Litigating “‘Normies’ Smash[ing] Some Pigs to Dust” in the Proud Boy Leader Conspiracy

Ten months ago, I wrote a post describing how the Proud Boys were a key part of the overall assault on the Capitol, because they took “normies” and made sure they were deployed to maximal advantage, including having them do the dangerous job of “smash[ing] some pigs to dust.”

The plan required six types of participants to make it work:

  • People (Trump, Rudy, and Mo Brooks) to rile up large numbers of normies
  • Someone (Alex Jones) to guide the normies to the Capitol, probably while communicating with the Proud Boys as they kicked off the riot
  • People at the Capitol (Proud Boys and associates) to tactically deploy the normies as a weapon, both to occupy the Capitol and to create a very real risk to the members of Congress
  • Members of Congress (Paul Gosar and others) willing to create conflict that could be exploited in any of a number of ways
  • Masses and masses of people who, starting even before the election, had been led to believe false claims that their country was under threat; those masses did two things:
    • Enter the Capitol, with a varied level of vocal enthusiasm for the mayhem occurring, and make it far more difficult for cops to put down the assault
    • “Smash some pigs to dust”

Whether or not that conception is true — and just as importantly, whether DOJ can introduce the evidence to prove it at trial — has been the subject of recent pretrial litigation in the Proud Boy Leader case that may determine the outcome of the trial:

As I’ve been saying for 14 months, whether this approach succeeds at the Proud Boy trial will determine the degree to which higher ranking people who were conspiring with Joe Biggs and Enrique Tarrio can be implicated in a conspiracy with those who attacked the Capitol, as opposed to an incitement or aid and abet theory of criminal exposure. And whether it succeeds is neither an easy legal question nor, for a jury assessing guilt beyond a reasonable doubt, evidentiary one.

The opening filing in this dispute argues that even if the subordinate Proud Boys and affiliates who marched on the Capitol didn’t know all the plans and objectives of the conspiracy, they were still part of it. As DOJ describes, the Proud Boy leaders, including John Stewart (Person 3), who secretly entered into a plea deal, probably in June, intentionally aimed to get lower ranking Proud Boys to obey unthinkingly.

It is important to note that it does not matter whether all these members of the conspiracy understood and “agreed on the details” of the scheme, so long as they agreed on the “essential nature of the plan.” United States v. Gatling, 96 F.3d 1511, 1518 (D.C. Cir. 1996); cf. ECF 71 at 46 (Court’s ruling on Nordean and Biggs detention, explaining that “even if someone who was a part of the conspiracy expressed surprise at the way events unfolded that day or what the ultimate outcome was . . . that does not necessarily mean there wasn’t a conspiracy of the kind alleged.”). And in fact, the evidence will show that the conspiracy’s leaders purposefully kept subordinates in the dark about the precise details, urging them to “turn off [their] brains” and “follow the . . . guys you’re with.” ECF 475 at 15 (Statements Motion, quoting statement from Person 3 to MOSD members). In assembling their group of foot soldiers, the leader defendants sought loyal followers, not co-equal partners. Cf. United States v. Mahdi, 598 F.3d 883, 891 (D.C. Cir. 2010) (finding that evidence of defendant exercising “organization control” to keep “the worker bees in line” was intrinsic evidence of conspiracy). Willing followers all, the fact that each may not have been fully privy to the entire plan in no way negates their being co-conspirators.1 Co-conspirators need not share all of the charged criminal objectives of the conspiracy, so long as they formed some agreement with the defendants. Hypothetically, if a particular member of the marching group lacked sufficient understanding of what was happening in Congress to make him part of a conspiracy to corruptly obstruct an official proceeding in violation of 18 U.S.C. § 1512, he could still be part of a conspiracy to use force to oppose the lawful transfer of Presidential power in violation of 18 U.S.C. § 2384 or a conspiracy to forcibly prevent law enforcement officers from discharging their duties in violation of 18 U.S.C. § 372. His conduct is relevant regardless. [my emphasis]

Based on that logic, the filing argues that the tactically important violence of a number of Proud Boys (plus Robert Geiswein, who is being prosecuted by Proud Boy prosecutor Erik Kenerson) was part of the conspiracy.

  • Daniel Lyons Scott, aka “Milkshake,” a Proud Boy, led a crowd in shoving a line of officers to force their way up a set of steps leading to the Capitol.3
  • Alan Fischer and Zachary Johnson, both Proud Boys, were part of a crowd trying to force its way through a line of officers defending an entrance to the Capitol building known as the “tunnel” on the Lower West Terrace. Johnson passed weapons up to rioters on the front line of the crowd, including a sledgehammer and a can of chemical spray.4
  • Edward George, a Proud Boy, engaged in a shoving match with an officer while trying to force his way into the Capitol through the Senate Carriage Door.5
  • Steven Miles, a Proud Boy, shoved and threw punches at officers in an altercation at the west front of the Capitol, and used a plank of wood resembling a two-byfour to break a window to make entry into the Capitol building.6
  • Christopher Worrell, a Proud Boy, sprayed a chemical irritant while in the restricted area of the Capitol grounds.7
  • Robert Gieswein, who is not a Proud Boy but who joined the marching group and wore orange masking tape as insignia showing affiliation with the marching group, sprayed officers with chemical irritant at multiple times and places inside the Capitol.8

Note, I believe all of these defendants are still awaiting trial (though Milkshake was for a time plea-curious), and thus far, only Milkshake and Worrell have been charged with conspiracy, with each other. All the rest, and their co-defendants, could well be superseded with conspiracy charges if this structure succeeds at trial.

Also of note, this government argument preceded (and to some degree explains) the leak about Proud Boy informants who had no knowledge of a plan to attack the Capitol. The defendants want to argue that if Proud Boys didn’t know of the plan to attack the Capitol, there must have been no conspiracy to do so. DOJ argues that, particularly given the hierarchy and the planned close hold on the plan imposed in advance, it doesn’t matter if they knew the overall plan and in fact the ignorance of lower level Proud Boys was actually part of the plan.

But the government is not relying just on the actions of Proud Boys and affiliates. It argues that the Proud Boys “harnessed” others who were at the attack.

Evidence of the conspiracy is not bound by the actions of the co-conspirators. As the evidence will show, on January 6, the defendants sought to harness the actions of others to achieve their objective of forcibly opposing the lawful transfer of Presidential power. In so doing, the defendants used these individuals as “tools.”

That the government is arguing this is unsurprising. As I’ve noted repeatedly, senior Proud Boys discussed doing this explicitly the morning of the attack.

UCC-1: I want to see thousands of normies burn that city to ash today

Person-2: Would be epic

UCC-1: The state is the enemy of the people

Person-2: We are the people

UCC-1: Fuck yea

Person-3: God let it happen . . . I will settle with seeing them smash some pigs to dust

Person-2: Fuck these commie traitors

Person-3 It’s going to happen. These normiecons have no adrenaline control . . . They are like a pack of wild dogs

But the two sentence paragraph, above, is all that the opening motion describes with respect to “harnessing” “normies.”

Nordean’s short response on this point notes that the government had not yet proven the bulleted list of defendants were co-conspirators, much less provided any precedent to introduce the actions of people not alleged to be co-conspirators as evidence of the conspiracy.

Even more inappropriate is the government’s attempt to show the jury countless actions by nondefendants on January 6 who the government concedes are not “co-conspirators” even under its relaxed standards. Gov’t Mot., pp. 6-7. Although the government has no evidence that these protesters joined the charged conspiracies, it says their actions are somehow admissible because they are “tools” of the conspiracy. The government cites no rule or case law holding that the criminal actions of nondefendant “tools” of a conspiracy—conceded nonmembers—can be admitted against defendants in their criminal case. There is none. The government’s novel “tools” concept has no discernable limiting principle.

This argument accompanies Nordean (and Zach Rehl’s) First Amendment argument that the poor Proud Boys were simply engaged in a non-violent protest outside the Capitol when a bunch of unaffiliated people showed up and violently attacked the Capitol.

After which the Proud Boys took credit for what those purportedly unaffiliated people had done.

(Nordean’s filing also anticipated the extended sealed argument about a bunch of informant materials that he would later claim to be surprised by.)

In reply, the government uses analogies for other types of crime. This interlocking conspiracy, DOJ argues, is like a complex drug scheme where someone might be involved in delivering the drugs but not the money laundering.

An analogy illustrates the fallacy of Nordean’s argument. Imagine a defendant charged with one count of conspiring to possess cocaine with the intent to distribute and one count of laundering the proceeds of that drug trafficking. Imagine that an uncharged co-conspirator transported narcotics on the defendant’s behalf but had no involvement in, or knowledge about, the laundering of the money. On Nordean’s reasoning, the co-conspirator’s conduct would be excluded at trial because it was only related to “a conspiracy” to traffic drugs and not “the conspiracy” to commit both object offenses. ECF 505 at 2 (emphasis Nordean’s). See Joint Proposed Jury Instructions (submitted to the Court on 11/2/2022), at 18 (“To have guilty knowledge, the defendant need not know the full extent of the conspiracy or all of the activities of all of its participants. It is not necessary for the defendant to know every other member of the conspiracy.”).

Before DOJ describes how the “normies” “harnessed” in the attack are like “money mules” in a financial transaction, it cites the discussion in advance of inciting the “normies” or leading them as the tip of a spear.

Contrary to Nordean’s telling, though, there is nothing novel about the principle that the actions of third parties can advance a conspiracy even if those parties are not full members of the conspiracy. The notion that the conspiracy could operationalize other individuals as a force multiplier is not an invention of the government; to the contrary, the conspirators expressly discussed it. See, e.g., ECF 440-1 at 20 (Transcript of MOSD meeting where Bertino explains: “[T]hey’re gonna follow us now because, you know, we’re the tip of the spear.”); ECF 111-1 at 4 (discussion on morning of January 6 about hopes that “normies burn that city to ash today” and “smash some pigs to dust,” which was “going to happen” because normies “have no adrenaline control . . . They are like a pack of wild dogs.”).

Indeed, for example, it is common for financial schemes to involve the use of “money mules” who knowingly conduct transactions at the perpetrators’ direction while remaining unwitting to the essential nature of the arrangement. See, e.g., United States v. Thomas, 999 F.3d 723, 727-28 (D.C. Cir. 2021). The conduct of those “money mules” is relevant evidence of the financial scheming defendant’s criminal intent and unlawful conduct. This case is factually different, but the basic theory is the same. The limiting principle is whether, on the evidence at trial, a jury could reasonably find a factual nexus between the actions of the conspirators and the actions of the tools. See Fed. R. Evid. 104(b) (“When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist.”). [my emphasis]

There was a hearing on all this on November 18 at which the government introduced a new angle to its argument about “harnessing” the “normies” (it was live so there was no call-in). Joe Biggs (whose lawyers are representing few other January 6 defendants, and so many not appreciate how many January 6 defendants — whether trespassers or assailants — claim they just got “caught up,” including a bunch who cited the Proud Boys as inspiration) describes the argument this way:

The Government asserted at argument that what guns were to the Oath Keepers on January 6, non-party protestors were to the Proud Boys. It further attempted to explain what it meant by this clumsy analogy when it asserted that the Proud Boys “weaponized” third parties.

[snip]

Perhaps mindful of the difficulties its arguments presented, the Government asserted that the defendants had “weaponized” third parties, either fellow members of the Proud Boys, members of other groups, or so-called “normies” unaffilated with any group, to engage in acts of violence. The Government did not argue just how percipient agents were transformed into little more than zombies, or tools, at the disposal of the defendants.

[snip]

The analogy to “mules” in narcotics cases in unavailing. In the case of passive mules, that is a party unknowingly carrying a prohibited item from one location to another, the mule lacks knowledge and intent to commit a crime. They are used as a transportation device. They are agents acting on purposes all their own but used by others to accomplish unlawful aims The Government is unclear whether it seriously intends to argue that protestors on January 6, 2021, were used without their knowledge, forced, somehow, to carry on as foreign objects the ideas of another. One suspects the Government cannot mean this, otherwise why would they prosecute the nearly 1,000 individuals charged with crimes requiring intent?

Nordean, whose lawyers do represent a slew of other defendants (though usually those who had more culpability themselves), responds this way.

[T]he government proposes to show the jury the criminal actions of individuals on January 6 who are (a) nondefendants, (b) not members of the charged conspiracies, (c) not members of the Proud Boys, and (d) not linked to the Defendants through a recognized principle of liability such as conspiracy, aiding and abetting, solicitation, or “willfully causing an act to be done.” ECF No. 494, pp. 3-7. The government describes the relevance of such evidence as follows: “the ‘tools’ of the conspiracy [were] deployed by the defendants in furtherance of their criminal objectives.” Id., p. 3 (emphasis added). “These ‘tools’ served as instruments of the defendants to carry out their criminal objective. While unwitting to the criminal objective, they were employed to take action on behalf of and in furtherance of the criminal objective.” Id. (emphasis added). According to the government, this group includes all “normies” whom the Defendants “sought to ‘let [] loose’ on January 6.” Id. Although the government does not say it in plain English, its “tools” argument aims to show the jury any and all criminal acts by any actor on January 6 on the contradictory relevance theory that these Defendants caused all of those acts and yet, at the same time, are not “criminally liable” for any of them. ECF No. 494, p. 7.

In the November 18 hearing, the Court indicated that the “tools” evidence might satisfy the test of relevance even if the government could not establish that the Defendants are legally responsible for the “tools’” actions under a recognized theory of liability.2 The Court suggested that relevance may lie in the following argument: the government alleges that the Defendants conspired to use “normies” to further their conspiratorial aims and thus the “jury should be permitted to see” what Defendants “achieved by mobilizing the crowd.” ECF No. 494, p. 4.

However, embedded in the government’s argument is a factual premise failing which the test of relevance cannot be satisfied. Whether acts of violence on January 6 by “normies” were caused or “mobilized” by the Defendants is a fact question. If those acts were not caused by the Defendants’ “mobilization,” they are not relevant under the government’s novel argument. A counterfactual shows this to be the case. Suppose Normies 1-4 rushed past barriers, ran into the Capitol, and assaulted police officers. They have never heard of the Proud Boys, nor did they see or hear the Defendants on January 6. Displaying their actions to the jury cannot demonstrate the “manner and means of the defendants’ conspiracy,” ECF No. 494, p. 3, as there is no causal relationship to speak of.

In response, the government will try to contend that even absent any causal relationship between the Defendants’ actions and those of “normies,” the latter are relevant inasmuch as the Defendants allegedly dreamed of being or aspired to be an instigator of the normies on January 6. But while Defendants’ alleged pre-January 6 comments about riling up the normies may in that case still hold relevance as to the nature/scope of the alleged criminal agreement, the actions of the normies themselves would not be relevant. Absent any causal relationship between the Defendants’ actions and the normies’ criminal acts, the latter can logically show neither that the conspiracy “succeeded” nor that the Defendants’ alleged agreement somehow “planned” the normies’ actions even where unilaterally undertaken without knowledge of Defendants’ desires.

[snip]

Here, the government has adduced no evidence to show that the actions of the “normies” or other nondefendants were caused by the Defendants’ actions. ECF No. 494, pp. 3-7. None exists. The government has not adduced the statement of any “normie” or other nondefendant to the effect that their acts were “caused” by the Defendants. [my emphasis]

The bolded language may be the only place in the papers where the Proud Boy defendants address the repeated explicit reference in their Telegram threads to riling up “the normies.” But Nordean gets at a critical issue: The government has proof that the Proud Boys intended to “harness” the “normies.” He’s arguing they don’t have proof, perhaps in the form of witness testimony, that hundreds of other January 6 defendants did what they did because of actions of the Proud Boys. (If pressed, the government could come up with at least a dozen witnesses who did talk about following the Proud Boys, but I trust from Nordean’s claim that they haven’t committed to doing so, and one subtext of this fight is the aborted effort by DOJ to get Ryan Samsel to enter a cooperation agreement in which he would testify about what Biggs told him before Samsel set off the entire attack.)

The government, partly because Nordean is also challenging the reliance on earlier evidence and events at the two earlier MAGA Marches, describes first how the Proud Boy Leaders cultivated a certain kind of recruit leading up to the attack, using comms to show senior Proud Boy leaders picked members who had embraced violence to be part of MOSD and anticipated needing a lot of bail money.

The escalation of both violence and violent rhetoric among the Proud Boys from November through January is not only highly probative to the charged conspiracy, it cannot be separated therefrom. After the Ministry of Self Defense was approved as a chapter, the defendants in leadership set about hand-selecting other individuals to join the group. In deciding who to admit, the defendants drew on their knowledge and experience with them at prior rallies. The fact that some of the recruits came into the chat and nearly immediately made references to violence, without rebuke by Nordean or any other leader, is additional evidence both (1) why they were chosen for MOSD, and (2) what they had come to understand about MOSD’s purpose based on  their prior communications with the defendants and other leaders of the conspiracy.4 See Ex. 3 (proposed trial exhibits comprising messages from MOSD recruits upon joining group, expressing (1) willingness to “log into Minecraft”; (2) shared experience of previous “seek and destroy” mission in DC “where we had a target which was Black Lives Matter plaza”; (3) expectation that members were going to need “a lot of bail money”; (4) understanding that “protest time” means “punch ‘em in the face”; and (5) appreciation that “to be in this group, you need to . . . be able to fucking kick ass if you need to kick the fuck ass.”).

It responds to the complaints about the government’s theory of “riling the normies” by pointing to specific moments when the Proud Boys opened the way through which hordes would swarm.

To be clear, the government does not plan to argue that every member of the crowd on January 6 was a tool of the defendants’ conspiracy. The tools will consist primarily of those Proud Boys members and affiliates whom the defendants recruited and led to the Capitol as part of their marching group. As the government explained, many of these individuals would also qualify as co-conspirators who shared a criminal objective with the defendants (even if, as far as the followers understood, that objective was only to commit assault). See 11/18/22 Tr. at 66 (“[W]e would argue, first, that these people are co-conspirators.”); 119 (“[P]art of what the tools theory does is says, even if these people were just signed up to commit violence without knowing why or against whom it would be directed, that’s still relevant.”). In some other instances, of course, the tools will be apparent strangers whose conduct nonetheless has a causal relationship with the defendants. For example, video evidence at trial will show that numerous rioters surged toward the Capitol as a result of Nordean, Biggs, and others destroying a black metal fence that was obstructing the crowds’ progress. Video will likewise show that many rioters entered the Capitol through a window that Pezzola smashed. All these facts lend credence to Tarrio’s own evaluation of the causal relationship at work: “Make no mistake, we did this.”

Stated thusly, it is a more modest argument than the government could have made and may one day make. There’s no reference to Alex Jones delivering the mob created by Donald Trump to his allies (and former employee, in the case of Biggs) in the Proud Boys, for example. Instead, the government seems to be looking barrier by barrier to show that the Proud Boys created the breach through which thousands ran.

I’ve been expecting an argument like this for months. But I admit it’s a close legal call.

I keep thinking about two things as I read this: First, a chilling line in cooperating witness Matthew Greene’s statement of offense, where he likened the moment on January 6 when things turned from peaceful to violent to his time in Afghanistan.

Greene noticed that during and following the chanting, the mood in the crowd changed, and it reminded him of his time in Afghanistan while stationed there with the U.S. Army, when protests changed from peaceful to violent.

While I don’t know the military experiences of Joe Biggs or other Proud Boy veterans, what Greene was describing was the Proud Boys deliberately stoking an insurgency the likes of which many of the men present (both Proud Boys and others) had fought in Iraq and Afghanistan. Some of these guys know how to incite an insurgency because they fought them for so long overseas.

The other thing that’s not clear is who DOJ will have as witnesses. I don’t think Pezzola’s lawyers have submitted an active filing for weeks or months, a possible sign Pezzola is close to or has already flipped; given that he literally breached the Capitol, making way for everyone else, if he were a cooperating witness at trial it would be far easier to make this argument. And while the very first filing in this series described Aaron Whallon-Wolkind (Person 2) as part of the core conspiracy…

Specifically, the jury will be called upon to evaluate whether the defendants and their co-conspirators – including Enrique Tarrio, Joseph Biggs, Ethan Nordean, Zachary Rehl, Charles Donohoe, Jeremy Bertino, Persons 2 and 3, and Dominic Pezzola – entered into an agreement to accomplish an unlawful objective. The defendant’s own words, and those of their co-conspirators, reveal (1) their motive to stop the lawful transfer of power; (2) their agreement to use force to do so, including against law enforcement and elected officials; (3) their efforts to recruit individuals to carry out the criminal objective of the conspiracy; 1 and (4) their efforts to encourage other individuals present on January 6 to use force to achieve their objective.

… unlike Bertino (who formally pled guilty the day before this filing) and John “Blackbeard” Stewart (Person 3), who pled guilty in June, it’s unclear what AWW’s status is. That’s important because he was part of the plan to, “see thousands of normies burn that city to ash” on January 6.

The status of Ron Loehrke, another former Marine who played a key role in directing the attention of the rioters, is also unclear. A year ago, he was arrested on civil disorder and trespassing charges — but not obstruction or conspiracy — with co-defendant Jimmy Haffner (Haffner was also charged with a tactically important assault, at the East Door), but AUSA Kenerson has gotten three pre-indictment continuances of their case, through January 10, probably right in the middle of the Proud Boy Leader trial.

In other words, DOJ’s arguments about the way the Proud Boys deployed “normies” to carry out the bulk of the attack on the Capitol make a ton of sense given the evidence from the attack. This approach also helps to explain a lot of the oddities and apparent delays about the larger Proud Boy prosecution.

What’s unclear is whether DOJ will succeed in introducing it as evidence at trial.

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67 replies
  1. DoctorDoom says:

    Another hypothetical scenario to support DoJ’s argument. Conspirators A and B plan to rob a business. Conspirator A commits the robbery and conspirator B hires a car service to convey conspirator A from the crime scene to another location, but is not present at the robbery or in the hired vehicle. Conspirator B is clearly a member of the conspiracy, while the car service driver is clearly an unwitting tool of the conspirators.
    (mods: handle changed to meet 8 character requirement)

    [Thanks for updating your username to meet the 8 letter minimum. /~Rayne]

  2. LesNoyes says:

    …Tarrio’s own evaluation of the causal relationship at work: “Make no mistake, we did this.”

    That’s why they’re called “Proud Boys”.

    PS – Thank you for illuminating all of this for all of us.

  3. earthworm says:

    “The opening filing in this dispute argues that even if the subordinate Proud Boys and affiliates who marched on the Capitol didn’t know all the plans and objectives of the conspiracy, they were still part of it.”

    In the art of insurrection, or rebellion, is there a general logistical term for this whipped up use of the unwitting mass of bodies, “the subordinate Proud Boys and affiliates,” to power the objectives of the Robespierre-schemers at the top?
    (post-turkey day stupor: the only thing i can think of at the moment is mob violence, which is something different and more diffuse.)

      • bmaz says:

        I’m sorry is that closer to “Critical Race Theory” or “wokeness” in the pantheon of invented bullshit phrases that play into right wing propaganda?

        • Just Some Guy says:

          Can you please clarify what you mean by saying “Critical Race Theory” is in the “pantheon of invented bullshit phrases that play into right wing propaganda?”

          • giorgino says:

            Oh give us a break, you know full well what he means, and what “it” means. Geez, some guy “not been in country long distance”?

            • Susan D. Einbinder says:

              Stochastic Terrorism: A Linguistic and Psychological Analysishttps://www.universiteitleiden.nl › assets › issue-5
              “stochastic terrorism” is a new term describing what the DOJ is claiming happened: I think the person above who commented was just introduced it into the conversation, nothing more … unless I missed some coded content.

            • Rayne says:

              Ugh. Stop, the lot of you on this topic.

              Critical Race Theory (CRT) is legitimate; it’s economic theory taught at university level.

              However it’s also being used as a racist wedge issue, converted into a dog whistle to GOP’s racist voting base by GOP activist and professional hater Chris Rufo — this generation’s Lee Atwater wielding a new “Southern Strategy.” It’s also being used as an excuse to purge all discussion of racism and stop anti-racism efforts.

              I’m not going to let this go further because this issue is being distorted by otherwise well-meaning people who are amplifying racist demagoguery because they’re not prepared to stop it.

              • bmaz says:

                Naw, I’m sorry, “CRT” no longer stands for what you think it does, it now stands for what you object to. And when people talk about it, like the “woke” malarky, it should just be tuned out. It is now a McGuffin for dopes.

                The “critical race theory” you lionize is simply American history told honestly. But “CRT” of today has been bastardized by the right and would have history turned on its head.

                • Rayne says:

                  So long as you continue to delegitimize CRT, you’re part of the problem.

                  Your abuse of the word “woke” is likewise problematic.

                  And you’re also out of your fucking gourd if you think you, cis-het white dude, are going to lecture a woman of color about America’s deeply racist history. I wrote a post last year about the single paragraph and two footnotes in my high school American history text dedicated to the reason my father’s family never made it to the US but do go on about bastardization of history.

                  • bmaz says:

                    Oh, I have not “delegitimized” anything. The right nuts have, and this kind of acceptance of their terms and phrasings propagates what they are doing. And don’t pull that “cis-het white dude” garbage on me. What in the living hell do these semantics even mean, except as a dodge of the real underlying issues?

                    • Rayne says:

                      LOL they are the ENTIRE issue. Cis-het white dudes scolding and denying women, people of color, LTGBTQ+ and disabled persons their lived experience is the ball of wax. It’s a dodge to you because it doesn’t conveniently fit in your narrative.

                      It gets really fucking exhausting having this same conversation over and over again across so many forms of social media.

                    • bmaz says:

                      Absolute garbage. What is “exhausting” is arguing over common semantics, and acting like that is the thing..

                    • bmaz says:

                      Right back at you. But, hey, I can’t change my genetics, even if you and others want to falsely use them for your own purposes.

                  • Just Some Guy says:

                    I’m with you, Rayne. That was exactly what my question was trying to explore — why it is somehow acceptable to legitimize the right’s constant BS.

                    • bmaz says:

                      Oh, you mean exactly what the GOP is doing by pushing the “woke”, “cancel culture” and “CRT” horse manure? By doing so, you are complaining of exactly what you are propagating. Take a good look in a mirror.

                      This garbage is tiring and sickening, and plays STRAIGHT into the right wing hands. So, if you don’t want to propagate and legitimize the “right’s constant BS”, then maybe you ought to stop doing exactly that with cheap semantics that are their lifeblood.

      • skua says:

        “Simply put, critical race theory states that U.S. social institutions (e.g., the criminal justice system, education system, labor market, housing market, and healthcare system) are laced with racism embedded in laws, regulations, rules, and procedures that lead to differential outcomes by race.”
        – Rashawn Ray and Alexandra Gibbons November 2021  on the Brookings Institution website at
        https://www.brookings.edu/blog/fixgov/2021/07/02/why-are-states-banning-critical-race-theory/

        Anyone willing to share a link to a recommended scholarly article showing fatal flaws and failings in critical race theory?

    • dpa3.14159 says:

      Isn’t that sort of like what Ross Perot’s people did in Iran? Incite a mob to attack the prison where their EDS employees were held? In that case I think there were a lot of mobs attacking prisons during the revolution:
      https://en.wikipedia.org/wiki/On_Wings_of_Eagles
      I’m not trained is these matters but I imagine some people are.

      (Note to mods, extended my user name to meet new spec)

      [Thank You! – bmaz]

      [Thanks for updating your username to meet the 8 letter minimum. /~Rayne]

  4. Peterr says:

    From the DOJ filing quoted above:

    And in fact, the evidence will show that the conspiracy’s leaders purposefully kept subordinates in the dark about the precise details, urging them to “turn off [their] brains” and “follow the . . . guys you’re with.” ECF 475 at 15 (Statements Motion, quoting statement from Person 3 to MOSD members). In assembling their group of foot soldiers, the leader defendants sought loyal followers, not co-equal partners. Cf. United States v. Mahdi, 598 F.3d 883, 891 (D.C. Cir. 2010) (finding that evidence of defendant exercising “organization control” to keep “the worker bees in line” was intrinsic evidence of conspiracy).

    Adjectives matter, and the DOJ needs to quit editing out what I presume is profanity.

    If the defendants said “follow the well-behaved guys you’re with,” that’s one thing.
    If the defendants said “follow the fucking guys you’re with,” that’s quite another.

    Judges and jurors are adults, and can handle hearing the actual language used. Don’t take the emotion and intention of the speaker out of the defendant’s statements. Rather than removing the evidence from the courtroom, remove the Puritans.

    I’m not saying lawyers or judges should start peppering their statements in court with profanity, but if you are quoting what one of the people on trial said, then QUOTE WHAT THEY [insert your favorite expletive here for emphasis] SAID.

    [Side note: The Guardian had a great piece up several years ago, detailing how the word first was allowed to be used in their newspaper, during the obscenity trial involving Lady Chatterley’s Lover.]

    • emptywheel says:

      It’s not profanity. A longer version is in the MIL to submit statements, the first linked doc.

      Turn your brains off a little bit on trying to figure out what the big picture is, and
      follow the ten guys that you’re with. You’re going to have a leader of those ten
      guys…. [Directions] could come from any single person that you see on your
      screen right now…Yes, you might be getting told things from different people, but
      it’s all information from the same plan. Biggs is not going to tell you something
      different than I’m gonna tell you. Enrique [Tarrio] is not going to tell you
      something different than Zach [Rehl] is going to tell you. It’s all one operational
      plan, so don’t get hung up on the delivery. The information is all the same.

          • [email protected] says:

            Court rules for the Circuit have word, page and volume limits. 35 pager cannot exceed 13,000 words (and by my count the filing has about 11,900) and cannot exceed 1300 lines. Moving from unbreakable text to ellipses could help with line movement, I think, and if you look at the very last line of text on page 34, it appears to be an extreme right margin hugger. I don’t know how to do a quick line count of a .PDF, so not sure here.

            Since it contains a lot of single spacing (quotes), it is very possible the filing reached the word and/or line limit midway down page 34, even though space- or volume-wise the text could run onto the end of page 35. (The signature page does not count toward page, volume or word limit).

            When I was a News reporter, we trimmed out 3 letter words all the time to stay inside the character limit of a newspaper’s printed column. My copy editor would even try to use a simile without Ms or Ws to make a widow line join her comrades, because those characters take up more space. I do it now to save paper if its a document i need to print, if that excess line causes a jump to the next page (with orphan / widow turned off in MS Word, of course). ‘Ten’ is more slender than ‘. . . ‘, but the latter, by Bluebook rule has space between the periods, so that’s what made me wonder if it might help with line count. But I do agree with others that it intuitively does not seem on its face to be a space saver.

            If this were an indictment or affidavit in support of indictment or warrant, you’d exclude or redact a number reference for several strategic reasons, but those don’t apply to this sort of motion, I don’t believe.

    • Tom-1812 says:

      I see from Dr. Wheeler’s comment that we’re not dealing with a case of ‘expletive deleted’, but I agree with your point about the importance of hearing exactly how these people expressed themselves “warts and all”, as Oliver Cromwell would have said. I think that’s one of the reasons the last public hearing of the January 6th Committee was so effective, because we heard in an unvarnished manner without any mitigating bleeps just how brutally and viciously Roger Stone and his cronies talked among themselves and stated their goals and modus operandi for the march on the Capitol.

    • giorgino says:

      As for what was said, “what about John le Fucker, who gave us our very 1st fuck, in 1278? His name resembles our “fuck” only accidentally, being but one of many possible outcomes of a common French name of the period that started as Fulchier; there were Fulchers as far back as Old English, before the Norman conquest.” — just quoting John McWhorther

  5. Fedupin10 says:

    Thank you for the succinct analysis.
    Reading this I can’t help but think this scenario is TFG’s (and the Ratfucker’s) whole MO; to whip up a crowd with a bunch of specious grievances and ask shouldn’t “something” be done about it?. Then a handful of Agent Provocateurs are ready to show the crowd what that something is.
    It seems the PB are not completely aware they too were somebody’s tool.

    • FL Resister says:

      That matter should be in Special Counsel Jack Smith’s purview according to his official statement upon accepting US Attorney General Merrick Garland’s appointment November 18th:

      “I intend to conduct the assigned investigations, and any prosecutions that may result from them, independently and in the best traditions of the Department of Justice. The pace of the investigations will not pause or flag under my watch. I will exercise independent judgement and will move the investigations forward expeditiously and thoroughly to whatever outcome the facts and the law dictate.”
      justice.gov – just wow the last line if the backbone

  6. Savage Librarian says:

    In the following paragraph about a quarter of the way into the post, I think you meant to say John “Blackbeard” Stewart (Person 3), instead of James:

    “The opening filing in this dispute argues that even if the subordinate Proud Boys and affiliates who marched on the Capitol didn’t know all the plans and objectives of the conspiracy, they were still part of it. As DOJ describes, the Proud Boy leaders, including James Stewart (Person 3), who secretly entered into a plea deal, probably in June, intentionally aimed to get lower ranking Proud Boys to obey unthinkingly.”

  7. Ruthie says:

    “Proud Boys deliberately stok[ed] an insurgency the likes of which many of the men present (both Proud Boys and others) had fought in Iraq and Afghanistan. Some of these guys know how to incite an insurgency because they fought them for so long overseas.”

    Those people would presumably be sensitive enough to pinpoint the moment at which peaceful protests turn violent, something that might fly over the heads of normies caught up in the moment. That awareness would be important to gauging when it’s safe to move to the next level.

  8. Vernster says:

    OT, but I was sorry to see that Dr. Wheeler has “protected” her tweets. Don’t have a twitter account and never will, but was an avid follower. Checked in multiple times per day. Big hole in the info flow.

    To Rayne: From here on, my new name will be Vernster to meet the 8 letter requirement.

    [Thanks for updating your username to meet the 8 letter minimum. I’ve changed your usage on this comment from your old name to new, might as well start now. /~Rayne]

    • emptywheel says:

      I’m trying to do more of that at @[email protected] in any case. But the fascists have targeted me for the moment on Twitter so I’ve protected. Hopefully it’ll be temporary but that’ll only happen if someone takes the keys away from Elmo.

      • Vernster says:

        From what I understand re the recent “purge” you’re among honored company.

        I’m rooting for bankruptcy! Thiel, too!

        I suppose I’ll just have to wait for you to get round to posting here.

      • LadyHawke says:

        You are one of the dwindling reasons I still pop into the deranged birdhouse (never got an account). I assumed that’s what was happening. Have been watching mastodon, patiently. Take good care.

      • FiestyBlueBird says:

        I, too, felt a loss seeing that. I’ll never join Twitter either, but have several “smarter than the average bear” type people’s Twitter page bookmarked in my browser. Bummer. But I’m sure everyone here understands (and probably many are on Twitter, so it wouldn’t affect them.) Anyways…take care. Thanks for what you do.

        • P J Evans says:

          I have an account, but bookmarked all the people I want to read. EW is one of those on my regular circuit.

              • greenbird says:

                it’s a big problem for me, because mastodon.social doesn’t want to register me, and marcy’s my first go-to every day.
                i’m assuming as long as pending is in effect, even tweets side-barred here are inaccessible, so my tears are tidal-wave sized. HOWEVER, i just don’t follow many people, choosing to tab their urls, which is why i’m in this predicament.
                if i knew from a trusted tweep which mastodon server is a good choice, i’d continue with registration. otherwise, i’ll be bereft of all the recipes, dog pics, RTs and other amuses bouche … i spoze.
                thanks for suffering with me..

              • Vernster says:

                You can lurk at Mastodon. I have Dr. Wheeler bookmarked. She’s not currently posting like (frequency) she did at Elmo’s Folly so you haven’t missed much yet.

  9. iamevets says:

    Pretty much the only people i access on twitter are emptywheel, bmaz, kyle cheney and a few of the other legal folks who post fact based legal news. Bummed that the tweets are protected. I only joined in the first place to follow emptywheel.

    thank you elon for restricting access to free speech that has truth in it, while assisting in lying “speech”. and hate speech. will he be like trump and everything he touches ultimately dies?

  10. vinnieGambone says:

    Thuggery has always been part of the seduction. The possibility of violence is how they recruit. Same promise motivated Hitler’s brown shirts. Whether it’s HANG MIKE PENCE or Death to America, it almost doesn’t matter what is being chanted, just so long as there’s chanting going on.
    Fomenting the mood was integral to the plan. “It’s going to be wild.”
    Those who planned and executed this attack would be pleased had it turned into America’s Magadishu. It was normies beating David Cleveland with Bamboo shoots and dragging him through the streets long after he was dead. This is the the kind of evil justice is looking in the eyes. Please stop them.

    • skua says:

      The “normies” in Mogadishu saw US forces as the enemy, having just had a peace negotiation meeting of the local power elites and their wives and children bombed knowingly by USA, thereby guaranteeing, in the eyes of the locals, ongoing warfare – or at least this was so according to a report that I read years ago on the web.
      If so then MAGAdishu would have followed a USAF strike on the Capitol. And I’d be asking where the actual evil was.

      • Vinnie Gambone says:

        Appreciate being schooled on Mogadishu.. Clearly a bad example. Still, defendants were counting on Normies acting up to aid defendant’s plan. .

        • skua says:

          The report I pointed at was by a journalist who said that it never got taken up by the mainstream services – so it isn’t as “verified” as I’d like.
          And yes your major point stands.

  11. Susan D. Einbinder says:

    While I would like to see all of the Proud Boys found guilty, as an “I am not a lawyer,” how strong of a legal argument is it to state that some people were influencing others to do their bidding when the ‘others’ were not directly informed of it? Does it matter how that was communicated – or does it have to be? Something about this made me think of Stanley Milgram’s 1963 study on obedience, that showed that most people simply do what they are told, even when they know that they will severely harm or even kill another person (but they really weren’t in the study). I get that the people doing the manipulation are on trial, not the ‘normies’ or those being manipulated, but would appreciate your legal perspective.

  12. Zinsky123 says:

    This is another outstanding post and I continue to sit in amazement at Marcy’s ability to track so many legal cases simultaneously and push the thread through the cases to weave them all together. Phenomenal work. The links are incredibly helpful, as well. Anyway, as a non-lawyer I am also curious why it is necessary to prove the Proud Boys “harnessed the normies”, in order to ultimately convict them on the federal seditious conspiracy charge? If they have already exploited the cell phones of the leaders (which I assume they have) and that evidence is admissible in court, why does DOJ need to build and support this narrative about harnessing normies? Sorry if this seems ignorant but it just seems like a lot of work, when the Telegram messages between the MOSD scumbags would be more than enough for me to find guilt beyond a reasonable doubt, if I were on the jury!

    • harpie says:

      “why does DOJ need to build and support this narrative about harnessing normies?”

      I’m wondering if it may be because DOJ is not planning to stop with the PB [OK] “Leaders”. The levels of Insurrectionists above them, and TRUMP, the Pinnacle of the Plot [I call them RABBLE ROUSERS] have all been “riling up the normies” since at least 2/3/20, using Roger STONE’s playbook from 2016. [Screenshots here: https://twitter.com/JDiamond1/status/1224558424152772608 12:00 AM · Feb 4, 2020]

      2/3/20 TRUMP TEAM yells “RIGGED!” on Twitter:
      1] PARSCALE [10:19 PM 2/3/20]
      2] KAYLEIGH [11:06 PM 2/3/20]
      3] JUNIOR DON [11:36 PM 2/3/20]
      4] ERIC [Second Son][11:41 PM 2/3/20]

  13. wetzel says:

    I thought this video piece from June was pretty incredible, “How the Proud Boys Breached the Capital – Rile Up the Normies” by Reneau, Cooper, Feuer and Byrd at the NY Times. I think it does not get linked to very often because it is 20 minutes long.

    https://www.nytimes.com/video/us/politics/100000008392796/rile-up-the-normies-how-proud-boys-breached-the-capitol.html

    I think if the prosecutors can get anything like the fact set of this NY times video into evidence, the jury will have a coherent narrative that shows the criminal intention in the coordinated behavior of the Proud Boys conspiracy to direct the mob into the capital. It’s plain there in sense certainty.

    I was frustrated Jan 6 committee did not show all this to the American people, but they were relying on testimony top-down, White House staff, the Arizona Speaker of the House, or fraudulent electors. The Jan 6 investigation is top-down, and the Justice Dept investigation is bottom-up. I think it started pretty much with the “normies”, though they’ve been investigating things like the fraudulent electors for a while now.

    If any conspiracy has crooks and dopes, the normies are dopes like the fraudulent electors. Imagine being a normie, going down there to Washington DC, sick in the head with Q-anon fever dreams, and then getting instigated like some mobik to throw your life away on the capital steps for Donald Trump. Hunter S. Thompson sure did miss out. He should have stuck it out to see all this.

  14. harpie says:

    OCHS: https://www.documentcloud.org/documents/23318823-221125-ochs-sentencing-memo#document/ []

    11/7/20 [p4] [on Skull and Bones encrypted chat]

    TARRIO: “Dark times if it isn’t reversed…and if it’s reversed…civil war.”
    MEMBER 1: “Its civil war either way.”
    OCHS: “It’s really not. The odds are with us because of the Supreme Court boys. I’m pro violence but don’t blow your load too soon.” [] “Not to be an anti-murder buzzkill but I really think this ISN’T fucked. Once it is, let’s go wild.” []”Bush/gore ruling took till December…Trump has a MUCH stronger case.” [] “Americans are weak and don’t want to fight. Them more than us, but what’s really going to matter to the common man is what the Supreme Court says. And it will say.”
    MEMBER 2: Interesting that Trump got that woman through just before this huh. Could be the ace up his sleeve.”
    OCHS: Don’t fuck up the ruling. It’s a better chance than fighting.” [] Not till the law enforcement institutions [are] weakened or more on our side. We lose right now.” [] I’ll still chimp out if I’m wrong about the Supreme Court tho…we just have to TIME IT RIGHT and DO IT SMART.”
    MEMBER 3: “veterans with combat experience” should “form militias.”

    • harpie says:

      12/19/20
      12:45 AM [approx] The “craziest meeting” of the TRUMP presidency ends
      1:42 AM EST TRUMP tweets:

      Peter Navarro releases 36-page report alleging election fraud ‘more than sufficient’ to swing victory to Trump [link]

      A great report by Peter. Statistically impossible to have lost the 2020 Election. Big protest in D.C. on January 6th.
      Be there, will be wild!

      [TIME?] [Skull and Bones]: MEMBER 1: “Trump is calling for proud boys to show up on the 6th.” [OCHS, TARRIO and OTHERS then discussed arranging a conference call.]

      12/20/20 TARRIO creates encrypted message group MOSD [“Ministry of Self Defense”]; TARRIO, OCHS, NORDEAN, and OTHER PROUD BOYS. [TARRIO: [MOSD] is a “national rally planning committee” of the Proud Boys with a “top down structure” that would include “hand selected members.”]

      1/2/20 [MOSD] MEMBER: “It would be foolish not to wear body armor to DC. Lot’s of normies and militia groups will be doing the same and not wearing colors may embolden the normies that armor is normalized.”

      1/6/21
      2:23 PM OCHS and DECARLO enter the Capitol through the Senate Wing Doors
      2:26 PM They arrive at the CRYPT

  15. harpie says:

    TARRIO to Alexandria:

    https://twitter.com/rparloff/status/1597644255279075330
    12:30 PM · Nov 29, 2022

    A transport order sending Enrique Tarrio from a FL jail to the Alexandria (VA) Detention Center suggests that Judge Kelly still plans to start the Proud Boys seditious conspiracy trial 12/12/22. Defs had filed … /1 [screenshot]

    … motions seeking to dismiss or possibly postpone the cases after the govt filed 100s of pp of discovery docs in early Nov. That led to a sealed hearing on 11/14 that @alanfeuer reported on. [NYT link]

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