Jan. 6 seditious conspiracy comes into focus at Proud Boys trial as classified ‘spill’ roils proceedings

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The Proud Boys seditious conspiracy trial started this week with prosecutors rolling out meticulous frame-by-frame video footage from Jan. 6 that, for the first time in more than a month of proceedings, painted the clearest picture yet of the extremist’s groups alleged coordinated efforts to stop the U.S. Congress from certifying the 2020 election.

But as soon as presentations of that compelling—and often damning—evidence and testimony had concluded, the already-slow-going trial was abruptly halted by revelations over a “spill” of potentially classified FBI communications inadvertently disclosed to the defense.

The materials first bubbled to the surface when Nick Smith, the defense counsel representing Proud Boy Ethan Nordean, began cross-examination of FBI Special Agent Nicole Miller, a lead case agent on the Proud Boys probe. Nordean is a former chapter leader of the neofascist network who is now facing seditious conspiracy charges alongside the group’s onetime ringleader Henry “Enrique” Tarrio and their self-proclaimed “western chauvinist” cohorts Joseph Biggs, Zachary Rehl, and Dominic Pezzola.

Miller had for two days testified to her painstaking review of police bodycam footage, closed-circuit surveillance video, and other media broadcasts from Jan. 6 as she and assistant U.S. Attorney Erik Kenerson neatly buttoned up some of the last pieces of evidence expected from the prosecution as they edge toward the end of their case-in-chief.

But once Smith began to cross-examine Miller with the aim of impeaching her credibility and potentially striking the gut punches of testimony and evidence she delivered this week, the attorney revealed that the prosecution had, in preparation for trial, turned over an Excel spreadsheet to the defense containing Miller’s communications with fellow FBI agents.

While by itself such production is standard for a criminal trial, that spreadsheet, Smith said, also happened to feature more than 1,000 “hidden” rows of Miller’s internal FBI messages, some related to the case, some not.

Crucially, some of those messages, Smith alleged, indicated that agents had improperly reviewed privileged attorney-client conversations between Nordean’s co-defendant, Zachary Rehl, and Rehl’s former attorney, the recently suspended Jonathan Moseley, while Rehl was in detention. One of the messages appeared to show an FBI agent telling Miller that Rehl, the former president of the Proud Boys Philadelphia chapter, was ready to fight looming charges at trial.

“Don’t freak out Jason and Luke yet,” the agent identified as T.J. Wang wrote to Miller.

“Jason” is believed to be assistant U.S. Attorney Jason McCullough, one of several attorneys working the Proud Boys seditious conspiracy case. “Luke” is believed to be Luke Matthews Jones, another attorney initially assigned to the investigation.

Another message that was sent to Miller and revealed in court read, “You need to go into that CHS [confidential human source] report you just put and edit out that I was present.”

Smith seized too onto a message sent to Miller by another agent assigned to a different case. The other agent recounted a directive that they had received from a higher-up about “destroy[ing] 338 items of evidence.”

Smith’s line of inquiry triggered objections from prosecutors immediately and on Wednesday, presiding U.S. District Judge Timothy Kelly abruptly stopped the cross-examination and dismissed jurors early so the parties could discuss the evidence. Once outside their presence, Kelly went back and forth over the messages’ relevance and scope. Rehl’s defense attorney, Carmen Hernandez, quickly raised the alarm about potential Sixth Amendment violations citing the alleged FBI review of Rehl’s jailhouse communications with his former attorney.

In short order, a chorus of motions for mistrial by the defense rang out.

Kelly was not immediately convinced the communications fell within the narrow scope of Miller’s testimony in court, since most if not all of her testimony revolved around the Proud Boy defendants’ movements on Jan. 6 and their communications. With three months of trial in earnest long underway, Kelly cautioned both parties to slow down and assess the path forward after returning to their “war camps or peace camps” for the night, he said.

By Thursday morning, assistant U.S. attorney Jocelyn Ballantine, who is overseeing the case against the Proud Boys, told Judge Kelly that the prosecution had not fully appreciated the complexity of the inadvertent exposure.

“It appears [some of our] Jencks production may include a spill of classified information,” Ballantine said before requesting the Justice Department receive a single day to complete a classification review of Miller’s materials and claw back any contents for national security purposes before the trial resumed.

Defense attorney Norm Pattis, who represents Joseph Biggs along with defense attorney Dan Hull, was adamant that the government’s oversight should rightfully be to their benefit. Without a court order, Pattis told Judge Kelly, he would not return any documents already in evidence and further, he would use them to vigorously defend his client. At the same time he made these pronouncements however, Pattis also conceded that as far as anyone knows, the messages at issues might be wholly unrelated to the Proud Boys case anyway. That included, he said, the communications about the destruction of evidence.

Nevertheless, Pattis still asked the judge to appoint an independent party or special master to conduct a classification review. His request was matched by Rehl’s attorney Carmen Hernandez though Hernandez insisted that much of the material appeared innocuous to her eye. As Hernandez began to read portions she deemed unclassified aloud in court—prompting all of the color to drain from Judge Kelly’s face—Ballantine stepped in.

Since Miller had already testified as a witness for the government on direct examination, the prosecution was now precluded from speaking to her about the case any further in private. By having Miller testify openly in court, Ballantine argued this would establish how Miller conducted her review without adding further delay to the trial or more overt exposure of sensitive information.

Returning to the stand but outside the view of the jury, Miller testified Thursday that she was ordered by FBI headquarters to go through a collection of her internal communications pulled from the FBI’s in-house messaging program known as Lync. She was to review messages from the period of Jan. 6, 2021, to Nov. 1, 2022, just before the originally anticipated start date of the Proud Boys trial. That final compilation was then to go to prosecutors at the U.S. Attorney’s Office who could pore over it before passing it off to the defense for discovery.

The special agent said she pulled somewhere between 12,000 to 15,000 lines of information. That would make up thousands of rows, but what she remitted to prosecutors ultimately included 25 to 26 rows. The rest of the rows, it would seem, were hidden through what prosecutors initially described as a possible glitch in the spreadsheet but the exact reason was not made clear in court this week. As a result, Ballantine was equally uncertain about whether Miller had conducted the review of only her messages in the dataset or if  Miller had conducted a review of all the messages—including those rows now hotly in the defendant’s possession.

The distinction was key, and Ballantine, unfortunately for the Justice Department, elicited that Miller had not reviewed those messages for classification purposes.

“The FBI needs to conduct that review and this information will allow us to conduct [it]. I understand it would appear to counsel that some of these Lync messages appear not to be classified and that is correct, but the FBI needs to conduct, consistent with its national security obligations, that review,” she said. “I would ask that counsel be instructed by the court not to further review the spreadsheets, and not to send them to anyone else while the FBI conducts a classification review of messages sent by other people in that spreadsheet.”

Judge Kelly agreed, orally issued the order, and left the evidence in the defense’s hands. The matter will be picked up on Monday.

This interruption to the pace of the trial is but the latest in a long series of fits and starts that have pockmarked proceedings from the beginning. The trial was meant to begin last August but openings were delayed by the judge in light of the Jan. 6 committee’s release of its final report and transcripts at the end of last summer. The start date was then moved to December and jury selection alone took almost two weeks as parties questioned a pool of 150 prospects before the group was whittled down to 16 jurors including alternates.

More than a dozen requests were filed by the Proud Boys to change venues and before finally beginning the historic trial, defense counselors Nick Smith and Carmen Hernandez both threatened to withdraw from the case altogether when dissatisfied with some of Judge Kelly’s early evidentiary rulings. Biggs’ attorney Norm Pattis was nearly thrown off the case completely when he was suspended from practicing law for six months after his botched handling of sensitive documents for client Alex Jones in Jones’ Sandy Hook defamation case. Pattis appealed and his suspension was postponed. Given the months of delays up to that point, Kelly allowed Pattis to represent Biggs, recognizing the hardship of bringing a new attorney into the fold at such a late hour. Not helping matters any further was a potential conflict of interest that arose with Biggs’ only other attorney at the time, Dan Hull. Just days before the trial was to finally begin in January, Hull informed the court that he had contacted Proud Boy Jeremy Bertino—who ultimately flipped on Tarrio and pleaded guilty to seditious conspiracy —long before the trial began. Hull had talked to Bertino about possibly representing him. As a result, only Pattis was able to cross Bertino. Roger Roots, the defense attorney for defendant Dominic Pezzola, only signed onto the case a day before opening statements.

Once finally underway, evidence from the prosecution trickled out at a snail’s pace with testimony from key witnesses often stilted by a steady barrage of objections from the defense about the admissibility of evidence including evidence both parties had already agreed to admit pretrial. Crosstalk and bickering among attorneys or with Judge Kelly has often led the judge to call for lengthy sidebars, sometimes forcing him to excuse jurors from the courtroom as matters are resolved. There have been several days where jurors were not admitted inside the courtroom for more than an hour as infighting over evidence or witness testimony was aired out at the top of a trial day.

As of February 28th, there had been no less than a dozen calls for mistrial by the defense.

So common was this practice that last month, with his tone dripping in incredulity, Judge Kelly remarked to attorneys “it wouldn’t be a day in this trial without a mistrial motion.”

Two former Proud Boys who pled guilty and agreed to cooperate with the government, Jeremy Bertino and Matthew Greene, had already testified long before Agent Miller took the stand this week and the classification issue exploded.

They, and in particular, Bertino, were considered star witnesses for the prosecution and it is very likely that their testimony failed to leave the defendants altogether unscathed in the eyes of the jury.

Bertino said after Trump namedropped Proud Boys at the 2020 presidential debates and told them to ‘stand back and stand by,’ the extremist group’s recruitment efforts surged. The Proud Boys and a new world of prospective members were whipped into a frenzy, he said. Proud Boys were regularly hanging on Trump’s every word as he launched one failed legal bid after another to declare the 2020 election results fraudulent. Once the U.S. Supreme Court rejected Trump’s forays, desperation among Proud Boys grew, Bertino said and members and leaders alike, including Tarrio, became singularly focused on the necessity of an “all-out revolution.”

What followed was the creation of the group’s Ministry of Self-Defense, a channel, Bertino said, where members would discuss operations for Jan. 6 in code. Prior to that, Greene, who traveled to D.C. on Jan. 5 with Proud Boy William Pepe—Dominic Pezzola traveled with Greene and Pepe too but rode in another vehicle—told jurors that on the eve of the insurrection, he was added to a chat called “Boots on Ground.”

“I was led to believe it was some sort of coordination group for Proud Boys in D.C. for the 6th,” he said.

Greene revealed that he wasn’t privy to specific plans but was instructed to program handheld radios for any Proud Boys who might want them the night before the attack. And when the moment finally arrived and Greene found himself standing before the first barrier that was breached at the Capitol, he told jurors he thought to himself: “Oh shit, this is it.”

“I personally had an abstract feeling that Proud Boys were about to be a part of something,” Greene said before calling the group the “tip of the spear” on Jan. 6.

But, he added, “I never heard specifically what that could be. But as people moved closer to the Capitol, I was in the moment, putting two and two together and saying [to myself] ‘well, here it is,” Greene testified on Jan. 24.

Before Miller testified, Bertino and Greene’s testimony allowed prosecutors to introduce some of the raw and wildly anti-democratic, pro-authoritarian discourse among Proud Boys. Their testimony also exposed evidence of the group’s reliance on frequent communication by way of Telegram, Parler, or teleconference meetings and they helped demonstrate to jurors how Proud Boys were siloed by leadership status or divvied up on a need-to-know basis.

And underpinning all of this was evidence supporting the government’s core legal theory about the Proud Boy defendants and Jan. 6: They didn’t act alone in order to stop the certification by force, they relied not just on themselves but on what the government has dubbed “the tools of the conspiracy.” 

The theory, in sum, suggests the following: to pull off a stop to the certification and potentially keep Donald Trump in the White House despite his defeat, defendants relied not just on individuals who were part of the alleged conspiracy but they would rely on inciting and rallying people unconnected to the organization, too. Bertino and others, chats in evidence have shown, referred to these potential allies as “normies.”

“Normies,” Bertino told jurors, were anyone who supported Trump or considered themselves “right of center” politically. They were “everyday people,” Bertino testified on Feb. 27, who would get behind Proud Boys because they shared the same beliefs about the “stolen” election and the perilous future America faced.

Early in the morning on Jan. 6, in the “New Ministry of Self Defense” chat as Bertino spoke to two Proud Boys, Aaron Wolkind and John Stewart about the day ahead in Washington, Wolkind said he wanted to see “thousands of normies burn that city to ash today.”

Stewart prayed, “God let it happen” before lamenting that “normiecons have no adrenaline control” and were like a “pack of wild dogs.”

Bertino replied: “Fuck it let them loose.”

Charles Donohoe, who would later plead guilty to conspiracy to obstruct an official proceeding and assaulting police, told Wolkind, Stewart, and Bertino right around the same time in that same chat that he was already “hoofing it” to the Washington Monument with a crew of 15. They weren’t wearing their recognizable Proud Boy black and yellow colors, either, Donohoe said.

Tarrio, prosecutors showed jurors, had instructed them not to days before.

Despite the intimate nature of the testimony delivered by Bertino and Greene, it arguably was not until Kenerson elicited Agent Miller’s testimony this week that the full punch of the prosecution’s “tools” theory was delivered.

With Miller as a guide, for two consecutive days, video footage was shown to jurors, often frame by frame or motion by motion, of the tinder keg that Proud Boys tapped on Jan. 6.

Using aerial surveillance footage from the Capitol, Miller used her finger to circle on a screen shared with jurors precisely where Proud Boys positioned themselves on Jan. 6.

The crowd, standing shoulder to shoulder, is on the precipice of making history whether they know it or not. And there, at the very front of the horde of Trump’s supporters, Miller drew nine circles, each representing multiple individuals, including Proud Boys, grouped together. Four of the nine group circles were situated as close as possible to a police barricade line. The others stood just behind them. The groups were evenly spaced and evenly numbered. It was just about 1 p.m. Then-Vice President Mike Pence was still minutes away from making his announcement that he would not decertify slates unilaterally.

Miller, and other witnesses for the government, including Bertino, have testified that Proud Boys never even bothered to listen to Trump’s speech on the morning of the 6th.

They gathered at predetermined meeting points, like at the Washington Monument, and marched down to the Capitol picking up speed and allies—the ‘tools’ they needed for blunt force—as they went.

Miller reviewed video footage in court this week showing Joseph Biggs, for example, pointing a group of Proud Boys including Donohoe, Gilbert Fonticoba, and Eddie Block, away from the area where Trump was speaking at the Ellipse and toward the Capitol.

“Come up over here and then roll through,” Biggs’ is heard saying in one video clip, Miller testified.

Biggs riled up the crowd as he marched on the Capitol, Miller said, chanting “fuck antifa” or “we love Trump” or “1776.”

Miller showed jurors footage too of the moment when Ryan Samsel, who is not a Proud Boy, approached an already keyed-up Biggs and wrapped his arm around him. Biggs didn’t throw Samsel’s arm off. They would speak briefly and within moments, Samsel, Miller said, could be seen removing his jacket as if to fight police. As barriers first begin to fall, Agent Miller testified that she was able to identify defendant Zachary Rehl screaming “Fuck them! Storm the Capitol!”

The agent testified that it wasn’t until Proud Boys showed up at the Peace Monument, located just in front of the Capitol, that the crowd’s tenor had changed. Footage showed they were “relatively peaceful,” until then, Miller testified.

When Nordean arrived at the Peace Monument, he grabbed a bullhorn and told a gathering crowd: “We represent the spirit of 1776.” He promised, “real men are here,” and discussed Constitutional oaths against enemies foreign and domestic. 

Let us remind those who have forgotten what that means,” Nordean said.

In other footage, members like Daniel “Milkshake” Lyons Scott were spotted meeting with Proud Boys at the Monument before later separating and then rejoining each other at police lines.

“Milkshake” was standing alongside key members of the conspiracy like Charles Donohoe, as the men prepared to storm the Capitol. Never far from them, Miller added, were Dominic Pezzola, Matthew Greene, William Pepe, and others. Seconds after the mob began ascending stairs to the Capitol’s interior, Agent Miller said it was Biggs, Fonticoba, and a handful of others, like Shannon Rusch and Trevor McDonald who joined him.

In one clip shown to the jury, as Proud Boys make hand signals affiliated with the white power movement to each other as they lay siege, Christopher Worrell, a Proud Boy with ties to Roger Stone, appears on screen and shouts: “Yeah! Taking the Capitol!”

Nordean, Miller said, had gathered “tools” of the conspiracy like Paul Rae and Arthur Jackman and others as they advanced past barriers or up the Capitol stairs and balustrades toward the interior.

It was Jackman and another member from the marching group, the FBI agent testified, who used turned-over bike rack barriers as makeshift ladders to help scale the walls. Biggs would scale the “ladder” with Fonticoba and Rae.

When the men reached the upper west plaza, where some of the worst violence would occur, Miller testified that it wouldn’t be long before Pezzola was striding into the same location with a stolen police riot shield in tow. Jurors watched footage frame by frame of Pezzola smashing open a window. When one pane wouldn’t break, he tried the one next to it and successfully “unattached” the window from its frame completely, Miller said.

Pezzola was the fifth or sixth person inside after that. He let other rioters stream through first. Minutes later, Biggs, Rae, and Fonticoba would come through a busted door in the same hallway that Pezzola entered. Jurors watched Pezzola stalk that hallway and as Miller testified,  Pezzola would later appear to hold a radio up to his head to talk to someone before taking off down a hallway to the Capitol crypt.

Rehl, meanwhile, she said, had made his way to the upper west terrace and was joined by Rae and others like Isaiah Giddings, Brian Healion, and Freedom Vy. Tarrio wasn’t on Capitol grounds on Jan. 6 but he was attuned to what was happening at the Capitol anyway.

“I’m enjoying the show,” Tarrio wrote on Parler around 2:35 p.m. “Do what must be done. #WeThePeople.”

Three minutes later, as the surge was in full swing, Tarrio would bark on Parler: “Don’t fucking leave” and “Proud of my boys and my country.”

Tarrio and Bertino were texting privately at the same time, Miller said.

When Bertino, flushed with pride, told Tarrio, “Brother, you know we made this happen,” Tarrio responded with two words: “I know.”

When talking to fellow Proud Boy Chris Cannon over text that afternoon, Tarrio agreed when Cannon asked if the Proud Boys were a militia now.

“Yup,” Tarrio wrote.

“Make no mistake, we did this,” he added.

Cannon then sent a short video to Tarrio in the elders-only Skull and Bones chat.  The video featured, among other things, footage from World War II including marching Nazis and victorious Nazis being saluted by Hitler. There were no objections made by the defense when the video was first played for the jury this week. It was also not the first time jurors would see Proud Boys reference Nazis.

During a chat with Biggs and other Proud Boys days before the Capitol attack, as Tarrio discussed how to avoid detection by wearing colors other than their traditional black and yellow garb, the national leader of the fascist organization seemed to outright tickle himself at one point.

“Did I just Goebbels this thing?” Tarrio said, referencing Joseph Goebbels, the Nazi minister of propaganda.

Defense attorneys claimed this week that the impact of the prosecution sharing the video Tarrio received from Cannon was too burdensome to bear. Smith said it was “designed to poison the well” against the defendants and that this case had “nothing to do with marching Nazis and brownshirts.”

Attorneys for all of the defendants insisted the prosecution unfairly included the clip and it should have been something the defense was alerted to in advance. Calls for mistrial by the defense began to billow from every corner but Judge Kelly denied them all.

“Let’s have a rule going forward that if it involves Nazis, you will tell me in advance,” the judge said.

He would agree to strike the video from the record and later instructed jurors that the footage depicting Nazis was not sent by Tarrio or any other defendant in the case.

Proceedings resume on Monday and the prosecution is expected to bring out just a few more witnesses before the defense takes over. It is expected that Tarrio and Biggs will testify on their own behalf.


122 replies
  1. Hope Ratner says:

    I have been reading your updates since the Oath Keepers trial. You are an invaluable resource and a treasure. Succinct, knowledgeable, easy to understand, and totally dedicated to enlightening us all. Thank you, thank you, thank you.

    • Patrick Carty says:

      Who would ever create a master Excel file and then send that master to anyone, let alone the Defense to your Prosecution? Did they send their ATM password too? This is a HUGE blunder by the prosecution, and no I’m not a lawyer but does this not reveal tactics that should not have been revealed? And thank you Brandi and welcome.

      • David F. Snyder says:

        Embarrassing, if nothing else. But it doesn’t sound like it affects this case. They weaponized the mob, that was made clear.

        Looking forward to the report on Monday’s proceedings.

      • Frank Probst says:

        So the FBI’s on in-house software isn’t set up to properly turn over evidence to defendants? Good Lord. This should be a core function of the software!

        (And frankly, Clippy should pop up and say, “Looks like you’re about to destroy evidence. Are you sure that’s a good idea?”)

      • thequickbrownfox says:

        It’s not that difficult to screw up a spreadsheet. I’ve done it myself. When a master is saved, if one isn’t paying attention, it can overwrite a spreadsheet that was the derivative of the master, thus making the derivative the copy of the master. Basically, if the user mistakenly clicks ‘Save As’, the derivative can be the first highlighted option, and it is very easy to accept the default. Then, the master becomes the derivative, and makes a mess.

        [Heads up: please, PLEASE make sure you use the same identity information in the Name/Email/URL fields each time you comment. Your email address contained a typo making you look like a sock puppet account. I’ve corrected it this time but your next erroneous comment may not clear. /~Rayne]

  2. Md Poppa says:

    huge reporting, great write-up.
    Swear tho, if there’s any mistrial ruling on appeal or such whatever…ugh.
    Stupid Excel sheets

    [Welcome back to emptywheel. Please use the same username each time you comment so that community members get to know you. This is your second user name; you’ve previously commented as “Kool Moe.” As we are moving to a new minimum standard to support community security, please choose and use a unique username with a minimum of 8 letters. Thanks. /~Rayne]

  3. Kick the Darkness says:

    I’ve been following the trial via your tweets and Roger Parloff’s tweets but this summary definitely helps clarify the events of the last several days for me. It sounds like the prosecution was effective at showing the PBs had a well designed strategy in place for J6 and executed it skillfully in the moment. It would be interesting to watch the exhibit revealing the placements and movements. The “we did it/we made it happen” comments once they were on the inside make sense in that light. The “it” was not getting into the Capitol per se, it was more that their strategy had been successful.

  4. WilliamOckham says:

    Wait, are you telling me that Ballantine is overseeing a prosecution endangered by an inability to successfully use a Microsoft Office app to cover up for DOJ screwups?

    Because that sounds familiar to me for some reason. Oh, yeah, I remember now…

    Seriously, the DOJ is a big Microsoft customer. Training is available. There’s no excuse for this level of incompetence. Get someone who knows how to use Excel to review the documents you send to the defense. I’m sure there is a 24 year old GS-11 budget analyst somewhere in the federal bureaucracy that could do that.

    Sheesh, this is just embarrassing.

    • Doctor My Eyes says:

      Embarrassing and potentially momentous. We’ll see what the lawyers here say. Fucking DOJ. Fucking FBI. I’ve been wondering how well these, imo, corrupt organizations will be able to withstand corrupt assaults that require a measure of integrity to weather. Not that this one is an integrity issue, per se, but if feels like a first cousin to one. It almost feels like not caring more than incompetence. Do these prosecutors understand the importance of their work? The same question could be asked of the J6C.

      Great overview. Yeoman’s work. Thanks so much for this report.

    • Greg Hunter says:

      I have thought a great deal about Excel handling and whether people of a certain age may have more familiarity with the product than those that came later? I was around when all these exports from databases into Excel were being developed so I may have more knowledge than someone that was exposed to a finished process?

      FBI has lots of technology but I bet it is pretty rare to export text messages from an agent and then format it into something to give to the defense? In addition, each one of these systems was probably designed by a different contractor that used different export procedures to generate a spreadsheet. For instance due to the way Microsoft sets up export/import security ours was a two step process to get to Excel, one to MS Access and then Excel. In addition Excel had to be stripped of security to allow this process and I would suspect getting these permissions is harder in the FBI than the agencies I work with on a regular basis. Due to security concerns it would seem one cannot just hand it off to a GS-11, which means the agent was the one doing the formatting/securing it? Did the agent know how to lock it? Was there a discussion about deleting all the non-pertinent rows?

      However, the issue does not appear to have compromised what sounds like a solid case against the Proud Boys as well as how they did it. I am sure Tucker will reconstruct the story for his Fox audience.

      Great reporting, thanks.

    • Peterr says:

      These days, training on Word and Excel is basic middle school stuff. Granted, it probably wasn’t when these lawyers were in middle school, but it certainly says something about how simple it is to do this right.

      Perhaps a middle school teacher could do a training session for the DOJ over the summer. Or, for the lawyers in this case, during Spring Break.

      • pdaly says:

        The part that I don’t understand yet is whether the prosecution is working with an identical copy of the Excel spreadsheet they gave to the defense lawyers?

        If yes, then why was it not easy for the prosecutors to ‘click a few buttons’ on their copy and discover the spill before the defense surprised them with it in open court? Or was there a properly edited Excel spreadsheet file made but that proper file was not the one that the defense received?

        • thequickbrownfox says:

          That’s my guess. The defense received the original master and not the derivative. Possibly because the originator was confused as to which spreadsheet was which. Been there, done that.

  5. DavreC2022 says:

    Good stuff Brandi. One quibble, ease avoid double negatives as in

    “They, and in particular, Bertino, were considered star witnesses for the prosecution and it is very likely that their testimony failed to leave the defendants altogether unscathed in the eyes of the jury.”

    “Failed to leave defendants unscathed” = did some damage to defendants.

    IDK what to think about the classified spillage. Definitely a DoJ / FBI mistake at least.

    [Moderator’s Note: Please use the same username each time you comment so that community members get to know you. This is your second user name; you’ve likely committed a typo inserting an “r” in the username under which you’ve previously commented. Thanks. /~Rayne]

    • Rayne says:

      Thanks, but you might want to do some editing on your own comments before submission, [pl]ease.

      Welcome back to emptywheel.

  6. GSH says:

    So Pattis and Miller cancel each other-out for inadvertently dumping each other’s live internal communications grenades?

    • Ginevra diBenci says:

      I don’t think so. Miller is an FBI agent. Pattis is a big-time defense lawyer who screwed his most notorious client in very public fashion with a huge mistake. If anything, Pattis is trying to use DOJ’s error to cancel out the one he made with the Alex Jones trial. It won’t work. But the main issue is whether/how much it damages the PB prosecution. Pattis cares only about himself. The rest of us care deeply what happens with these terrorists.

      Brandi Buchman, thank you for rendering this convoluted legal situation legible to those of us who can’t watch, but care very much about what is going on. This is great work!

      • DaveC2022 says:

        Its not clear to me how much of this is on Miller vs the whole of DoJ’s litigation support. Its possible she was correctly following directions, and some where down the line the lit support crew mistakenly captured more than they realized. Personally, I’ve had unexpected outcomes from working with hidden rows in Excel.

        • bmaz says:

          Think that may well be right. Hard to imagine front line trial attorneys working on Excel sheets for disclosure. Staff would do that, and the trial attys might not even review it before disclosure. Still, they “are” responsible for the overall work product presented.

  7. Rugger_9 says:

    So, Jocelyn Ballantine was also the one who made a hash of the Flynn case by submitting altered documents as genuine, to the court and Kraken Powell no less. If I needed to try and corner the tinfoil market, I’d wonder if this is an effort to tank the case like the Zimmerman case was tanked in FL (not the same circumstances, but maybe the same result) by the DA there IIRC from Orange County or Seminole County. It also makes me wonder why Garland allowed a known SNAFU artist to oversee such an important case. If it were me I’d bring in someone from WA or OR with knowledge about the militias and who doesn’t have Flynn baggage.

    To quote Casey Stengel regarding the ’62 Mets: “Can’t anyone play this game?”

    • Unabogie says:

      Not to get too far off topic, but I was absolutely appalled by the way the prosecution botched the Zimmerman case. I can’t say it was deliberate, but if it wasn’t it was a monumentally incompetent job.

      First off, it was trivial for me to construct a timeline based on 911 calls to demonstrate that Zimmerman lied about being attacked. Not only the location details (he was wrestling with Trayvon 75 feet away from the location he claimed he was knocked to the ground) but also that he was wandering around there for 5 minutes and could not have been simply heading back to his truck after looking for an address.

      And the prosecutor put his entire interview recording up instead of forcing Zimmerman to testify.

      And the cops involved actually claimed this liar appeared truthful to them? It was a travesty.

      • bmaz says:

        This is bullshit. The prosecution did not “botch” the Zimmerman trial. You are stating as facts things that did not comport with the evidence adduced at trial (and, yes, I saw most of the trial and read the daily transcripts from the court reporter). Your portrayal is wrong and based on bullshit not in the actual trial record. It was a more than proper self defense case, and one that would have likely resulted in an acquittal in any state, not just Florida. The prosecution could not “force Zimmerman to testify”. If the prosecution had not admitted the interview up (which was tactically smart so they looked above board), the defense would have on cross.

        You seem fixated on a bunch of garbage as to the Zimmerman trial. He was acquitted, and quite properly so. Here is a bit of an explainer from 2013 for your edification.

        • Unabogie says:

          No, I was not spouting bullshit, and I followed the evidence prior to the trial, watched the trial, and pored over the evidence in depth after the acquittal. You didn’t address any of my points about the simple, demonstrable fact that the timeline proves that Zimmerman wandered around for five minutes in contradiction to his story to the detectives. They never once even brought this up with a witness. A witness who saw Martin being the “aggressor” was themselves caught lying under oath but the DA was too stupid to proved that she was following Donald Trump Jr. and a bunch of other racists on Twitter, and worst of all, he put Zimmerman’s explanation into evidence with no pushback from anyone. He failed to present any sort of convincing argument to tie together the evidence he presented. I don’t care if you want to lord your status as a lawyer or founder of this site over me. That’s just argument from authority. You’re just wrong about this. They blew it.

          • bmaz says:

            Uh, no, I am not going to waste one more minute on “addressing your points”. I think you are full of it, your “timeline” proves nothing, and your assertion that the prosecution threw the case is ludicrous. Don’t waste any more space on this great Brandi Buchman thread with your Zimmerman nonsense.

            • Unabogie says:

              I guess you and the DA both agree then that establishing that the killer of an unarmed kid lied his ass off isn’t relevant. But to be clear here, you did not have to reply to my original reply to Rugger_9 and call me a bullshitter. But you did, and so I replied back. Then you misrepresented my comment about them “throwing” the case. I said they botched the case, (and it Rugger_9 who used the phrase “tanked”, not me.) I said that I *couldn’t* say it was tanked, but I could say it was an incompetent job, and then I listed several reasons why I think that. I think that was a winnable case, and I remain 100% convinced that Zimmerman was guilty of murder. And as I said up above, I didn’t want to derail this thread, but someone brought up that case and I’m still sore about it. That family deserved justice and they didn’t get it.

              [End the derailment of this topic here. This is ziggurating out too far and off topic. /~Rayne]

              • [email protected] says:

                not to try to mediate an important discussion about Zimmerman, but I think it’d be fair to say that Marion Hammer, and her influence machine, could be considered the factual cause of Zimmerman’s act itself and of his acquital as well. Florida law and criminal procedure rules are what determined Zimmerman’s fate, as long as his defense attorney could display a superior understanding of both, which he did.

                Look into the writer of those laws and influencer of procedure. It’s a fascinating tale of the lobbying lockhold Hammer had on that state capital for more than 3 decades. And likely still does, even after her recent retirement.

                • bmaz says:

                  Hammer and stand your ground had nothing to do with the Zimmerman verdict. O’Mara’s self defense argument was premised on traditional self defense law available in pretty much every state, and always has been.

                  Now, PLEASE, let’s not pollute this post thread with this anymore.

    • missinggeorgecarlin says:

      One of the reasons George Zimmerman was treated with white gloves by the police and the justice system is that his father was a local Judge from (I believe) Orange Co. (aka Orlando).

      • Shadowalker says:

        His father was a retired magistrate in Fairfax, Virginia (2002). He was treated with white gloves because he gave neither the police nor authorities a reason to treat him otherwise. If Trayvon had returned to his aunt’s apartment after he noticed he was followed (perhaps even calling 911), he would most likely still be alive today.

        • bmaz says:

          PLEASE. Do NOT continue Zimmerman stuff on this thread. This ask has been made before. Further Zimmerman comments on this on this thread will get removed. You were not wrong with your info, but let’s have just a modicum of respect for Ms. Buchman please.

  8. Fraud Guy says:

    Who hasn’t set a filter to look for data on an Excel file and then forgot to actually remove the data they had filtered out, or copied rows, forgetting to use the command to only copy visible rows, rather than include rows that were hidden by a filter.

    Having literally spent hours in Excel hell the past few weeks categorizing data, I can see either of the above as likely culprits.

      • theartistvvv says:

        FWIW, I render every spreadsheet into *.pdf and present that way.

        Cut and paste is not so difficult for the recipient when it’s only ~ 25 entries in question, as here.

        Something larger and I still make ’em ask.

        Caveat: I am primarily in state court and there may be a Fed rule that makes my approach incorrect.

  9. harpie says:

    Judge Kelly agreed, orally issued the order, and left the evidence in the defense’s hands. The matter will be picked up on Monday.

    Roger Parloff linked to an UPDATE yesterday afternoon [I added the numbers]:

    3:25 PM · Mar 10, 2023

    Update on spreadsheet-gate in Proud Boys case: Govt has provided defense
    1] a replacement spreadsheet with “classified & sensitive materials removed” &
    2] “context” for 5 messages def Nordean’s counsel considered suspicious.
    3] Will provide additional production later today. … 1/2 [screenshot]

    … The case seems on track to resume Monday. Full govt filing here: > https://www.documentcloud.org/documents/23702730-685-usa-mtc-deadline 2/2

    I don’t know how to look for the promised “additional production later today”, and don’t know if that happened.

    • harpie says:

      […] On March 10, 2023, at approximately 1:45 p.m., the government reproduced to the defense the original messages it produced, with any classified or sensitive materials removed, along with a second document that supplies the requested context for the five areas of messages identified by Nordean, which contained only messages from senders other than Agent Miller in the original production. Later today, the government will provide revised Jencks production, culled from the original messages provided to Agent Miller by FBI Headquarters.

  10. harpie says:

    Brandi’s and Parloff’s THREADS at the beginning of SMITH’s cross of Miller:

    https://twitter.com/Brandi_Buchman/status/1633576206841921543 4:11 PM · Mar 8, 2023

    https://twitter.com/rparloff/status/1633574809924689922 4:05 PM · Mar 8, 2023

    Defense has had this spreadsheet since late November / early December, and [we’re supposed to believe that] they have “extremely recently” [] “discovered” these “hidden rows” JUST before they need to cross examine Miller [after her devastating testimony], and they don’t do the NORMAL thing and ask the government for the “hidden” material they think they’re entitled to, but INSTEAD begin to air it in open Court before the jury.

    Do I have that right?

    • harpie says:

      This is how Parloff described it the next day:

      10:23 AM · Mar 9, 2023

      This problem sprang into view, if I haven’t been clear, when the govt provided the defense with an Excel-style spreadsheet of Lync (Skype-like) messages FBI agent Miller had had with at least one other FBI agent, but maybe many others. Shortly before her cross … /30

      some paralegal or associate in Smith’s office stumbled upon an inadvertent combination of commands that caused the document to expand to reveal another 1,000 or so lines of messages. Some of those, Smith says, are material “relating to the subject matter of [Miller’s] …” /31 testimony and, therefore, should have been, he says, turned over.

      • John Paul Jones says:

        I’ve been following via Roger Parloff and Brandi Buchman, and that notation in Parloff’s feed (some combination of keystrokes; how many combinations were tried?) really stuck out for me too. My instant (speculative) thought was pretty much as yours above, that defense discovered this some time ago, knew it was likely not permissible “evidence” to impeach the witness, but were determined to get it in front of the jury anyway because they had to find a way to knock down Miller’s testimony. One further speculation: they will bring it up in their closing summations, if only to try and force the government to deal with it in their summations. My impression of the defense so far is that all of them have been just throwing anything they can think of at the wall to see if it’ll stick.

      • Alan Charbonneau says:

        “…inadvertent combination of commands that caused the document to expand to reveal another 1,000 or so lines of messages…”

        Yeah, the combination of commands is to select the area, hit right-click and select “Unhide”. Or, you can go to the “Cells” group, click “Format” (on the “Home” tab), then choose the “Visibility” section and select “Unhide Rows” from the list.

        How in the world can that be inadvertent? I worked with Excel for most of my 40-year career and never accidentally unhid rows.

        • bmaz says:

          Yeah? How many lawyers do you think actually know or think like that? Multiple times every day commenters come on here and proclaim “INAL”.

          Well most trial lawyers are not tech/Excel geeks either. The discussion on this issue seems irretrievably bifurcated between tech people and actual lawyers. I am here to tell you, this stuff can easily happen. It very often does, but usually much more discreetly. I wonder if there is an actor in this play with a motive and commonality in play?

          • timbozone says:

            lol. Occam called, bmaz. Said he wants his Razor back…

            I mean, how close is the shave on this speculation? 20% chance it’s a major conspiratorial twist? 10% chance? 50%? And let’s not even start speculating on who and why might have intentionally wanted to drop this hidden data into the trial, right?

            But back to being more on topic. While the revelation of this spreadsheet’s apparent hidden data being in evidence is shocking to say the least, we still don’t know what it contains in any substantial way, nor do we even know if the data in it is admissibly relevant directly to this case. I mean, Judge Kelly is trying to form an opinion on it one way or another, obviously, although what help he is getting from either side in the trial now is seemingly akin to a shitstorm sideshow; admissibility, impeachment, evidence tampering, all loom like a potent bowl of spumoni on the Judge’s plate! (“I dunno…kinda trying to stay on a steady diet here…” seems to be his initial reaction. “Release the spoons!” chants the defense. “Well, we can’t say whether or not this is your spumoni at all, Judge. But we’re working on it…er, much like we were yesterday?” ventures the prosecution.) Hopefully, Monday will bring more clarity on which direction this crazy revelation of “hidden evidence!” is taking with regard to the actual trial.

          • theGeoguy says:

            I had the same thought about your last sentence ” I wonder if there is an actor in this play with a motive and commonality in play?” I’m no lawyer, just a lowly dirt engineer but I am with theartistvvv above on March 11, 2023 at 4:19 pm. I produce documents that might be as simple as documenting demolition and restoration of dead rust belt factory sites, or defending our firm against large claims for all sorts of things. All my work is converted to *.pdf, then run through a filter to strip away all previous versions. What they see is all they get.

            • bmaz says:

              Right. I won’t even send a Word doc file, much less an Excel one, to anybody. Every document probably came from some previous doc I used as a template. Everything gets put into a PDF and printed. That way there is no unwanted bleeding. Been that way for me since I had to shift from the (at least for lawyers) far superior WordPerfect to Microsoft Word. Make it a PDF and print the thing!

          • Alan Charbonneau says:

            I stand corrected. It dawned on me that formatting a spreadsheet by selecting all rows and adjusting the height unhides rows (at least in older editions of Excel).

            • bmaz says:

              Heh, I have no clue. But doubt the actual front line DOJ attys do either, though they may arguably be responsible for it.

    • harpie says:

      [There’s a fuller comment in moderation, but for now,
      this is how Parloff described that “discovery” the next day]:

      […] some paralegal or associate in Smith’s office stumbled upon an inadvertent combination of commands that caused the document to expand to reveal another 1,000 or so lines of messages. […]

      • Sue 'em Queequeg says:

        Inadvertently “stumbled upon” like Fancy Bear inadvertently stumbled upon the DNC emails?

    • harpie says:

      KELLY: [via Buchman] so you want to ask about Jenks stmts you believe you’re entitled to and no matter what, if Jencks stmts weren’t produced, no matter if not in scope of testimony, they must be struck?

      SMITH: Yes, we think scope is sep. question.

      KELLY: [via Parloff] 3500 is a discovery tool. if you want the discovery, you could go to govt and ask for it.
      [via Buchman] The natural thing to do – if you wanted the discovery, you could have easily… I’m trying to get at what you’re entitled to and what you want.
      If you wanted the extra msgs, you could have just gone to the govt and said give them to us.

      KELLY: [via Buchman] Kelly starts to ask Smith to tee up a motion but now Smith raises issue with impeachment questions posed for Miller

      SMITH: [via Parloff] separate & apart from what we’re entitled to, I also want to use this for impeachment. she said she provided all messages and she didn’t.

      KELLY: [via Bachman] In other words, here’s a Link msg that’s a subject related to subject of your testimony…

      SMITH: Miller could respond, ‘that’s not related. I don’t think Aaron of Bloody east msgs are related to my testimony…’

      < KELLY says in that case, its not related to her testimony and this could stir up issues with bringing evidence out of scope and ringing a bell that can’t be unrung

      ^^^^ THIS is probably precisely what they want. But, in the mean time, they’ve already started the conspiracy theory gears churning.

      Brandi linked this in one of the threads:

      Nordean’s Notice of Argument in Support of Impeachment of Witness With Hidden Jencks-Related Communications https://www.documentcloud.org/documents/23699514-smith-motion-to-impeach-hidden-communications [Filed 3/9/23]

    • harpie says:

      Alan Feuer has a long thread about this, here:
      12:12 PM · Mar 12, 2023

      And Marcy responds:
      12:38 PM · Mar 12, 2023

      I’m awaiting the written filings from the PB lawyers (bc one of them has a habit of saying rank bullshit on background to journalists that, when written up as a filing).

      BUT, there’s something really funny about the fact that Proud Boys all of a sudden discovered these hidden lines of a spread sheet.

      The “discovery” of it came shortly after PBs claimed they have never checked a link in one of their Telegram chats that likedn the PBs to Nazis.

      • harpie says:

        The document:
        12:58 PM · Mar 12, 2023

        Govt’s new filing:

        And CapitolHunters responds:
        3:02 PM · Mar 12, 2023

        Seems an unwise move by Nordean’s lawyers to try to center their cross-examination around the agent’s personal opinions on whether the Proud Boys actions were in fact a conspiracy. DOJ seems to pretty clearly say here: “bring it on, buddy”. [screenshot pg.6]

        • harpie says:

          From the screenshot [I italicized the part CH highlighted]:

          The use to which Nordean seeks to put these messages has been explicitly forbidden by Moore, for reasons the Court articulated during Agent Camiliere’s testimony. For the record, Agent Miller’s response was “No we can. We DEF can now,” which the government will elicit and invite her to explain on redirect if Nordean is permitted to stray into this area. But it should not come to that, because agents’ opinions have no place before the jury.

    • rip no longer says:

      The first thing I do when receiving an Excel workbook (or many other document types) is look at the metadata about the document. Who created it, when was it modified/printed, etc. Any smart law firm (or gov’t agency) would remove any of this information that isn’t useful to the function.

      The second thing I do with workbooks (Microsoft or others) is look for hidden sheets and hidden rows/columns within sheets. It’s amazing how many come to me with people negligently forgetting to get rid of information they don’t want visible.

      This reminds me of the old days in word-processing where some half-witted individuals thought that changing the color of the font to match the background would make the text “hidden”.

      • bmaz says:

        Lol, you think trial attorneys, DOJ or otherwise, do that? Seriously? What is a “workbook” even? There is staff for that, and sometimes they screw up.

        • rip no longer says:

          Yes, it should be for staff to check for both incoming and outgoing “meta data”. I don’t expect a professional lawyer to know how to look at the “File | Info” or “Unhide” menu items.

  11. !?FTWlol says:

    “It is expected that Tarrio and Biggs will testify on their own behalf.”
    Will they wear yellow & black, or show up in Goebbels mode? Either way, I am looking forward to their testimony under cross.

    • Fancy Chicken says:

      I confess I had not been reading your reporting before this Brandi, and boy am I sorry for that.

      Thanks for a first rate write-up of the past week, which included very helpful tie-ins to the actual events of J6.

      Really look forward to your next report and hope you are feeling welcome and appreciated here at Empty Wheel.

  12. Peterr says:

    A lot of this process sounds familiar to me — not because of the PBs specifically or J6 generally, but because of the dynamics between the parties, the prosecution, the judge, and the jury.

    I once served on a jury in a case with four defendants who were accused of being part of a five person group that carried out an assault. Each had his own lawyer, so that meant there were five people who might object to anything (4+the prosecutor), and each did a fair amount of objecting. Some fast ones were handled as sidebar conversations with the judge, but if it was more than a couple of sentences, the judge would send us out. It’s hard to whisper loud enough for five lawyers crowded around the judge behind the bench to hear each other while still keeping it quiet enough to keep us jurors from listening in. Similarly, while we jurors had to report first thing in the morning, it was a rare morning where we jurors were immediately brought into the courtroom, for what I imagine was the same reason: “Let’s hash as much as we can out before we bring the jury in, so we don’t have them running back and forth to the jury room every 10 minutes.” This didn’t eliminate the need to excuse us and bring us back altogether, but it probably helped. Sometimes, depending on the objection or ruling, we would be told what it was about — “the jury will disregard” something that was said before we left — but quite often things would simply pick up from where they left off (perhaps with the last question repeated in a slightly different way.).

    Another parallel for me here is how people NOT in the courtroom influences whether the jury was allowed to be present or not. We were never told why the fifth person involved in the alleged assault wasn’t part of the trial, but our speculation was that he had cooperated in some way and pleaded out. Every so often, however, it appeared to me that one or more defense lawyers objected because they wanted something about #5 to be brought to the jury. I say “appeared” because the lawyers would always object and then ask to approach the bench before voicing the specifics of their objection, and on several occasions this would cause the judge to send us out of the room. Given the time to think, and the specific of what the witness on the stand was talking about, my hunch is that #5 was somehow connected to the objection discussion. When we returned to the courtroom, we would never be told anything about the objection, which only reinforced my sense that it was related to He Who Shall Not Be Named.

    A third parallel is the length of the trial from the jury’s POV. If I recall properly, our trial lasted six weeks (M-Th for the jury, and an occasional day off entirely because of someone’s conflict/illness/etc.). In a long case like that, it can create stress for the jury being asked to serve that long, and the judge was very aware of that in trying to keep things moving along and not getting bogged down. More than once, he encouraged the four defense attorneys to NOT ask something that a prior defense attorney had already asked. Three of the four lawyers quickly understood that it didn’t put the jury in a good frame of mind if they unnecessarily lengthened the whole process by ignoring the judge’s injunction, but it took a more than a couple of prosecution objections (“Asked and answered, your Honor”) upheld by the judge for lawyer #4 to figure out he was hurting his own case.

    All this is has led me to wonder about how the jury is handling all this. As long as the jury trusts that no one is trying to drag this out, they are probably fine with being sent out a lot, but if they are getting frustrated with the lawyers, that will add another layer of complexity to all of this. From the jury’s POV, we are only a week into the actual presentation of the case to the jury, but if things are getting bad now, this does not bode well for them as things continue to unfold.

    Brandi, are you seeing any kind of reactions from the jurors at being sent out time and time again (eyerolls, shrugs, etc.)?

  13. Savage Librarian says:

    Brandi, I greatly appreciate the detailed, thorough and logical progression of the facts of the case that you present. It is so compelling that it actually elicits a visual representation for my mind to grasp. Kudos on an exceptionally well done job!

    I do have a question I hope bmaz might answer. When the plaintiffs’ attorney in the Sandy Hook/Alex Jones trial was sent inappropriate material from the Pattis defense team, the plaintiffs’ attorney was required to notify Pattis, and did. But the defense did not respond in a timely manner.

    So, my question is, doesn’t a similar requirement apply in the reverse? Was the Proud Boy defense team obligated to inform prosecutors of the Excel/Lync material they accidentally received in advance of the trial? Should they have informed the prosecution before the trial began?

    • timbozone says:

      You’d think, right? Are they maintaining that they just discovered these secret hidden cells in the 72 hrs before Agent Miller finished prosecution’s testimony? This is a federal trial too—are the rules for disclosure of inadvertent information different in Federal trials? Also, this may include disclosure of classified USG information; that makes this a completely different animal than Pattis’ screw up in the Jones trial…

  14. Frank Probst says:

    What is the defense usually supposed to do in the event that they receive irrelevant evidence from the prosecutors?

    • theartistvvv says:

      In answer to yours and SL’s above, timely advise the prosecution of receipt of apparently mistakenly provided evidence and await a clawback request or other response (*ex*., waiver of objection, or acknowledgement of intended production incorporating same). *Timely* might be an issue here re the defense(s)’ late notice (and only through attempted trial use), and against the said defense team(s).

      Mr. Pattis learned in the Jones case what happens if you fail to respond to such a notification.

      However, I do note that you describe “*irrelevant* evidence”, which designation of *irrelevant* must await argument and ruling, if it is to be raised. The recipient notice obligation exists either way.

      • theartistvvv says:

        Interesting thought.

        I have been the unintended recipient a few times, just notified the sender, never the court.

        Before the widespread use of emailed doc’s, I called and then either mailed the return or they picked it up, with a cover letter from me. Happened maybe 2-3 times in 30+ years.

        I’ve only had it happen once or twice via email, and my responding emails document all.

        I’ve never made the mistake … that I know of.

        My fave was when the defense sent me their case eval reports to the carrier – that has happened more than once.

        • bmaz says:

          I think…think…there is a difference between civil and criminal on this. Not positive why, Brady and Jencks are involved I guess, but the dynamics are just different as to misplaced information.

  15. [email protected] says:

    am i the only one struck by the profoundness that Pattis is right in the middle of (one in which he caused and his malpractice allowed to continue) the two most high-profile, and HUGE in size, trial / legal disclosure mistakes in recent history? Granted, one civil and one criminal, but what are the odds?

    And Brandy, I don’t know if you work on a per diem or by-the-piece payment structure, but it might be time to start working on a book (podcast?) if not already in the works. The judge will not be able to ignore a motion for mistrial made by PROSECUTORS, which I think could be one possibility in this mess. A new trial would not start right away, so those relying on dough resulting from this gig could be caught off guard if it were just shut down in one day. It’s a huge mental and emotional loss for all the actors, both involved in, or just covering the trial too…

    I can’t say if it’s likely, but it’s not unprecedented. Perhaps Karma got confused after the Pattis disclosure error and it forgot it was supposed to bend the arc toward justice…(to borrow the turn of phrase MLK made famous….).

    apologies if it offends for me to equate Karma with the ‘moral universe,’ or use either term in referring to the blunders or the lawyer Pattis. just what came to mind….

    • bmaz says:

      The prosecutors will never ask for a mistrial. If they do, and it is granted, the case is over permanently with no possibility of retrial because jeopardy has fully attached. Now the defense could seek one, but the prosecution no.

  16. harpie says:

    A couple of additions to Proud Boys “NO COLORS” rule TL:

    11/6/20 11:05 AM BERTINO [Johnny Blackbeard] [Official Presidents Chat]: If you live in one of the swing states in which efforts are underway to steal the election from President Trump, do your part by calling your state legislature to demand that it selects a slate of Trump-loyal electors. [revolver link] [PA legislature link] [1 empty message]

    < 11:08 AM TARRIO: Not sit on telegram. // In those swing states get to the election offices. No colors…but bring people.

    [^^^ This is now the first mention by TARRIO of the change, 2 days earlier than before.]

    Relevant INFO for 11/7/20 and 11/8/20 at THIS COMMENT:
    https://www.emptywheel.net/2023/02/09/dojs-silent-that-enrique-tarrio-is-a-friend-of-stone/#comment-981010 []

    12/28/20 TARRIO [MOSD-PG] that the “DC trip” would consist of “two groups” – – the MOSD and everyone else – – and that no one should be in colors.

    1/5/21 [from 8:27 PM to 12:03 AM on 1/6/21] Series of planning / organizing posts on NEW Channels and Chats [NMOSD-LG, NMOSD-MG and BOG] ALL of them say NO COLORS.
    This is WOLKIND at 9:09 PM on New Ministry of Self Defense, Leaders Group [NMOSD-LG]:

    “Stand by for the shared baofeng channel and shared zello channel, no Colors, be decentralized and use good judgement until further orders.” [] “Rufio [NORDEAN] is in charge, cops are the primary threat, don’t get caught by them or BLM, don’t get drunk until off the street.” [He then provided a specific radio frequency of 477.985].

    And, here is WOLKIND on J6 [I think approx. 2:00 PM]
    1/6/21 [TIME?] WOLKIND: “The decision to not wear colors is paying off. They think there are way more of us than there really is.”

    …In this quote, “they” is law enforcement [and NOT “Antifa”]

    • harpie says:

      The day before the new TARRIO “no colors” direction:


      – STONE coordinates a response during a rapid-fire succession of calls.

      […] 4] tells them to monitor a group chat on the app Signal titled “F.O.S.” — friends of Stone. [TARRIO of the Proud Boys was among the group’s members, a later shot of Stone’s phone showed].

      5] draws up a Stop the Steal action plan [As protesters were mobilized, the plan said, state lawmakers would be lobbied to reject official results.] […]

      Also see, the end of December in that TL, it may relate to TARRIO’s 12/28/20 “no colors” pronouncement.

      • harpie says:

        At 4], “them” is his aides.

        3] directs aides to recruit retired military and law enforcement officials for Stop the Steal.

  17. Joe Public says:

    I’ve been following this excellent coverage, however I’m not sure what the defense are arguing, and what the two defendants might say in their testimony?

    Also, while it seems this disclosure isn’t related to the trial, do the repeated delays make it harder for the prosecution to secure a guilty verdict?

  18. Konny_2022 says:

    DOJ has filed a 10-page opposition to Pezzola’s motion for dismissal and/or mistrial as Politico reported Sunday night (https://web.archive.org/web/20230313003143/https://www.politico.com/news/2023/03/12/qanon-shaman-jacob-chansley-footage-00086703). Politico has also a working link to the filing: https://storage.courtlistener.com/recap/gov.uscourts.dcd.241009/gov.uscourts.dcd.241009.689.0.pdf.

    Unfortunately, CourtListener (my preferred source four federal court filings) is a little confusing in this case. It entertains several sites where the respective documents are collected. Here are links where the March 12 filings can be found with a working download option (and not just a referral to the costly PACER):
    https://www.courtlistener.com/docket/63142549/united-states-v-nordean/ for ECF 686, 687 (1 attachment), 689 (= the filing mentioned above) and 690 (2 attachments);
    https://www.courtlistener.com/docket/59704048/united-states-v-nordean/ for ECF 688;
    https://www.courtlistener.com/docket/59704100/united-states-v-nordean/ for ECF 691.

    I’m curious how the trial will continue.

    • bmaz says:

      Hard to understand how the trial would not continue, despite this relentless garbage by the defense.

      • harpie says:

        [Thank you Konny!]

        Relentless [example # ???]:

        […] [p3/10] While discovery in this case is voluminous, the government has provided defense counsel with the necessary tools to readily identify relevant cameras within the CCTV to determine whether footage was produced or not. Accordingly, the volume of discovery does not excuse defense counsel from making reasonable efforts to ascertain whether an item has been produced before making representations about what was and was not produced, let alone before filing inaccurate and inflammatory allegations of discovery failures. […]

        filing inaccurate and inflammatory allegations of discovery failures
        IS their METHOD and their GOAL.

        • harpie says:

          What PR and conspiracy theory use has already been made
          of these inaccurate and inflammatory allegations?

        • harpie says:

          Isn’t this basically what GIULIANI/POWELL/ELLIS et al
          were doing between the election and J6?

          …and STONE / BANNON / FLYNN, too? [even before 11/3/20]

          …and GINNI /CLETA et al?

      • harpie says:

        Counsel for PEZZOLA is Roger ROOTS.

        [p6/10] Counsel for Pezzola assert that the government has “steadfastly refused to identify in what way any of these defendants directly caused the recess of the Joint Session[.]”; ECF 679 at *3. It is hard to conceive of a defendant better suited to assess his personal contribution to the obstruction of the joint session than Dominic Pezzola. […]


        From the post:

        Roger Roots, the defense attorney for defendant Dominic Pezzola, only signed onto the case a day before opening statements.

      • harpie says:

        ^^^ INTERESTING about the signatures.

        [It took me this long to type out that title and post it]:

        Filed 3/12/23
        Defendant Pezzola’s Renewed Demand for Dismissal and Evidentiary Hearing

        And Memorandum Regarding the Government’s Numerous Offenses and Violations of Due Process and The Sixth Amendment,

        And the Scope of Cross-Examination of Special Agent Miller
        *Request for Appointment of a Special Master and/or Special Counsel.1

        • Konny_2022 says:

          Multiline headings seem to bei Root’s specialty. The 3/9/23 motion (signed by still both Roots and Metcalf, ESF 679) read:

          “Defendant Pezzola’s Motion for Dismissal with Prejudice; Or, In the Alternative, Mistrial Regarding Recent Revalations on Tucker Carlson and Associated Testimony and the Discovery of Massive Brady and Jencks Violations and Violations of Due Process and the Sixth Amendment.

          With Included Memorandum of Law.”

      • harpie says:

        Brandi at 10:15 AM · Mar 13, 2023

        Kelly now addresses motion from Roger Roots to dismiss trial.
        Kelly asks when govt can respond and he tells Roots outright: I’m skeptical any of the relief you’ve requested is appropriate.

        AUSA Kenerson says govt can respond to Roots motion to dismiss by tomorrow morning as well. And that is now tabled too.

      • harpie says:

        Brandi at 10:37 AM · Mar 13, 2023

        Kelly says the suggestion by Dominic Pezzola (Via Roger Roots) that Agent nicole Miller should be Mirandized because she broke the law is speculation that has no place in this courtroom.

    • bmaz says:

      Spring cherry blossoms in DC are seriously spectacular. Also, the defense antics are performative bullshit for the record. No way Kelly is going for that.

    • harpie says:

      ALL of the defense lawyers are arguing with the Judge
      about EACH of his decisions relating to this stuff
      that he JUST finished relaying to them.

      Brandi: Smith is now, in effect, orally disagreeing with all of Kelly’s rulings this am. On destruction of evidence bit – even if it doesn’t involve evidence in this case, it goes to credibility.

      • harpie says:

        Parloff: https://twitter.com/rparloff/status/1635292393200312321
        10:51 AM

        Carmen Hernandez (Rehl): the Court is just accepting the govt’s account about the destruction of evidence but we should be allowed to question her about it … /49

        Judge: I understand your argument. In context here, it’s not this agent’s statement & there’s no indication it has anything to do with this case. … No connection to this case and no connection to this agent.
        Hernandez still arguing.

  19. harpie says:

    DEFENSE has been insinuating/alleging that MILLER lied to witness BERTINO about TARRIO creating the 1776 “Winter Palace” doc:

    This is how cross goes:
    11:35 AM · Mar 13, 2023

    As Bertino (who has already pleaded guilty to seditious conspiracy) looked at 1776 Returns doc, she informed Berinto that Tarrio created it,
    Smith says.: Why?
    Miller: The information was recovered from Tarrio’s phone which FBI just got into prior to [3/XX/22] interview with Bertino. Tarrio was sent that document from Erika Flores and then he Googles ‘winter palace’ and he wouldn’t have known unless you opened the doc.

    Miller: He gets it on 12/30 and googles ‘winter palace’ on 1/2 or 1/4, then there’s a text to Bertino saying “winter palace” which indicated to me that Bertino knew abobut the doc and I believed Tarrio had created it or had some role in creating it and i still believe that

    Miller: I think he had a role in creating the document. There were different variations of the document, each had different edits, so I think Mr. Tarrio had some involvement in that.

    Smith. That’s what you think. Can you tell us what the facts are?
    Miller says there are texts between Tarrio and Erika where she’s talking about creating something & it indicates that she is planning on working something and wants assistance with it.

    The document is sent to him, Miller thinks, on 12/30 and he googles ‘winter palace’ shortly thereafter…

    Miller continues her testimony and explains that there were multiple versions and then later, Tarrio texts Bertino using ‘winter palace’ in text and…

    Agent Miller testifies that on Tarrio’s phone, the 1776 Doc shows as having been “created, modified or accessed,” further leading her to believe that Tarrio created it. And she notes, after this metadata, she found Tarrio had contacted Nordean.

    Smith drops it from here.

    • harpie says:

      11:28 AM · Mar 13, 2023

      S: when you told him Tarrio created that did you have factual basis?

      I did. we had recovered it from Tarrio’s phone. he then googled the word “Winter Palace.” he had been sent the doc from a girlfriend. so i believed he had created the document or had some role in it and i still believe it.

      S: your basis for telling him Tarrio … “created” it was that he was sent it? what’s basis for saying he created it as opposed to just receiving it?

      i think he had involvement in creating it. there were different versions of the document. there’s texts between Eryka & Tarrio that’s she’s creating something … She sends it to him … Tarrio googles Winter Palace. After googling it there’s a message sent to Bertino using term Winter Palace. at some point on Tarrio’s phone, there’s a notation that he “created, modified, or accessed”. shortly after that he contacts Nordean. … that leads me to believe–and still believe–that Tarrio had some involvement in the creation of that document.

      Smith moves on.

    • harpie says:

      Here’s Jordan Fischer on this point:

      11:30 AM · Mar 13, 2023

      Miller says Tarrio received the document from a (girl)friend Erika Flores and then googled the phrase “Winter Palace” a few days later. He texted that to Bertino on Jan. 6.

      Miller: “I believed Mr. Tarrio had created the document or had some role in it, and I still believe that.” [THREAD

      Miller says after Enrique Tarrio googled “Winter Palace” there’s a record on his phone of him creating, modifying or accessing the “1776 Returns” document. He then called Ethan Nordean, but Miller doesn’t know what they talked about.

      Smith moves on […]

      To which Marcy responds:
      11:36 AM · Mar 13, 2023

      Oops. This line of questioning may not be helping Nordean as much as Nick Smith thinks.

      He just gave Miller a chance to explain why she believes Tarrio had a role in tweaking Winter Palace doc.

      And, then at 11:37 AM she says LOL! when Brandi writes [above]:
      Smith drops it from here.

    • harpie says:

      Here is Marcy from May 2022:

      2:24 PM · May 19, 2022

      Govt just turned over a 4TB hard drive to the Proud Boys. […]
      Hernandez is about to explain what she believes the USG is sitting on. […]
      One big issue is the 1776 doc that Tarrio got right before the riot.
      Hernandez: Was President Trump the one who sent the document?

      [Well… huh]

      Long pause after Kelly asks when USG plans on handing over that 1776 doc.
      Hernandez has Tarrio’s phone, so hypothetically Tarrio’s communication with the person who sent it. […]

  20. harpie says:

    11:36 AM · Mar 13, 2023

    S[mith] [to MILLER]: he [BLOCK] was filming in an unbroken stream and streaming online at time?
    yes yes. sometimes it went in and out.
    S: but he was attempting to film whole thing?
    S: no place where defendants tell Block, hey, you shouldn’t be filming our march, right?
    [correct] /76

    But, here’s a VIDEO from Kyle Cheney, where BLOCK effectively says that himself:
    11:20 PM · Mar 7, 2023 [VIDEO]

    [Transcript of VIDEO, with location map]
    [12:23 PM] PERSON to NORDEAN: They said he’s [TRUMP] gonna march, they’re gonna want to keep him close to the beast.

    BLOCK: I better get out of here; you guys are talking stuff I don’t want to hear. [0:26] […]

  21. harpie says:

    RE: Forensic transcription…
    12:26 PM · Mar 13, 2023

    Smith showing next clip. // someone says “we’re gonna wrap around” // Smith: do you hear someone say “we’re gonna walk there, take a bad-ass picture, then head back”?
    Agent: i heard “bad-ass picture” …
    Smith wants to show agent a forensic transcript./96 sidebar.

    [The agent is having trouble hearing what Smith says is on the video. Smith wants to show her a forensic transcription to see if that helps her make it out.]

    Now jury being excused for lunch. Attys stay. /97
    Judge is ordering Smith to show AUSA Kenerson the transcript and we’ll take up whether Smith can show it to the witness after the lunch break, at around 1:30pm Breaking now. /98 […]

    [1:48 PM] Now Judge Kelly is saying that Smith’s transcript of the audio is based on an enhancement technique that he knows nothing about. So he’s reluctant to let the transcript in without more info … /101

    Smith (Nordean) saying court had no objection to govt’s transcripts.
    Judge says nobody objected to govt’s transcripts, and govt is objecting to his.

    • harpie says:

      1:54 PM · Mar 13, 2023

      Now, separate issue. Nick Smith (for Nordean) wants to introduce a transcript featuring enhanced footage

      But Judge Kelly wasn’t inclined to let it in. “The problem is is that its based on an enhanced version of a tape that I have no foundation to know what was done to it.” I cant pull apart what person relied on to say a, or what person relied on to say b, Kelly continues.

      Smith says words on tape are demonstrative, the transcript is an aid.
      Kelly says he hears what Smith is saying but this is different than admitting. Kelly: “I can’t allow it”

      Carmen Hernandez is pushing for this too, feeding notes to Smith at the dais.
      Kelly has said he can’t allow it at least two times.

      Smith says transcript was created from a listener who listened to this video file and if witness doesn’t see the same stmt on transcript [] she can testify to that.

      Kelly: Again, if this were a transcript that wasn’t based on an enhanced audio…. if the govt wasn’t objecting, that would be one thing, but they are.

      • bmaz says:

        Lol, the pesky problem with evidence is that you really “do” need a proper foundation. This is why the slickly edited J6 Committee infomercials are not going to be admissible per se.

    • harpie says:

      I have Brandi’s THREAD on this in a comment that’s in moderation.
      This feels to me like the defense is trying to get their conspiracy theories into the court record.

  22. harpie says:

    Marcy: https://twitter.com/emptywheel/status/1635350761306755072
    2:42 PM · Mar 13, 2023

    Nordean lawyer Nick Smith is trying to push Agent Miller to raise issues that defendants have been prevented from raising (eg, informants).

    Dunno what this one is, but Biggs and Nordean were in touch with Alex Jones and Roger Stone, who knew well in advance. [links to Brandi’s tweet]

    > Brandi: https://twitter.com/Brandi_Buchman/status/1635350036610715648
    2:40 PM · Mar 13, 2023

    Smith q: So it is your view this is the first time group is learning of Trump’s movements?
    Obj. Sustained.
    Smith: They said he’s gonna march and keep him close to the beast, that’s what you heard?
    M: Yes

    Now, in clip shown to jurors, there’s a motorcade driving by area of food trucks. Footage on clip says its 12:36 p.m.

    Smith: And the group standing at the food truck is looking at this?
    Miller: at least 1 person is (Rehl, its his footage) & someone says “That’s fucking Trump!”

    Factually – Trump was giving his speech at 12:36 p.m. on 1/6.

    Smith points out, PB group didn’t know the motorcade Rehl was filming wasn’t for Trump, Smith asks if that’s Pence’s motorcade going to pick VP up from Cap?
    Objection. Overruled.
    Miller doesn’t know.

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