Hours before committee officials expected lawmakers to gavel in the prime-time proceedings focusing on the actions of the Proud Boys and a documentary filmmaker who accompanied them that day, attorneys for Tarrio and some of his four deputies accused the Justice Department of playing politics with the case, a contention U.S. prosecutors and a judge appointed by President Donald Trump rejected during a hearing at a federal courthouse blocks away in Washington.
“Mixing politics and criminal justice is dangerous, and we have to run from it like fire,” said David Smith, an attorney for Proud Boys defendant Ethan Nordean of Seattle. “But when you look at the timing of the government’s indictment … when the charges could have been brought, and what is coming from the Capitol this week, there is no doubt what is happening, and it’s un-American, Judge,” Smith said.
Tarrio attorney Nayib Hassan agreed, writing in a court filing Wednesday that the new 10-count indictment against the group alleged almost no new facts, and “suspiciously seems orchestrated at the highest levels of government” to coincide with House hearings.
U.S. District Judge Timothy J. Kelly of Washington, a 2017 Trump appointee, rejected such claims as unjustified.
“To make the sweeping conclusion that there is no other explanation for the timing of this is unwarranted,” Kelly said. Prosecutors predicted in March that they could bring additional charges by the end of last month, and the defense attorneys probably would have raised similar complaints if they had met that deadline, the judge said.
“I fully agree that politics and law enforcement are — you don’t want the peanut butter of one to be in the chocolate of the other,” Kelly said. “There’s no question it’s important to the rule of law. It’s important to our country. … But the government has said it anticipated something happening in May, and the timing is such that it slipped briefly. To me, I can’t connect the dots you want to, Mr. Smith.”
Assistant U.S. Attorney Jason B.A. McCullough added: “The government strenuously objects to the premise there is any coordination going on between this office and the select committee in the timing of charges or the decision to bring the superseding indictment in this case, full stop.”
The escalating defense criticism of prosecutors came as attorneys urged the judge to move the scheduled Aug. 8 trial of the key Proud Boys figures out of the nation’s capital and to allow them to speak publicly out of court to counter what they called a flood of unfair prejudicial pretrial publicity.
Tarrio, 38, was not in the District the day of the riot, but prosecutors allege that he guided activities from Baltimore as Proud Boys members engaged in the earliest and most aggressive attacks to confront and overwhelm police at several critical points on restricted Capitol grounds.
Prosecutors accused Tarrio and his co-defendants in a 32-page page charging document of “opposing the lawful transfer of presidential power by force” by mustering and coordinating the movements of as many as 300 people around the Capitol that day, including several who the government says spurred and led a mob that stormed the building and forced the evacuation of lawmakers meeting to certify Joe Biden’s presidential victory. Scores of police officers were injured and five people died during or in the immediate aftermath of the riot, which was fueled by supporters of Trump’s false claims that the election was stolen.
Attorneys for Miami resident Tarrio; Joe Biggs of Ormond Beach, Fla.; and Dominic Pezzola of Rochester, N.Y.; pleaded not guilty to the new charges in court Thursday. Co-defendants Nordean and Zachary Rehl, of Philadelphia, were not present for the hearing and will enter pleas later, after pleading not guilty to charges initially filed against them in the case.
Several federal judges hearing cases in Washington of more than 820 defendants in the Jan. 6 riot have rejected motions to move trials, saying prospective jurors influenced by publicity can be vetted and weeded out in jury selection, but more requests are pending. Juries have been selected in five trials held to date with little trouble, U.S. prosecutors note.
Still, at least two judges have raised concerns about holding trials while House hearings are underway, with a third judge, Chief U.S. District Judge Beryl A. Howell, likely to next face the question for a trial set for June 27.
Against this backdrop, attorneys for the Proud Boys defendants describe their clients as being “in a class by themselves when it comes to prejudicial pretrial publicity,” as Rehl attorney Carmen Hernandez put it Thursday.
Hernandez argued that the combination of televised hearings and fresh charges meant that the “only solution” to preserve a defendant’s right to due process and a fair trial is to move the case out of Washington. That is, unless the trial is postponed and the defendants are released from jail, where they have been held since early 2021, attorneys for all five agreed.
Hernandez called the addition of a count of opposing the U.S. government by force when defendants already face another felony punishable by up to 20 years in prison — corruptly obstructing a congressional proceeding — exceedingly heavy-handed, saying Rehl committed no violence and at worst is alleged to have associated with the Proud Boys, as is his right under the First Amendment.
Kelly said he would consider a motion to postpone or move the trial. McCullough, the prosecutor, raised a potential further complication, disclosing that the House Jan. 6 panel has told the Justice Department that it expects to publicly release transcripts of interviews it has conducted with about 1,000 witnesses at the same time it publishes a report of its findings in early September, potentially while the Tarrio trial is ongoing.
McCullough said the department has asked to review the transcripts as part of its criminal investigation into the Capitol riot, but that “we have not been able to negotiate an agreement” with the House to share those transcripts with defendants as required if material from them were to be used as evidence in criminal cases.
The Proud Boys became known for brandishing batons at rallies and gatherings in 2020 in which members were eager to engage in street fights with their perceived enemies in the leftist antifa movement. During a presidential election debate in September 2020, Trump famously refused to denounce the Proud Boys, urging them to “stand back and stand by.” The group took those words as a rallying cry, organizing attendance at two post-election pro-Trump rallies in Washington and converging on the city for Jan. 6.