The Capitol riot trial for Proud Boys leaders promised to be a historic showcase for some of the most compelling evidence of an alleged plot by far-right extremists to halt the transfer of presidential power after the 2020 election.
One month into the trial, there have been plenty of fireworks, but mostly when the jury wasn’t in the courtroom.
Lawyers representing the five Proud Boys charged with seditious conspiracy have repeatedly sparred with U.S. District Judge Timothy Kelly during breaks in testimony. At least 10 times, those lawyers have argued in vain for him to declare a mistrial.
The judge regularly admonishes lawyers for interrupting him and has threatened to hold them in contempt if it continues. Two defense lawyers at one point floated the idea of withdrawing from the case if Kelly did not rule in their favor on evidentiary matters.
The barrage of bickering has bogged down the proceedings in the federal courthouse, where the Capitol can be seen in the distance from some windows. One recent day in court, defense lawyer Norm Pattis compared the trial to visiting Gilligan’s Island, the title and setting of the 1960s-era sitcom about a shipwrecked boat’s crew and passengers.
“It was supposed to be a three-hour tour, and people were stranded together for an infinite period while they worked out their interpersonal difficulties,” Pattis quipped.
The tension in the courtroom reflects the high stakes for the Justice Department and the defendants. It’s one of the most serious cases to emerge from the Capitol riot on Jan. 6, 2021, and former Proud Boys national chairman Enrique Tarrio is perhaps the highest profile person to be charged so far in the assault.
The Proud Boys face up to 20 years in prison if convicted of seditious conspiracy. Acquittals on the rarely used charge – which strikes at the heart of what prosecutors say happened that day – would be a setback in the government’s Jan. 6 investigation, which continues to grow two years later.
Tarrio and four lieutenants are accused of participating in a weekslong plot to keep Democrat Joe Biden out of the White House after he defeated then-President Donald Trump in the 2020 election. Prosecutors say it culminated with Proud Boys mounting a coordinated assault on the Capitol alongside hundreds of other Trump supporters.
Defense lawyers say there’s no evidence that the Proud Boys plotted to attack the Capitol and stop Congress from certifying the Electoral College vote on Jan. 6. The lawyers claim prosecutors are mischaracterizing bellicose online banter as a violent plot. They tried unsuccessfully to move the trial out of Washington, arguing that there was no way their clients could get a fair trial in front of a District of Columbia jury.
The Proud Boys trial is on a pace to last several weeks longer than last year’s landmark trial for Oath Keepers group leaders and members, who were charged in a separate Jan. 6 case.
In November, a jury convicted Oath Keepers founder Stewart Rhodes and another leader of seditious conspiracy after three days of jury selection, 26 days of testimony and two days of closing arguments. A separate trial involving members of the Oath Keepers – who face a slew of charges, but not seditious conspiracy – also got underway this month.
Jury selection for the Proud Boys case lasted 12 days. After the trial’s opening statements on Jan. 12, jurors have heard 16 days of testimony through Friday. Prosecutors are expected to rest their case in late February or early March before the defense team begins presenting testimony.
A dozen of the first 14 prosecution witnesses in the Proud Boys trial have been FBI agents and other law enforcement officials. Jurors also have heard testimony from a former Proud Boys member who cut a plea deal with prosecutors and a British documentary filmmaker who was embedded with the Proud Boys on Jan. 6.
Jurors are often kept waiting in the wings while defense lawyers challenge the admissibility of evidence. In one such exchange, Pattis urged Kelly to reconsider a ruling allowing prosecutors to introduce posts from the social media platform Parler.
“We’re offering you a lifeline here because we think you erred,” Pattis told the judge.
“Well, I’m offering you the lifeline of obeying my order,” Kelly responded.
Kelly has frequently scolded defense lawyers for interrupting and talking over him, warning that he could find them in contempt. At one point, lawyer Nicholas Smith interrupted the judge while the judge was chastising him for an earlier interruption.
One of Tarrio’s lawyers asked for a mistrial after a witness said that Tarrio had burned a Black Lives Matter banner at a protest in Washington during a December 2020 demonstration by Trump supporters.
Tarrio was arrested two days before the Jan. 6 riot, charged with vandalizing the banner and ordered to leave the city. Kelly ruled that prosecutors could discuss the vandalism, but not specific details about the banner. Prosecutors allege Tarrio remained in command of the Proud Boys on the ground on Jan. 6 even though he wasn’t there.
Carmen Hernandez, a lawyer for Proud Boys chapter leader Zachary Rehl, has repeatedly moved for mistrials, including when she accused a prosecutor of using inflammatory and misleading allegations in his opening statement. Hernandez asked for a mistrial after jurors saw violent videos of Proud Boys street fighting at rallies before Jan. 6.
“It wouldn’t be a day in this trial without a mistrial motion,” said Kelly, who denied her request.
At least one juror may have sent a signal about the sluggish pace of the trial.
J. Daniel Hull, one of Biggs’ lawyers, told the judge on Jan. 19 that he saw a juror nodding off that morning. In response, the judge told lawyers that “focusing their presentations might help that issue.”
The rancor started before the jury was even sworn in.
A day before the trial started, Hernandez said she felt compelled to withdraw from the case if the judge allowed prosecutors to show a particular video as evidence. Smith, who represents Proud Boys chapter leader Ethan Nordean, followed up with a similar comment about withdrawing if the judge didn’t rule in his favor on an evidentiary matter.
Pattis, a Connecticut-based lawyer who represents Proud Boys organizer Joe Biggs, was briefly sidelined from the case after a judge in his home state suspended his license to practice law for six months. The decision stemmed from Pattis’ handling of confidential documents during his representation of conspiracy theorist Alex Jones in a civil lawsuit. Kelly allowed Pattis to rejoin the trial after opening statements once an appeals court postponed his suspension.
The judge didn’t bring jurors into court on Feb. 6 so the lawyers could argue about the relevance of messages that Proud Boys posted on the Telegram platform. Pattis warned that the Telegram evidence alone could add two weeks to the trial “if we’re not careful.”
“I jokingly told my office I hope to be home by Easter today at the rate things are going,” Pattis added.
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