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 elections.
A month into the trial, there were a lot of fireworks, but especially when the jury was not in the courtroom.
Lawyers representing the five Proud Boys charged with seditious conspiracy repeatedly battled with U.S. District Judge Timothy Kelly during testimony breaks. At least 10 times these lawyers pleaded unsuccessfully for him to declare a mistrial.
The judge regularly berates the lawyers for interrupting him and has threatened to despise them if it continues. Two defense attorneys at one point floated the idea of withdrawing from the case if Kelly did not rule in their favor on evidentiary issues.
The deluge of wrangling has mired proceedings in the federal courthouse, where the Capitol can be seen in the distance from some windows. On a recent day in court, defense attorney Norm Pattis compared the trial to visiting ‘Gilligan’s Island’, the title and setting of the 1960s sitcom about the crew and passengers of a wrecked ship. .
“It was supposed to be a three-hour visit, and people were stuck together for an endless amount of time as they worked through their interpersonal struggles,” Pattis joked.
The tension in the courtroom reflects the high stakes for the Justice Department and the defendants. This is one of the most serious cases to emerge from the Riot at the Capitol on January 6, 2021and former Proud Boys national president Enrique Tarrio is perhaps the most high-profile person to be charged in the assault so far.
The proud boys face up to 20 years in prison if convicted of seditious conspiracy. Acquittals for 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 week-long plot to oust Democrat Joe Biden from the White House after defeating then-President Donald Trump in the election 2020. Prosecutors say it culminated with the Proud Boys staging a coordinated assault on the Capitol alongside hundreds of other Trump supporters.
Defense attorneys say there is no evidence the Proud Boys conspired to attack the Capitol and prevent Congress from certifying the Electoral College vote on Jan. 6. Lawyers say prosecutors are wrongly labeling belligerent jokes online as a violent conspiracy. They unsuccessfully attempted to move the trial out of Washington, arguing that there was no way for their clients to get a fair trial before a District of Columbia jury.
The Proud Boys trial is set to last several weeks longer than last year’s landmark trial for leaders and members of the Oath Keepers group, who were charged in a separate case on January 6.
In November, a jury convicted Oath Keepers founder Stewart Rhodes and another seditious conspiracy count 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 host of charges, but not a seditious conspiracy – also kicked off this month.
Jury selection for the Proud Boys case lasted 12 days. After opening statements for the trial on January 12, jurors heard 16 days of testimony through Friday. Prosecutors are expected to close 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 were FBI agents and other law enforcement officials. Jurors also heard testimony from a former Proud Boys member who reached a plea deal with prosecutors and a British documentary filmmaker who was signed into the Proud Boys on January 6.
Jurors often have to wait in the wings while defense attorneys challenge the admissibility of evidence. In one such exchange, Pattis urged Kelly to reconsider a decision allowing prosecutors to introduce posts from the social media platform Parler.
“We’re giving you a lifeline here because we think you made a mistake,” Pattis told the judge.
“Well, I offer you the lifeline of obeying my order,” Kelly replied.
Kelly frequently chastised defense attorneys for interrupting and talking over him, warning he might find them dismissive. At one point, attorney Nicholas Smith interrupted the judge as the judge reprimanded him for an earlier interruption.
One of Tarrio’s lawyers asked for a mistrial after a witness said Tarrio burned a Black Lives Matter banner during a protest in Washington during a December 2020 protest by Trump supporters .
Tarrio was arrested two days before the Jan. 6 riot, charged with vandalizing the banner, and ordered to leave town. Kelly ruled prosecutors could discuss the vandalism, but not specific details about the banner. Prosecutors allege Tarrio remained in charge of the Proud Boys on the field on January 6 even though he was not there.
Carmen Hernandez, attorney for Proud Boys Section Chief Zachary Rehl, has repeatedly called for a mistrial, including when she accused a prosecutor of using inflammatory and misleading allegations in her opening statement. Hernandez asked for a mistrial after jurors saw violent videos of Proud Boys street fights at rallies before Jan. 6.
“There wouldn’t be a day in this lawsuit without a motion to quash,” said Kelly, who denied her request.
At least one juror may have sent a signal about the slow trial.
J. Daniel Hull, one of Biggs’ attorneys, told the judge Jan. 19 that he saw a juror fall asleep that morning. In response, the judge told the lawyers that “focusing their presentations might help this problem.”
The rancor began even before the jury was sworn in.
A day before the trial began, Hernandez said she felt compelled to step aside from the case if the judge allowed prosecutors to show a particular video as evidence. Smith, who represents Proud Boys Section Chief Ethan Nordean, followed up with a similar comment about withdrawing if the judge doesn’t rule in his favor on a matter of evidence.
Pattis, a Connecticut attorney 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 join the trial after opening statements once an appeals court overturned his suspension.
The judge did not bring jurors to court on February 6 so that lawyers could discuss the relevance of the messages 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 said to my office that I hope to be home by Easter today at the rate things are going,” Pattis added.