The Jan. 6 committee investigating the attack on the Capitol may have issued its massive final report, but the wheels of the US justice system are grinding and one of the most high-profile trials to emerge from the uprising is about to begin in earnest.
Jury selection began last week with the sedition conspiracy trial of former Proud Boys national chairman Enrique Tarrio and four others involved in the far-right, often violent militia group.
Tarrio and his co-defendants in the Washington, D.C. federal court trial — Ethan Nordean, Zachary Rehl, Dominic Pezzola and Proud Boy organizer Joe Biggs — are charged with sedition conspiracy and other charges related to the attack that delayed the congressional certification of Joe Biden’s election victory, injured dozens of police officers and is linked to several deaths. They have all pleaded guilty to the charges.
A fifth man charged in this case, Charles Donohoe, pleaded guilty in April to conspire to attack the Capitol. Under Donohoe’s plea deal, he agreed to cooperate against his co-defendants. Approximately 900 people have now been arrested in the Capitol attack, with prosecutors securing convictions against hundreds.
The start of the trial comes amid a wider reckoning with those responsible for the January 6 attack.
Hours after jury selection began Monday in the Proud Boys trial, the House committee investigating the deadly riot issued some of its results – and made one criminal referral against Trump to the US Department of Justice and recommended prosecution. The trial also comes weeks after two leaders of the Oath Keepers – another far-right group – were convicted seditious conspiracy for their involvement in the rebellion.
Federal prosecutors allege that Nordean, Biggs, Rehl and Pezzola were among the 100 proud boys who gathered at the side of the Washington Monument at 10 a.m. on January 6. They met around the time Trump was to thousands of supporters in a park called the Ellipse.
These soon-to-be rioters in that group then made their way to the Capitol. Around 1 p.m., one of them broke through the police, spurring the violence that would consume Capitol Hill, according to court documents.
Nordean, Rehl, Biggs and Pezzola allegedly led the mob and were among the first to push past the police. Biggs allegedly recorded a video of himself observing the mob and saying, “We’ve taken the Capitol,” according to court documents.
Tarrio was not in Washington DC during the riot, as he had been arrested two days earlier for vandalizing a Black Lives Matter sign at a historic black church during a demonstration in December 2020. Prosecutors allege that Tarrio was one of the ringleaders of this conspiracy to to defeat election certification.
Several days before the riot, Tarrio posted about “revolution” on social media, prosecutors said in court papers. In an encrypted message group that prosecutors allege was created by Tarrio, one member allegedly said, “Time to pile these bodies in front of Capitol Hill.” according to the Associated Press.
Despite being arrested several days before, Tarrio foreshadowed the insurgents’ attack, writing “don’t do it [expletive] leave” on social media and later posted “we did this…” prosecutors said.
While there appears to be extensive evidence against these men, much of which has been in public records, prosecutors must show more than their personal or social media presence that day to prove a seditious conspiracy.
“They’re going to have to show an agreement between two or more people, they’re going to have to show a common scheme or a common plan,” said the Los Angeles criminal defense and appellate attorney. Matthew Barhomafounder of Barhoma Law.
“Turning up on January 6 at the same time doesn’t mean there really was a conspiracy. They’re going to have to go a little bit further than that to show there’s a common agreement – basically a smoking gun in the sense that they intended to overthrow the government,” he added. “They will have to show that they wanted to act in a common plan to further that plan to overthrow the government or delay or obstruct the government of the United States.”
That said, “seditious conspiracy is actually in some ways much easier to prove than ordinary criminal conspiracy,” explained longtime criminal defense attorney Ron Kuby with a focus on civil rights.
“Seditious conspiracy is the only conspiracy that does not require proof of an overt act on the part of the participants,” Kuby said. “Generally speaking, a conspiracy is an agreement between two or more people to do something illegal, and in all other cases of conspiracy, at least one of the participants must take a substantial step toward the illegal purpose.”
“Here, it’s really a side note, footnote, endnote and asterisk. They don’t have to prove an overt act, what they have to prove is that there was an agreement to oppose the legal authority of the United States by force.
“There is a tsunami of evidence, both in terms of what was said among the participants, which the FBI has obtained and decrypted and what they did, all of which is well documented on video.”
Although evidence appears to abound, one possible defense strategy would be to portray the alleged plots as hoaxes. “These guys were angry knuckleheads but you know, they’re not planning to overthrow the government,” Kuby said of this possible approach.
It is unclear whether these Proud Boys members would agree, although this could help their case.
“The natural impulse of any defense attorney is to portray their clients in a way that will most likely result in an acquittal, but that’s not necessarily how most defendants want to be portrayed,” Kuby said. “The Proud Boys might not want to be portrayed as loud knuckleheads who just egged each other on to say dumber and dumber things because they’re not that bright.”
Tarrio’s lawyers have argued that he did not tell or encourage anyone to storm the Capitol or act violently, while Nordean’s lawyer argued that Justice Department prosecutors singled him out because of his political beliefs, the AP reported.
In an email to the Guardian, Tarrio’s lawyer, Nayib Hassan, said: “Mr. Tarrio is looking forward to the start of the trial. We look forward to presenting the evidence and exonerating Tarrio of the government’s charges.”
Rehl’s attorney reportedly wanted the judge to dismiss the charges on First Amendment grounds, arguing that the charges were rooted in free speech issues. Asked for comment, Bigg’s attorney, Norm Pattis, said in an email: “We look forward to presenting evidence in this case. We stand by his plea of not guilty.”
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