutors started wrapping up their presentation on Thursday by showing the jury group chat texts the Proud Boys wrote after the Capitol attack. In a panic, some of the Proud Boys recommended destroying any photographs or messages from Jan. 6, with one member warning his compatriots that they were “being hunted by the FBI.”
Other members of the group, however, made clear that they had no remorse for having taken part in the Capitol attack.
“Everyone shoulda showed up armed,” Mr. Rehl wrote one day after the riot, “and took the country back the right way.”
The defense, which intends to start its case on Monday, expects to present a fairly long list of witnesses, including several of the defendants. One of the first witnesses is expected to be Travis Nugent, a Proud Boy from the Pacific Northwest who marched with the defendants on the Capitol but never faced charges in the case.
Source: nytimes.com
