The Additional Complexities of the Proud Boy Sedition Case

Some weeks ago, someone involved in the Proud Boy case emailed me a personal invitation to the Proud Boy leader trial later this year: “please accept my invitation to come report on the proceedings in person.  In my opinion, it will prove far more interesting than the OK trial.” It had been a long time since I had heard from this person — since I warned him, for a second time, I would not treat his emails to me as presumptively off the record, because by then the frequency of them and the conflicts between what he said about the First Amendment publicly and what he said to me on emails had become newsworthy in and of itself.

I have no intention of traveling to DC for the Proud Boy trial. Like the Oath Keeper one, there will be scores of journalists who are very familiar with the case who will do great live coverage. I would add little, if anything.

But this person’s promise that the trial will be more interesting than the Oath Keeper one is a sound prediction. To be clear: I think the evidence shows that the Proud Boys are far more complicit in the attack on democracy on January 6 than the Oath Keepers, who were mostly whack right wingers with delusions of grandeur. But I also recognize that the Proud Boy case has been far more difficult for DOJ to put together than the Oath Keeper one, in significant part because they have been more successful at cultivating authoritarian law enforcement that likes their mob culture.

Remember, several Proud Boys, including Tarrio, worked with Roger Stone to threaten Amy Berman Jackson and Bill Barr’s DOJ treated it as a mere legal technicality. The Proud Boys got sanction, as a mob, from the President’s own mouth, which had ripple effects throughout government on the way they were treated.

So I wanted to look at three indications of the difficulties the Proud Boy prosecution may face that the Oath Keeper prosecutors did not.

Delayed phone exploitation

First, in a hearing yesterday in the case against five men who were co-travellers with Joe Biggs the day of the attack, prosecutor Nadia Moore mentioned that she had just provided the “scoped” phones from (I think) Paul Rae and Eddie George — “scoped” is what they call it when the FBI pulls out the things that are responsive to a warrant. That’s a fairly shocking delay in exploiting their phones. Rae was arrested on March 24, 2021 and George was arrested on July 15, 2021. But it’s true that a May discovery index from the Proud Boy leader case only shows a scoped LG Tablet from George, with no scoped phone listed for either (though there is a phone video from Rae listed).

It may well be that — like Enrique Tarrio — they had really complex passwords on their phone. It took over a year to exploit the content of his phone, even though it was seized before January 6. There appear to be others, too, whose phones were not yet exploited in May.

Aside from a delay in the scoping of Stewart Rhodes’ phone due to the volume of encrypted texts on it and a privilege review holding up the exploitation of Kellye SoRelle’s phone, there were no known similar delays on the Oath Keeper side.

Complicit FBI and law enforcement

While the Oath Keepers, like the Proud Boys, intentionally recruit law enforcement, the Proud Boys have been better at co-opting cops. Around five of the charged Proud Boys were former or still cops when charged. Tarrio had been a formal informant during a prior criminal prosecution. And several other members of the Proud Boys, including Joe Biggs, provided information to the FBI about what they claimed were Antifa.

Biggs described his own relationship with the FBI this way:

By late 2018, Biggs also started to get “cautionary” phone calls from FBI agents located in Jacksonville and Daytona Beach inquiring about what Biggs meant by something politically or culturally provocative he had said on the air or on social media concerning a national issue, political parties, the Proud Boys, Antifa or other groups. Biggs regularly satisfied FBI personnel with his answers. He also stayed in touch with a number of FBI agents in and out of Florida. In late July 2020, an FBI Special Agent out of the Daytona Beach area telephoned Biggs and asked Biggs to meet with him and another FBI agent at a local restaurant. Biggs agreed. Biggs learned after he travelled to the restaurant that the purpose of the meeting was to determine if Biggs could share information about Antifa networks operating in Florida and elsewhere. They wanted to know what Biggs was “seeing on the ground.” Biggs did have information about Antifa in Florida and Antifa networks in other parts of the United States. He agreed to share the information. The three met for approximately two hours. After the meeting, Biggs stayed in touch with the agent who had called him originally to set up the meeting. He answered follow-up questions in a series of several phone calls over the next few weeks. They spoke often.

This is the same office where an FBI Agent, in August, refused to participate in the arrest of militia-associated men who planned to bring weapons to January 6. The agent then ran to Chuck Grassley and Ron Johnson, bitching, after his clearance was suspended because he didn’t like the way FBI was running domestic terrorism investigations.

The single FBI informant known to have been present on January 6 appears not to have told his handlers about a meeting he was at the night before where using violence was discussed. And so DOJ has given two members of the Kansas City Proud Boy cell who were with him — Ryan Ashlock and Louis Colon — unbelievably sweet plea deals, I suspect to sustain the rest of the cases against the Proud Boys.

Both Tarrio and Biggs have made specific requests for their own communications with law enforcement — in Tarrio’s case, he claims it is Brady material. That is, they plan to argue they couldn’t be guilty of plotting against the government because they’ve been so chummy with often right wing authoritarian cops in the past.

Witness backsliding

The Proud Boys have also been very good at pressuring witnesses not to testify against the mob. It had seemed that Ryan Samsel might enter into a plea deal describing what transpired between him and Biggs right before he kicked off the entire riot, for example, until Samsel was assaulted in still unexplained circumstances at the DC jail. Zach Rehl seemed like he was considering a plea deal until Tarrio called Rehl’s wife about it.

Jeff Finley, who was a co-traveller of Rehl’s, seems like he cooperated his way into a misdemeanor plea deal (like Brandon Straka is known to have), but in a July request for a four-month continuance, the government seemed to suggest they weren’t sure how complicit Finley was.

The government requests this continuance to allow time for the parties to fully evaluate the nature and seriousness of the defendant’s misconduct and for the parties to prepare a full and complete allocution to assist this Court in its sentencing.

All this is background to the Jeremy Bertino plea rolled out yesterday. Bertino was a high level Proud Boy who, because he was injured in a December 12 brawl, was not present on January 6, but was closely involved in discussions in advance of it.

Bertino’s possible arrest has been anticipated for months. A misdemeanor docket for Bertino was briefly unsealed on September 15 but then sealed. Yesterday, he pled guilty to one count of seditious conspiracy and one count of unlawful weapons possession for a small arsenal he had in spite of a past felony conviction. He is, as everyone (including me) has reported, the first Proud Boy to plead to seditious conspiracy. And he’s another participant in key leadership discussions in advance of the attack.

His statement of offense, however, leads me to wonder whether he didn’t get this plea deal in part to keep Charles Donohoe — who like Bertino is from North Carolina, and who pled guilty to obstruction and assault in April — from backsliding as a cooperator.

Most of the new details the SOO provides focus on 2020, describing how the Proud Boys radicalized in late 2020 and emphasizing the import of the December 12, 2020 confrontations, including explicit discussions about using Tarrio’s anticipated arrest to rile people up against the cops. The description of changing attitudes about the cops (something that has featured in Proud Boy indictments from the start) may serve to combat Tarrio and Biggs’ efforts to claim chumminess with the cops.

Bertino further understood that due to a number of negative interactions with law enforcement, including the events of December 12, the Proud Boys increasingly viewed police as the enemy and Proud Boy members increasingly referred to the police as “coptifa,” meaning that they viewed the police as siding with Antifa.

The SOO explains that Bertino did not know what plan Biggs and Nordean came up with at a still unexplained meeting around 9PM on January 5. A very similar paragraph appears in Donohoe’s statement of offense.

What I’m most surprised about is who it includes and who it excludes: The SOO names Donohoe at least twelve times — sworn statements implicating Donohoe in events, many of which he himself admitted to in his own SOO. That shouldn’t be necessary for a cooperating witness (though because they were both in the Carolinas, the two men would have worked closely together). While it mentions Person-3, whom Alan Feuer has identified as John Stewart, it does not name Aaron Wolkind at all, referred to frequently in earlier Proud Boy materials as Person-2. With the exception of Person-3 (who is not yet charged), the focus is entirely on those already charged in the leaders conspiracy, not any other Proud Boys.

It is undoubtedly an important step to get a plea to sedition from someone who wasn’t even present the day of the attack. But that doesn’t alleviate the many things that make this case more complex than the Oath Keeper one.

12 replies
  1. NeoGeoHa says:

    As Rage Against The Machine warned us: Some of those that work forces, Are the same that burn crosses.

  2. Just Some Guy says:

    “Most of the new details the SOO provides focus on 2020, describing how the Proud Boys radicalized in late 2020…”

    Could you please clarify what you mean by “radicalized?” I presume that just means contextually as to the actions on January 6th, 2021 — whereas the Proud Boys have always been obviously “radicalized” in the sense of ties to white supremacy and right-wing extremism.

    Also, given these PB ties to law enforcement, I’m curious about the possibility of charges related to furthering the PB conspiracy, especially given the news yesterday during the OK conspiracy trial that Stewart Rhodes was allegedly in touch with Secret Service agents. “I’ll take my answer off-air,” as they say… thanks!

  3. Alice Stevens says:

    I would revise a point or two from personal experiences with these people over the years but your point is well enough as is. Rhodes in particular is otherwise just a media figure and prop hence the emphasis and coverage and that’s what’s up there imo. Has been going back about a decade though few seem to research it despite being a click away from their hands. I actually recall that goofball from Montana even, and the PB from other interactions around the country as well the police forces end of this. It’s been sort of a shocker to see his face and name here to me. Sort of not since I am aware he had friends in the news outlets propping him and helping him get a platform. I thinks important and readily neglected by the media in this: “How did this chump from Kalispell, Montana get all the way to the White House and on the national stage?”. Like what happened between there and now? The answer to the question is underrated, same for the rest. None of this happened overnight.

    Not that I have great expectations of the MSM currently aside for them for them to generally pump out click bait. If it was otherwise they wouldn’t be making swipes at our friend Marcy here all while swiping her content uncredited. Yet again it is still an important thing to think about for anyone else imo.

  4. Ginevra diBenci says:

    Thank you, Dr. Wheeler, for this important post. I have been waiting a long time for someone in the media to apply the newly commodified word complexity to the FBI. As in, the FBI aren’t our friends just because some of them executed that August 8 search warrant. They are a law-enforcement agency comprised of the kind of people who go into law enforcement, and as such they are vulnerable to corruption, defined as deviance from their stated task, by those with political/personal axes to grind. I saw this personally with the NYC field office in 2016; I couldn’t believe professionals would engage in such scummy behavior, but because of that I understand no one wears the proverbial white hat. There is just the law, and those who follow it. Or not.

  5. harpie says:

    [From BERTINO Statement of Offense pdf12/15] 39. At approximately 4:27 p.m. on January 6, 2021, Bertino posted to his public social media account, “DO NOT GO HOME. WE ARE ON THE CUSP OF SAVING THE CONSTITUTION. Stay on the grounds patriots.”

    • harpie says:

      4:04 PM MINUTA to RHODES Call :42
      4:05 PM RHODES to MINUTA Call 2:56
      4:05 PM President-elect BIDEN addresses the Nation on TV from Delaware
      4:05 PM STONE [at WILLARD] is talking on the phone to someone.
      4:10 PM [Oath Keepers] UNKNOWN LEADERS Signal; “Fight the good fight. Stand your ground.”
      4:11 PM TRUMP JR. to MEADOWS: Now Biden beating us to the punch
      4:13 PM Jim ACOSTA [CNN] tweets:
      “A source close to the White House who is in touch with some of the rioters at the Capitol said it’s the goal of those involved to stay inside the Capitol through the night.” // 4:13 PM · Jan 6, 2021
      4:14 PM TARRIO posts a message in that same group chat [SEE 2:39 PM] that stated, “They’ll fear us doing it again…” A member of the group asks, “So what do we do now?” TARRIO responds at 4:14 PM: “Do it again.”
      4:15 PM Rep. HERRARA BEUTLER to MEADOWS: We need to hear from the president. On TV. I hate that Biden jumped him on it
      4:17 PM Two hours after the riot started, Trump finally acquiesced to recording a video statement. […] An aide present for the recording said, “Trump had to tape the message several times before they thought he got it right.” // In earlier versions he neglected to tell his supporters to leave the Capitol, according to [Jonathan] Karl.
      4:17 PM TRUMP tweets VIDEO:

      TRUMP: I know your pain. I know you’re hurt. We had an election that was stolen from us. It was a landslide election, and everyone knows it, especially the other side, but you have to go home now. We have to have peace. We have to have law and order. We have to respect our great people in law and order. We don’t want anybody hurt. It’s a very tough period of time. There’s never been a time like this where such a thing happened, where they could take it away from all of us, from me, from you, from our country. This was a fraudulent election, but we can’t play into the hands of these people. We have to have peace. So go home. We love you. You’re very special. You’ve seen what happens. You see the way others are treated that are so bad and so evil. I know how you feel. But go home and go home at peace.

      4:27 PM [WaPo description of TUNNEL fighting] “a wave of rioters attacked police who were standing guard inside the Capitol’s West Terrace archway”
      4:27 PM BERTINO [to his public social media account]: “DO NOT GO HOME. WE ARE ON THE CUSP OF SAVING THE CONSTITUTION. Stay on the grounds patriots.”

    • harpie says:

      2:38 PM Michael SHEAR to MEADOWS: Hey mark. Protestors are literally storming the Capitol. Breaking windows on doors. Rushing in. Is Trump going to say something?
      2:38 PM TRUMP tweets [VIDEO]
      Please support our Capitol Police and Law Enforcement. They are truly on the side of our country. Stay peaceful!
      2:38 PM [Oath Keepers] UNKNOWN to LEADERS; Signal “QRF standing by at hotel. Just say the word…”
      2:38 PM TARRIO writes on social media: “Don’t fucking leave.”
      2:39 PM CENTER EAST DOOR breached.
      2:39 PM PB member: “Are we militia yet?” // TARRIO [voice notes]: “Yep.” [] “Make no mistake…” [] “We did this…” [SEE later dialogue in this same group chat at 4:14 PM]
      2:41 PM RHODES posts another photograph showing the SOUTHEAST side of the Capitol with the caption: “South side of US Capitol. Patriots pounding on doors[.]”

    • harpie says:

      [pdf3/15] 9. During the fall and winter of 2020, Bertino noticed that members of the Proud Boys, including but not limited to MOSD leadership, were becoming more extreme and aggressive in their views. This trend accelerated after the December 12 rally, and it included members of MOSD leadership and MOSD membership with whom Bertino had conversations. For example, Bertino was involved in discussions with other Proud Boys, including but not limited to Tarrio, Biggs, Nordean, Rehl, and Donohoe, in which participants indicated a willingness to use violence affirmatively rather than only in a defensive posture.

      But on 12/20/20, TARRIO still called it “Ministry of Self Defense”

    • harpie says:

      At paragraph 13

      [… On 1/2/21] Bertino added Dominic Pezzola to the MOSD Members Group on that same date, shortly after Pezzola had traveled from New York State to North Carolina [12/30 and 31/20] to deliver a decorative shield to Bertino, for ultimate delivery to Tarrio.

      That bolded part I think is new…not sure because I haven’t been able to keep up.
      I’d really like to know what that “decorative shield” actually is/means.

    • harpie says:

      [pdf12/15] 41. On the evening of January 6, 2021, Bertino sent a message to MOSD members in which he stated, we had the power in our hands, and we gave it back to them.” In that statement, by “we,” Bertino referred to the Proud Boys and others who occupied the Capitol. He continued, “nobody wants to go to that second level yet, and that just proved it.”

      He additionally produced a podcast for public consumption in which he stated, among other things, “Here’s the problem with what happened today…half measures do nothing. Half measures get nothing accomplished.” He continued, “I’m not advocating for anyone to break the law, FBI, because I know you’re fucking watching, but when we don’t have a voice in said laws, should those laws actually apply to us?…We didn’t have to relinquish that fucking building to them.

    • harpie says:

      Comment about [pdf12/15] 41 in moderation.
      [Sorry, Rayne…I just want to mention that here for future reference in case it doesn’t get posted before the post closes.]

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