In Adding Matthew Greene to a Conspiracy with Dominic Pezzola, DOJ Formally Alleges the Proud Boys Committed a Crime of Terrorism

At a detention hearing for Charles Donohoe yesterday, Magistrate Judge Michael Harvey asked a long series of questions, including what a “normie” is, what Telegram is (it is stunning that a DC Magistrate doesn’t know that, but that’s a testament they won’t accept US legal process), and whether “Milkshake,” who had been described saying a lot of really damning things in an organizational channel, was part of the conspiracy. AUSA Jason McCullough said that DOJ is still assessing Milkshake’s — whose real name is Daniel Lyons Scott — criminal liability, but since he was filmed fighting with some cops, I’d be arranging legal representation if I were him.

Along the way, however, the questions led McCullough to provide several new details on the Proud Boy conspiracy. One question he didn’t answer is whether the government knows that Donohoe succeeding in “nuking” some texts describing organizational efforts, as he described wanting to do after Enrique Tarrio got arrested.

McCullough also revealed something that was not yet public: the government had rounded up another Proud Boy, Matthew Greene, and indicted him in what I call the Proud Boy “Front Door” conspiracy along with Dominic Pezzola and William Pepe. In doing so, they did something more important for their larger case. First, they changed the purpose of the conspiracy from what it was originally charged to match all the other militia conspiracies (from busting through the first door to obstructing the vote count). Here’s what the militia conspiracies currently look like as a result:

It was probably fairly urgent for DOJ to do this (and Greene’s inclusion may have been just a convenient rationale). Here’s how the indictment changed from the original Indictment to the Superseding one (S1):

In general, the government is charging Pepe and now Greene with more than they originally charged Pepe with based on a theory that they abetted Pezzola’s alleged crimes. But the critical change is highlighted. Originally (marked in pink), just Pezzola was charged for breaking the window through which the initial breach of the Capitol happened. But in this indictment (marked in yellow), DOJ charges Pepe and Greene for abetting Pezzola in breaking that window.

The reason they did this is because 18 USC 1361 is the crime for which DOJ is arguing that all key Proud Boy defendants can be detained pre-trial, not just Pezzola, but also Joe Biggs, Ethan Nordean, Zach Rehl, and Charles Donohoe. In detention hearings, the government has argued that it counts not just as a crime of violence that allows the government to argue that a defendant is eligible for detention, but also that, because it was done to coerce the conduct of government, it triggers a terrorism designation for detention purposes.

This is how the argument looks in detention memos:

As it did before, the United States moves for detention pursuant to 18 U.S.C. § 3142(e)(3)(C), which provides a rebuttable presumption in favor of detention for an enumerated list of crimes, including Destruction of Property in violation of 18 U.S.C. § 1361. The United States also seeks detention pursuant to 18 U.S.C. § 3142(f)(1)(A), because Destruction of Property, in violation of 18 U.S.C. § 1361, is a crime of violence. Moreover, when Destruction of Property is “calculated to influence or affect the conduct of government by intimidation or coercion,” it also qualifies as a federal crime of terrorism. See 18 U.S.C. § 2332b(g)(5)(B).

This was an issue in the Monday detention hearing before Judge Tim Kelly for Biggs and Nordean. After the hearing, he required the government to submit a picture of Pezzola breaking that window.

And it will likely become an issue when Joe Biggs, at least, appeals his detention, as he noticed he would do yesterday (it would be a still bigger issue in Nordean or Donohoe’s case).

In fact, the government has been making this argument for some time.

But it wasn’t until this supserseding indictment that the government formally aligned Pezzola’s actions — including spectacularly breaking that first window with a riot shield — with the rest of the Proud Boy indictments, in fact making them (as the government has already argued) the same conspiracy, a conspiracy involving terrorism.

27 replies
  1. Pablo in the Gazebo says:

    I have been hiding right here behind my computer screen all along, reading Macy’s every word, and trying to understand what the DOJ is up to with their chargings. Then I wade through the comments for insights and explanations in the discussions. Most of the time it becomes clear; sometimes I get lost.
    But this one I got all by myself. The last word of the post just warms my coffee.

    • bmaz says:

      Be careful of what you wish for, making domestic crimes “terrorism” will not end well. This path is the way rights and liberties go to die.

      • Norskeflamthrower says:

        Huh, I don’t get it: since we have already accepted the definition of terrorism in our law and this terrorism is “domestic” all we are doing is identifying “domestic terrorism”. I think I understand your concern but we are just recognizing sedition in these actions.

        • bmaz says:

          Then recognize sedition and quit playing into the hands of cops and prosecutors by giving them even more insanely ridiculous power and authority under the bullshit guise of “terrorism”. It is almost comical how many people (not necessarily you) want to, in one breath “defund the police” and in the next want to give the insane power of classifying state level common law crime as federal “terrorism”. There are plenty of laws to address all this. And, no, there is no domestic terrorism law, and there is absolutely no need for one.

          • Plain Dave says:

            Bullshit guise indeed. “Terrorism” is killing random innocents to achieve political goals. 911, the Boston Marathon, Oklahoma City, the shoe bomber, the list seems neverending. Trying to overthrow the government by attacking the Congress is in a totally different category. Terrorism is near the pinnacle of evil (excluding torture), this stuff is merely horrible.

            • pasha says:

              well-stated! the facts fit the crimes of insurrection and seditious conspiracy. “terrorism” is too amorphous, less clearly defined, too subjective. for example, the florida legislature is, in effect, defining protesters as terrorists in order to make protesting a felony — a dangerous slippery slope

      • Rugger9 says:

        That sentiment is especially true given how the current GOP and the RWNM will twist any law to fit their power grabbing needs. Notice how they’ve been working to nullify the power of D governors, for example in NC and WI because they lost, as well as the current pushes for voter restrictions. The voting machine fiasco is an outgrowth of HAVA signed by Shrub.

        Wisconsin’s union-busting Act 10 (leaving police and firefighters alone, btw) came about because Walker shoveled out a ton of money in tax cuts when he came into office and then discovered a huge deficit resulted. It’s an old GOP play still in practice today with all of the concerns about Biden’s plans being too costly.

        When laws are clearly broken, such as the January 6th insurrection, the perps have to be prosecuted. However, the GOP is using that unrest (which they falsely blame on ANTIFA and BLM) to push for anti-protest laws that even allow someone to mow down protesters with their vehicle if they “fear for their life”. The murderer of Heather Heyer in Charlottesville would walk but I doubt someone fleeing a lynching crew (like Mr. Arbery, for example) would have any protection from these laws.

        I’m not sure how to craft these changes into one-size-fits-all laws (required by the equal protection clause in the 14th amendment) that will be harder to twist into tools for GOP oppression. The GOP understands the lesson from Orwell’s “1984”: the purpose of power is power, nothing else.

      • emptywheel says:

        No one is MAKING domestic crimes terrorism. The government is simply applying the law as written. Importantly, they’re doing it without the domestic terrorism law that everyone in Congress seems to want to hand them.
        If you’re not argument about other BRA aspects — including the crime of violence one that is arguably more controversial in this case, or the way they’re using abetting — then the terrorism designation should be no different.

        • bmaz says:

          Perhaps you have not been paying attention to what all the fine young Dem cannibals have been pondering and salivating over. Heck, at this point, it may even be at that magic “bi-partisan” unicorn status. And extremely few people make the thread the needle distinction you attempt. And that is a problem.

          Long live the “Something must be done, and this is something!” caucus.

          When that kind of group came for the 4th Amendment, it was the drug war, and hello exceptions gutting much of the 4th. When the same thought process came for the 5th Amendment, Miranda got eviscerated in the name of “terrorism”. Those roads are on the verge of being traveled yet again, and all the outrage over 1/6 is fueling it in a ludicrous fashion. You may thread that, most cannot.

          • emptywheel says:

            GREAT!!! You’ve just made the argument that what DOJ is doing here is precisely what you want. If this fails, it will make a domestic terror statute far more likely.

            But if you MISREPRESENT what is going on here — by claiming the application of the law as it exists amounts to the introduction of some new law — you will make the outcome you claim not to want more likely.

          • Barb says:

            Reminds me of when Congress rammed through AETA (Animal Enterprise Terrorism Act) in 2006 under Bush, when there were/are already laws on the books to charge people with vandalism, theft, etc… “While the FBI has declared that “ecoterrorism” and the animal rights movement are the country’s “No. 1” domestic terrorism threat, white-supremacist and other extremist groups have stockpiled illegal explosives and weapons, bombed government buildings, and assassinated police officers, judges, and abortion doctors. (No one has been killed as the result of an act of “ecoterrorism.”)”

          • timbo says:

            Indeed. It seems that this sort of looseness with words is leading to more “Reaganistics” when it comes to diluting the Bill of Rights and Equal Protections clauses. Thanks for continuing to try to rein in the crazy notions of some politicians that security is more important than free speech, etc, etc, Bmaz.

  2. Badger Robert says:

    How do the prosecutors get these people to testify about the people who had greater power and told the trespassers they would be safe for awhile? And apparently no one who sanctified the attempted coup by concealing that VP Pence had already stated he had not discretion in performing the certification of votes will be prosecuted.
    Apparently the people with less culpability will protect the people with greater culpability.

    • bmaz says:

      The once and forever prosecutorial tactic of charging the bejeezus out of co-conspirators, even if really only somewhat unwitting co-participants, and scaring their lives. This tactic is tried, true and proven, even if sometimes unseemly. It is not here. It works. This is barely 100 days into gestation, give it time.

      • subtropolis says:

        Including 18 U.S.C. § 2332b(g)(5)(B) unseemly, apparently.

        I’d rather this take some time — and I always expected that it would — than see the real culprits skate. This has been proceeding at a decent pace, all things considered.

        It’ll be a long haul, anyway, even after indictments of the main culprits, should we be so fortunate. A wearying, propaganda assault slog, I expect.

        • pablo says:

          On Jan. 6, I mentioned to my wife that this was treasonous behavior and they will pay. Her skeptical reply was “sure, pull the other one”.
          Yesterday I said “400, going on 500”.

    • Leoghann says:

      Congratulations. You have just successfully tempted me to read Mickey Kos for the first time in 15 years.

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