‘It’s Fairy Dust’: The Proud Boys Case Goes to Jury

A marathon January 6 trial besieged by scandal, controversy, and acrimony is now in the hands of a Washington, D.C. jury. After nearly four months of back and forth, the government and defense attorneys made their final pitch during closing arguments this week in the multi-count case against five members of the Proud Boys.

The drama surrounding the trial, both inside and outside the courtroom, is worthy of a Netflix series: shocking revelations of numerous FBI informants, deleted government evidence, outbursts from the bench, colorful defense attorneys, last-minute accusations of an assault on police, a mysterious “attack plan” sourced to a former intelligence operative, and concerns over a jury stalker, to name a few.

At the center of the drama are innocent men held behind bars awaiting trial as the January 6 Select committee conducted televised hearings portraying the Proud Boys as one of the masterminds behind a “domestic terror attack” the Biden regime compares to 9/11.

Unfortunately, the public heard none of the proceedings firsthand as the D.C. courthouse refuses to allow call-in access for jury trials. (Props to Roger Parloff at Lawfare for his blow-by-blow coverage on Twitter.)

The Proud Boys trial is the most consequential January 6 trial to date for both the Justice Department and Donald Trump. The government devoted an untold amount of resources and manpower to the case. The former president loomed large as prosecutors frequently cited his September 2020 debate remark for Proud Boys to “stand back and stand by” as a call to action. (More on Trump’s legal jeopardy related to the outcome of the trial in Friday’s column.)

Ethan Nordean, Zachary Rehl, Joseph Biggs, and Dominic Pezzola have been incarcerated under pretrial detention orders since early 2021 on various counts, including conspiracy and obstruction of an official proceeding. By the time jury selection began in December, the defendants had been in jail for almost two years awaiting trial.  Rehl, Pezzola, and Biggs are military veterans with no criminal history. (Biggs is a Purple Heart recipient.) Enrique Tarrio, the group’s leader, was arrested on similar charges in March 2022.

In June 2022, U.S. Attorney for the District of Columbia Matthew Graves indicted all five with seditious conspiracy, a rarely used post-Civil War statute, accusing the men of “oppos[ing][ by force the Government of the United States and by force to prevent, hinder, and delay the execution of any law of the United States.” Evidence was gleaned from more than 500,000 messages, which included FBI informants and unindicted co-conspirators, posted on Parler, Telegram, and group texts; virtual meetings and interviews; and video clips of the defendants’ movements before and at the Capitol on January 6.

“These defendants and their co-conspirators were motivated by a shared refusal to accept the results of the 2020 Presidential Election,” Graves’ office wrote in a brief last week laying out the conspiracy’s timeline. “In the weeks following that election, the defendants—in their roles as leaders and members of the Proud Boys—publicly and privately expressed their rejection of the results and their beliefs about the necessary response.”

Two cooperating witnesses and multiple FBI agents and police officers took the stand over the course of several weeks to detail the defendants’ alleged plot to strike “the heart of our democracy,” assistant U.S. Attorney Conor Mulroe said on Monday. “Their success was only temporary. The Constitution survived.”

The conspiracy, Mulroe explained, can be “unspoken, implicit, a mutual understanding, or a wink and a nod”—a laughably broad definition for an offense akin to treason.

Even with that low bar, prosecutors struggled to put the pieces together, instead arguing that inflammatory political rhetoric expressed on private platforms represented legitimate threats of violence. No one brought a weapon to the Capitol on January 6; how can individuals overthrow the government without artillery?

Further, the defendants were seen at different locations outside and inside the building that afternoon. Enrique Tarrio, who had been arrested upon his arrival in D.C. on January 4 for his involvement in a clash with BLM rioters the month before, was in a Baltimore hotel room on January 6, following orders to leave the city after his release.

“It’s fairy dust,” Steven Metcalf, Pezzola’s attorney, told the jury Tuesday morning. Pezzola is charged with using a riot shield to punch out a window pane that day. Metcalf asked how a “transfer of brain power” between men who didn’t really know each other resulted in a near-coup on January 6.

The government’s case, Nordean’s defense attorney Nicholas Smith told the jury, was held together by “paper clips and rubber bands.” He warned that any convictions on the conspiracy counts would set a grave precedent. “Is every riot a conspiracy? This is very dangerous.”

Carmen Hernandez, who recently joked in court that she was not an FBI informant after the government dropped yet another late disclosure related to an additional confidential human source, blasted prosecutors for waiting until the final days of the trial to accuse her client, Zachary Rehl, of attacking police with pepper spray. Prosecutors showed a grainy, inconclusive clip to Rehl when he testified on his own behalf last week, purporting to show Rehl aiming a pepper spray device toward a line of officers. (Pezzola also took the stand on his own behalf.)

“Really? Really?” Hernandez said of the last-minute dirty trick. “There is no witness, no officer [testimony], no other video” that shows Rehl using spray. (Also, as of now, he is not charged with assault on an officer.)

But, of course, all government shenanigans are condoned in the courtroom of Judge Timothy J. Kelly. The Trump appointee and former Justice Department lawyer has acted as an extra prosecutor, giving the government near carte blanche discretion in this case. Nearly every ruling leading up to the trial favored the prosecution.

He repeatedly denied the defendants’ release from jail at the Justice Department’s request. As evidence mounted that Trump supporters cannot get a fair trial in the most Democratic city in the country, Kelly refused to move the trial to another jurisdiction.

When the Justice Department belatedly disclosed the existence of multiple FBI informants—the government stipulated that the bureau had at least eight—in the Proud Boys, Kelly ordered the defense to “pre-clear” any questions about the role of individual informants with prosecutors. He also refused to compel the testimony of a key FBI informant who worked as Tarrio’s driver.

Kelly also ran interference for FBI agents. A member of the defense team uncovered explosive messages exchanged between FBI case agents that discussed doctored reports, destroyed evidence, and violations of attorney-client privilege. But Kelly abruptly ended defense questioning of the FBI agent, dismissed the jury, and gave prosecutors time to make up an excuse for the damning communications.

Which, of course, they did. And despite the government’s unsubstantiated claims as to the nature of the messages, Kelly bought it hook, line, and sinker. The jury never saw the incriminating messages.

During the trial, Kelly expressed open hostility to defense attorneys, frequently overruling their objections while sustaining those made by prosecutors. Kelly seated a politically biased jury that prompted Parloff, no right-winger, to express skepticism about the panel’s impartiality.

Now, the fate of five men who supported Trump and protested Joe Biden’s election on January 6 lies in the hands of those same jurors. Defense attorneys implored the jury to set aside their political differences and view the evidence as objectively as possible.

“I hope the ability to tell a pretty story doesn’t decide this case,” Hernandez said in her closing remarks.

Hernandez, and everyone else, will have an answer soon.

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